VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_14-vv-00422
Package ID: USCOURTS-cofc-1_14-vv-00422
Petitioner: Tammy Schettl
Filed: 2014-05-15
Decided: 2022-01-18
Vaccine: influenza
Vaccination date: 2011-10-04
Condition: Complex Regional Pain Syndrome (CRPS)
Outcome: compensated
Award amount USD: 812005

AI-assisted case summary:
Tammy Schettl filed a petition alleging that her October 4, 2011 influenza vaccination caused her to develop Complex Regional Pain Syndrome (CRPS). The respondent conceded entitlement, and the court issued a ruling on entitlement on August 7, 2018. Subsequent rulings addressed damages, including pain and suffering, and a set-off for a prior settlement. On March 25, 2020, an interim damages award of $152,744.76 was granted for actual pain and suffering and past unreimbursable medical expenses, reflecting a set-off of $51,750.00. The case continued to resolve remaining damages, including health insurance premiums, Medigap, independent case management, housekeeping, and yard care. On January 18, 2022, a final damages award was issued, totaling $812,005.00. This amount includes a lump sum of $659,261.00 for life care expenses, lost earnings, and projected pain and suffering, plus an amount to purchase an annuity for future life care expenses. The petitioner, an adult, received compensation for her CRPS, which was determined to be a Table injury. The case progressed through multiple decisions to finalize the compensation for her vaccine-related injury.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_14-vv-00422-2
Date issued/filed: 2020-04-20
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 3/25/2020) regarding 207 DECISION of Special Master. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made.
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Case 1:14-vv-00422-UNJ Document 211 Filed 04/20/20 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: March 25, 2020
* * * * * * * * * * * * * * * * * * * * * * * * *
TAMMY SCHETTL, * PUBLISHED
*
Petitioner, * Case No. 14-422V
*
v. * Special Master Nora Beth Dorsey
*
SECRETARY OF HEALTH * Interim Damages; Pain and Suffering;
AND HUMAN SERVICES, * Past Unreimbursable Medical
* Expenses; Influenza (“Flu”) Vaccine;
Respondent. * Complex Regional Pain Syndrome
* (“CRPS”).
* * * * * * * * * * * * * * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.
Colleen Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING INTERIM DAMAGES1
On May 15, 2014, petitioner filed a petition for compensation under the National Vaccine
Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq. (the “Vaccine Act” or “the
Program”),2 alleging that she suffered from Complex Regional Pain Syndrome (“CRPS”) caused
by her October 4, 2011 influenza (“flu”) vaccination. Amended (“Am.”) Petition at 1-2 (ECF
No. 29). Respondent conceded that petitioner is entitled to compensation, and a Ruling on
Entitlement issued on August 7, 2018. Ruling on Entitlement dated Aug. 7, 2018 (ECF No.
116).
1 Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is required to post it on the United States Court of Federal Claims’ website in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This means the Decision will
be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b),
petitioner has 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.
Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent
subparagraph of 42 U.S.C. § 300aa (2012).
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Because the parties had been unsuccessful in resolving pain and suffering damages, a
damages hearing was held on August 9 and 10, 2018. A ruling on pain and suffering issued on
January 22, 2019. There, the undersigned awarded petitioner $200,000.00 for actual pain and
suffering and “$10,000.00 per year reduced to net present value, for the rest of her life
expectancy, for future pain and suffering.” Ruling dated Jan. 22, 2019, at 14 (ECF No. 145).
The undersigned also issued a ruling regarding the set-off of petitioner’s settlement with the
vaccine administrator on March 6, 2019. Ruling dated Mar. 6, 2019 (ECF No. 149).
Although the parties are working together to resolve the remaining damages questions in
light of the undersigned’s rulings, they continue to disagree on a number of matters. At issue
here is whether the undersigned can grant petitioner’s motion for an interim damages award for
actual and future pain and suffering and past unreimbursable medical expenses. The undersigned
finds that (1) the Vaccine Act permits an award of interim damages, (2) this case presents an
appropriate circumstance for such an award, and (3) petitioner is entitled to receive an interim
damages award for actual pain and suffering and past unreimbursable medical expenses.
Therefore, the undersigned finds an award of petitioner’s actual pain and suffering, in the
amount of $200,000.00, and past unreimbursable medical expenses, in the amount of $4,494.76,
for a total interim damages award of $204,494.76 appropriate in this case. Pursuant to the
Ruling on Set-off, the undersigned finds petitioner’s interim damages award subject to offset in
the amount of $51,750.00, making petitioner’s total interim damages award $152,744.76.
I. PROCEDURAL HISTORY
Most of the procedural history of this case was set forth in the Ruling on Pain and
Suffering and is incorporated herein by reference. See Ruling dated Jan. 22, 2019, at 2-3 (ECF
No. 145). A brief summary of the relevant procedural history after the undersigned’s Ruling on
Pain and Suffering is set forth here.
On April 5, 2019, petitioner filed a sworn declaration, indicating that she is claiming only
expenses accumulated following her settlement with Olmsted County, and filed her complete
breakdown of her out-of-pocket expenses. Petitioner’s Exhibits (“Pet. Exs.”) 66-67. On April
19, 2019, respondent filed a response to petitioner’s request for past out-of-pocket expenses,
detailing respondent’s objections to each line of out-of-pocket expenses and requesting
additional evidence. (ECF No. 155). Additionally, on April 19, 2019, the parties filed a joint
status report, listing the elements of damages that remained unresolved. Joint Status Rept., filed
Apr. 19, 2019 (ECF No. 156).
On May 3, 2019, respondent filed his updated life care plan. Respondent’s Exhibit
(“Resp. Ex.”) I. With the updated life care plan, respondent filed a status report, summarizing
the remaining areas of damages and indicating where the parties are in agreement. Resp. Status
Rept., filed May 3, 2019 (ECF No. 158).
The undersigned directed the parties to file additional documentation to assist her with
resolving the parties’ disagreements as to damages. Order dated June 5, 2019 (ECF No. 159). In
response, respondent filed a report on the present value of the Court’s future pain and suffering
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Case 1:14-vv-00422-UNJ Document 211 Filed 04/20/20 Page 3 of 12
award from his economist, Dr. Patrick Kennedy, on June 12, 2019, and petitioner filed a report
from her economist, Dr. Mark McNulty, on June 14, 2019. Resp. Ex. J; Pet. Ex. 69. Petitioner
also filed a memorandum on the pain and suffering damages calculation on June 14, 2019, which
respondent filed a response to on July 19, 2019. Petitioner’s Memorandum on Pain and
Suffering Damages Calculation (“Pet. Pain & Suffering Mem.”), filed June 14, 2019 (ECF No.
163); Resp. Status Rept., filed July 19, 2019 (ECF No. 167).
On July 5, 2019, petitioner filed a revised list of out-of-pocket expenses with supporting
documentation. Pet. Ex. 70. On October 4, 2019, respondent filed his analysis of petitioner’s
revised out-of-pocket expenses and requested additional evidence. Resp. Ex. K. In response,
petitioner filed documentation of her outstanding medical payment balances on November 6,
2019. Pet. Ex. 72. On November 25, 2019, respondent filed an updated analysis in light of
petitioner’s documentation regarding her outstanding balances. Resp. Ex. L.
On December 10, 2019, the undersigned held a status conference during which she
addressed the issue of net present value of the future pain and suffering award. Order dated Dec.
11, 2019 (ECF No. 188). She explained that she finds petitioner’s approach more persuasive,
which allots $10,000 per year to petitioner until the cap is reached. Id. at 1. The parties
indicated that they reached an agreement as to the amount for past unreimbursable expenses. Id.
Even though petitioner previously withdrew her loss of earnings claim in August 2018,
petitioner’s counsel reported during this status conference that petitioner plans to now seek lost
wages.3 Id.; Pet. Status Rept., filed Aug. 8, 2018 (ECF No. 115). Additionally, despite the
parties’ agreement that there are additional damages issues to be determined, petitioner’s counsel
informed the Court and respondent’s counsel of his intent to file a motion for an interim award of
damages.
On December 19, 2019, petitioner filed a motion for an interim damages award,
requesting an interim damages award for past and future pain and suffering and past
unreimbursable medical expenses. Petitioner’s Motion for an Interim Damages Award (“Pet.
Mot.”), filed Dec. 19, 2019, at 2 (ECF No. 189). On February 26, 2020, respondent filed his
response and objections to petitioner’s motion for an interim damages award, and petitioner filed
a reply on March 4, 2020. Respondent’s Response and Objections to Pet. Mot. (“Resp.
Response”), filed Feb. 26, 2020 (ECF No. 200); Petitioner’s Reply to Resp. Response (“Pet.
Reply”), filed Mar. 4, 2020 (ECF No. 201).
This case is now ripe for a decision on interim damages.
II. SUMMARY OF RELEVANT EVIDENCE
Most of the relevant history of this case, including the summary of medical records and
petitioner’s testimony at the damages hearing, was set forth in the Ruling on Pain and Suffering
and is incorporated herein by reference. See Ruling dated Jan. 22, 2019, at 3-9 (ECF No. 145).
A brief summary of the relevant evidence relating to this Decision is set forth here.
3 Petitioner’s claim for lost wages remains unresolved and will not be addressed in this Decision.
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Case 1:14-vv-00422-UNJ Document 211 Filed 04/20/20 Page 4 of 12
Before petitioner’s vaccine injury, she was very independent: she raised seven foster
children as a single mother; she taught her foster children how to fish, jet ski, and ride a
motorcycle; she was a farmer and milked ninety cows twice a day; she drove tractors, bailed hay,
gardened, did yard work, mowed her lawn, and took care of her own snow removal; and she
made jewelry and worked as a seamstress. Transcript (“Tr.”) 87-89. For her job, petitioner is
required to travel. Tr. 93. As a result of her vaccine injury to her arm, driving is very difficult
with only one hand on the wheel, especially when it is icy, snowing, or raining. Tr. 93, 95.
Petitioner can no longer do her own yard work and housework, and her daughter “pretty much
helps [petitioner] with everything.” Tr. 96-97.
Over time, petitioner’s condition has continued to worsen. Petitioner’s chronic pain led
to mood changes and she described being in a “vicious circle of pain.” Tr. 28-30. During the
hearing, she testified that she continued to have a “slow steady increase of . . . pain,” and in her
left arm she continued to have “sharp pains, dull pains, pressure, [and] hand pain.” Tr. 85. Since
her injury, she has tried many procedures, medications, and therapies to address her chronic pain,
but none have worked. See Tr. 47-50, 60-78. In 2016, petitioner’s Primary Care Physician
(“PCP”), Nurse Practitioner Jeremy Waldo, APRN, CNP, RN summarized petitioner diagnosis
and clinical course, and stated that “[g]iven the long standing nature of the [petitioner’s] pain and
an exhaustion of treatment options, I do not anticipate a cure. Rather continued progressive pain,
unfortunately, appears to be more likely.” Pet. Ex. 22 at 1.
On September 3, 2019, petitioner filed a memorandum regarding the impact her vaccine
injury has had on her ability to work. Petitioner’s Memorandum on Work Life (“Pet. Work Life
Mem.”), filed Sept. 3, 2019 (ECF No. 172). Petitioner cites to her testimony, as well as the
testimony of Liz Kattman and Dr. Kinsbourne, to illustrate how her injury has made it difficult to
“take care of [her]self, do [her] job, [and] get through [her] day,” and thus, she must stop
working. Id. at 1-11 (quoting Tr. 28).
Along with the memorandum, petitioner filed a sworn declaration, in which she explained
how she plans to stop working and apply for disability. Pet. Ex. 71. Petitioner explained that
“[t]he only reason that [she] ha[s] not already stopped working is that [she] [is] the only one who
pays [her] bills,” but “[she] know[s] that [she] ha[s] to stop working.” Id. at ¶¶ 4-5. Her
condition continues to worsen, which in turn decreases her ability to do her job. Id. at ¶ 5.
In a letter dated November 13, 2019, petitioner’s physician, Dr. Keith Bengtson,
recommended petitioner stop working and opined that she is disabled. Pet. Ex. 74. Dr. Bengtson
explains that due to her ongoing pain and problems sleeping, “[petitioner] has experienced
progressive problems with her memory and decreased performance at work” and “[s]he is
beginning to make mistakes at work which can have dire consequences to her clients.” Id. at 1.
He adds that petitioner has difficulty “driving to and from work, especially in the wintertime,
because she is driving one-handed and her arms [] fatigue easily because of ongoing weakness.”
Id. Petitioner cannot take “neuro-modulatory pain medications because the side effects of these
medications will compound her cognitive difficulties.” Id. Thus, Dr. Bengtson concludes her
limitations, restrictions, and difficulties make petitioner disabled from her given profession. Id.
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On February 10, 2020, in an unopposed motion for an extension of time to file
petitioner’s completed disability application and additional letter from her primary care provider,
petitioner noted her difficulty in retrieving the requested documentation. Pet. Mot. for Extension
of Time, filed Feb. 10, 2020 (ECF No. 197). Specifically, petitioner stated that due to her unpaid
medical balances, she has not been able to make an appointment to get a second opinion letter
from a medical provider, and such letter is required for petitioner to file for disability under her
employer’s policy. Id. at 1. Petitioner indicated that she is attempting to work around this
problem, but noted it is complicated and she may ultimately be unsuccessful. Id. Petitioner
explained that “receipt of an interim award from this Program would solve this and other
problems” and “would speedup the resolution of this claim and would benefit the [p]etitioner
immensely.” Id.
In a sworn declaration dated March 3, 2020, petitioner maintains that “[she] [is] in the
process of applying for disability through [her] employer and gathering the necessary supporting
documentation for [her] disability claim.” Pet. Ex. 76 at ¶ 2. Petitioner explains “[her] pain has
increased over this past winter,” making work more difficult. Id. at ¶ 3. Specifically, she
mentions having problems writing and typing, and due to the cold weather, which “has become
intolerable,” it is extremely difficult to travel for work. Id. at ¶ 4. Petitioner also reports that
since she informed her employer about her intent to apply for disability, her workload has
increased without additional assistance and stricter guidelines have been put in place, making her
job less flexible. Id. at ¶ 5. Additionally, petitioner indicates that she has presented to the
emergency room seeking relief from her pain on numerous occasions. Id. at ¶ 3. “[D]ue to [her]
extreme medical debt,” she is “unable to see a doctor on a regular basis.” Id. In fact, “[a]ll of
[her] providers have sent [her] balances to collections.” Id.
On March 11, 2020, petitioner filed a status report indicating that she planned to submit
her disability application on March 12, 2020. Pet. Status Rept., filed Mar. 11, 2020 (ECF No.
203). On the following day, petitioner filed her Public Employees Retirement Association of
Minnesota (“PERA”) disability application. Pet. Ex. 84. Even though petitioner recently filed
her PERA disability application, it is unclear when petitioner will begin to receive disability
payments, if disability is granted.
III. STATEMENT OF THE ISSUES
The first issue is whether the statute permits an award of interim damages. Assuming
that the statute allows a special master to award interim damages, the second issue is whether
this case presents an appropriate circumstance for such an award. The third issue is what type(s)
and amount of damages petitioner may receive on an interim basis. The undersigned discusses
each of these issues in turn.
IV. SUMMARY OF PARTIES’ ARGUMENTS
A. Petitioner’s Contentions
Petitioner asserts that the Vaccine Act authorizes the payment of interim damages. Pet.
Mot. at 2. Petitioner cites to Lerwick v. Secretary of Health & Human Services, where Special
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Master Moran highlighted several Federal Circuit rulings which have permitted multiple
damages awards in Program cases, arguing that these cases support an award of interim damages
in this case. Id. (citing Lerwick v. Sec’y of Health & Human Servs., No. 06-847V, 2014 WL
1897656, at *3-8 (Fed. Cl. Spec. Mstr. Apr. 16, 2014); Order, Tembenis v. Sec’y of Health &
Human Servs., No. 2013-5029 (Fed. Cir. May 16, 2013); Order, Heinzelman v. Sec’y of Health
& Human Servs., No. 2011-5127 (Fed. Cir. June 13, 2012); 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)). Petitioner noted that Special Master Moran in Lerwick found that the
Federal Circuit in Avera and Shaw “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.” Id. (quoting Lerwick, 2014 WL 1897656, at *4). Thus, “since interim awards of
attorney’s fees are sanctioned under Avera and Shaw and are now commonplace in the Vaccine
Program, there is no reason why an interim award of uncontested damages should not be legally
authorized.” Id.
In further support of petitioner’s argument that the Vaccine Act authorizes the payment
of interim damages, petitioner cites to a decision issued by the undersigned in Day v. Secretary
of Health & Human Services, where petitioner was awarded an interim damages award of past
pain and suffering. Pet. Mot. at 3 (citing Day v. Sec’y of Health & Human Servs., No. 12-630V,
2016 WL 3457749 (Fed. Cl. Spec. Mstr. May 31, 2016), mot. for rev. denied, 129 Fed. Cl. 450
(2016)). Petitioner also cites a more recent decision where Senior Judge Smith upheld an interim
damages award. Id. (citing Fairchild v. Sec’y of Health & Human Servs., 138 Fed. Cl. 29
(2018)).
Petitioner explains that her current condition makes it extremely difficult and dangerous
to continue working, but she cannot afford to stop working. Pet. Mot. at 2. Although the parties
are still working out the details for several categories of damages, petitioner states past and
future pain and suffering damages and past unreimbursable medical expenses have been
finalized. Id. at 1-2. Specifically, petitioner notes that the undersigned has already determined
the amount of damages she plans to award for past and future pain and suffering and the parties
have agreed that petitioner’s past unreimbursable medical expenses are $4,494.76. Id. at 3.
Thus, petitioner requests this Court grant petitioner’s motion for an interim award for past and
future pain and suffering and past unreimbursable medical expenses so that petitioner can stop
working pursuant to her doctor’s orders. Id. at 2.
Petitioner argues she has been suffering from “chronic, progressive pain” for over eight
years, and although respondent conceded entitlement in January 2015, damages are still not
resolved and “the end is not in sight.” Pet. Reply at 1-2. Even though petitioner received a
settlement from Olmsted County in September 2015, during the pendency of this case, she states
“[t]hat money is long gone.” Id. at 2. Thus, because “[p]etitioner desperately needs these funds
to be released” and the amounts for past and future pain and suffering and past unreimbursable
expenses have been determined, an interim damages award is appropriate. Id. at 2.
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B. Respondent’s Contentions
Respondent argues that an award of interim damages is improper because (1) “there is no
statutory basis in the Vaccine Act to award interim damages;” (2) “interim damages awards
potentially open the door to an expansion of the right to bring lawsuits against vaccine
administrators or manufacturers, undermining one of the key purposes of the Vaccine Act;” and
(3)“petitioner has not demonstrated any undue hardship that would warrant an interim damages
award.” Resp. Response at 7.
First, respondent contends that the language of the Vaccine Act does not permit special
masters to award interim damages. Resp. Response at 4. Respondent argues that the decisions
petitioner relied on in her motion are nonprecedential and not binding. Id. at 4 n.5.
Respondent next argues that “the fact that interim attorneys’ fee decisions are routinely
authorized by the Program is not germane to the question of whether interim injury
compensation is similarly allowed” because “unlike injury compensation payments, ‘issues of
attorneys’ fees and costs are collateral in nature.’” Resp. Response at 5 (quoting Grice v. Sec’y
of Health & Human Servs., 36 Fed. Cl. 114, 119 (1996)).
Third, respondent argues that potential procedural problems will arise if an interim
damages decision is issued. Resp. Response at 6. Specifically, respondent contends that if an
interim damages award is granted, there will be multiple judgments requiring multiple elections,
and “a petitioner who accepts one judgment is not clearly bound to accept a separate judgment.”
Id. Thus, if petitioner were to accept some damages judgments but reject others in favor of
bringing a civil lawsuit, then “one of the overriding purposes of the Vaccine Act—to shield
vaccine manufacturers and administrators from litigation and liability awards—would be
negated.” Id. at 6-7.
Even if the language of the Vaccine Act permits an award of interim damages,
respondent argues petitioner has not made a showing “that the extraordinary step of issuing an
interim award is justified.” Resp. Response at 5. Respondent contends petitioner failed to
provide evidence supporting her claim that an interim damages award would allow her to stop
working. Id.
Furthermore, respondent maintains that “[p]etitioner d[id] not provide any reason for an
immediate need for an interim award, or identify any extreme family or financial hardship” to
justify such an award. Resp. Response at 5. In support, respondent points out that (1) “petitioner
has primary health insurance coverage through her employer;” (2) there is no indication, unlike
the petitioners in Lerwick and Day, that petitioner’s “critical needs are not being met or that she
will lose access to necessary funds to care for her vaccine-related injury;” and (3) petitioner,
unlike the petitioners in Lerwick, Day, and Fairchild, “received a $58,270.07 settlement from
Olmsted County, the vaccine administrator, and its insurance providers during the pendency of
this case.” Id. at 5-6. Respondent also points out that “[p]etitioner has continued to work since
her injury, and has no lost income,” and respondent argues “petitioner may not experience a loss
of earnings even if she were to stop working before her full life expectancy.” Id. at 4.
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“Aside from the fact that the Vaccine Act does not permit an award of interim damages,”
respondent concludes that “petitioner should not be permitted to prolong and protract the
resolution of damages by failing to produce documentation necessary to resolve the same, and
then at the same time, request that the Court award partial damages on the grounds that two
elements of damages are ‘settled.’”4 Resp. Response at 4. Respondent explains that “[p]etitioner
has been asked repeatedly to produce documentation of her alleged inability to work due to
CRPS as well as to produce complete documentation relevant to the calculation of lost future
earnings,” but “has not done so.” Id.
V. ANALYSIS
A. The Statute Permits an Award of Interim Damages
In Lerwick, the special master awarded interim damages to petitioner for past pain and
suffering and past unreimbursed medical expenses. 2014 WL 1897656, at *11. Despite the
respondent’s argument that “a” decision should be interpreted to mean “one” decision, the
special master found that the rules of statutory construction permit interpretive flexibility. Id. at
*3.5 The undersigned agrees with this analysis and finds that the plain language of the Vaccine
Act does not prohibit special masters from issuing multiple decisions on compensation. The
undersigned further notes that this interpretation of the statute comports with the overall intent of
Congress,6 who instructed that the purpose of the Vaccine Act is to compensate vaccine-injured
individuals “quickly, easily, and with certainty and generosity.” H.R. Rep. 99-908, at 3 (1986).
The question of whether the Vaccine Act authorizes multiple decisions on compensation
has also been addressed by the Federal Circuit. In Avera, the Federal Circuit stated that special
masters have the authority to issue multiple decisions awarding attorneys’ fees and costs. 515
4 Respondent does acknowledge that the parties agreed that petitioner’s past unreimbursable
medical expenses are $4,494.76. Resp. Response at 2.
5 The special master explained, “[i]n 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.” Lerwick, 2014 WL 1897656, at *3 (citing Colorado v. Sunoco, Inc., 337 F.3d 1233, 1241
(10th Cir. 2003). The special master added that “[t]he Federal Circuit has used the same
guidelines in construing patents” and “[t]he Court of Federal Claims has also distinguished
indefinite articles from the definite article when interpreting a contract provision.” Id. (citing
Sandisc Corp. v. Kingston Tech. Co., Inc., 695 F.3d 1348, 1360 (Fed. Cir. 2012); 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.”)).
6 It is well established that principles of statutory construction require a statute to be interpreted
in a way consistent with Congress’ intent. See Saunders v. Sec’y of Health & Human Servs., 25
F.3d 1031, 1036 (Fed. Cir. 1994); Doyon, Ltd. v. United States, 214 F.3d 1309, 1314 (“The
objective when interpreting statutes is to give effect to the intent of Congress. . . . [T]o fully
understand the meaning of a statute, we look ‘not only to the particular statutory language, but to
the design of the statute as a whole and to its object and policy.’”).
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F.3d at 1352. Moreover, the Federal Circuit rejected the respondent’s arguments against interim
damages in both Heinzelman and Tembenis.
In Heinzelman, the Federal Circuit granted petitioner’s motion for interim damages and
ordered the Court of Federal Claims to issue an interim damages award to petitioner. Order at 2,
Heinzelman, No. 2011-5127 (Fed. Cir. June 13, 2012). In Tembenis, the Federal Circuit rejected
respondent’s concerns that interim damages would compromise the structure of the Program by
causing inconsistent elections and thus result in claims outside of the Program. Order at 5-6,
Tembenis, No. 2013-5029 (Fed. Cir. May 16, 2013). With regard to the respondent’s arguments
about the potential for inconsistent elections of judgments, the Federal Circuit found that a
judicial officer could hold that the election to accept a judgment awarding interim compensation
implied the acceptance of a later judgment awarding final compensation, thus preventing the
problem of inconsistent elections. Id. at 5-6; accord Lerwick, 2014 WL 1897656, at *7.
The Court of Federal Claims, like the Federal Circuit, rejected the respondent’s
arguments against awarding interim damages. See Fairchild, 138 Fed. Cl. at 31-34 (denying
respondent’s motion for review and finding the special master had authority to order an interim
damages award); Day, 129 Fed. Cl. at 453-54 (denying respondent’s motion for review of the
undersigned’s award of interim damages for past pain and suffering and determining that interim
damages were permissible under the Vaccine Act).
While the undersigned is not bound by these nonprecedential rulings, she finds their
reasoning to be sound, in accordance with the Vaccine Act, and therefore highly persuasive. For
these reasons, the undersigned finds that special masters possess the legal authority to award
compensation on an interim basis.
B. An Award of Interim Damages Is Appropriate in This Case
Now that the undersigned has determined that special masters possess the discretionary
authority to award interim damages, she must determine whether interim damages are
appropriate under the facts and circumstances of this case.
The basis for an award of interim damages is the August 7, 2018 Ruling on Entitlement,
which found that petitioner established that the flu vaccine administered on October 4, 2011
caused her to develop CRPS. Ruling on Entitlement dated Aug. 7, 2018, at 1-2 (ECF No. 116).
It has been almost nine years since the onset of petitioner’s injury and five years since
respondent conceded entitlement. See Respondent’s Amended Rule 4(c) Report at 2-3 (ECF No.
33). As respondent noted, the parties are still in the process of determining certain items of
damages. Resp. Response at 2. The final resolution of these damages could take several more
months, as petitioner has been unable to attain the required documentation to prove some of
these damages.7 See Pet. Mot. at 2-3.
7 After filing her motion for interim damages, petitioner filed some of the required
documentation. See Pet. Exs. 76-84. At the time of this Decision, documentation remains
outstanding.
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While her future damages award remains pending, petitioner has an immediate need for
an interim damages award. Due to financial hardship, petitioner has been unable to get a second
opinion letter from a medical provider, which is required for petitioner to file for disability under
her employer’s policy and required for resolution of certain items of damages still in dispute.
Pet. Mot. at 1. Petitioner currently owes money to several medical providers, and does not
maintain a relationship with a PCP because of such lack of funds. Pet. Reply at 2. Furthermore,
she cannot afford to stop working, even though her current condition makes it extremely difficult
to continue and her doctor has declared her disabled. Pet. Mot. at 2. Although petitioner has
completed her PERA disability application, it is unknown when she will receive payments under
the policy, assuming PERA grants petitioner’s disability application. An interim damages award
will assist petitioner in obtaining the required documentation for the remaining damages issues to
be resolved, and will allow petitioner to stop working.
Respondent argues this case is different from Lerwick, Day, and Fairchild because
petitioner received a settlement from the vaccine administrator during the pendency of this case.
See Resp. Response at 5-6. However, petitioner received this settlement in 2015—almost five
years ago—and her damages in the above-mentioned matter are still unresolved. As petitioner
stated, the money she received from that settlement is gone. Pet. Reply at 2. The undersigned
already addressed this issue in a ruling regarding the set-off of petitioner’s settlement with the
vaccine administrator on March 6, 2019. See Ruling dated Mar. 6, 2019 (ECF No. 149). The
undersigned finds that based on the unique facts and circumstances here, the petitioner’s 2015
settlement award does not preclude her from receiving an interim damages award at this time.
Respondent also argues that “[t]here is no indication that [petitioner’s] critical needs are
not being met or that she will lose access to necessary funds to care for her vaccine-related
injury, as was the case in Lerwick [and] Day.” Resp. Response at 5. The undersigned does not
find this argument persuasive. As previously mentioned, petitioner’s medical debts are so past
due that she is unable to maintain a relationship with a PCP. Nor is petitioner able to stop
working and focus on her health because of a lack of funds. The undersigned finds that
petitioner has made a persuasive case that there is extreme hardship that merits an interim
damages award. See Day, 129 Fed. Cl. at 451.
Like the petitioner in Lerwick, the petitioner here has “suffer[ed] significant medical
problems.” Lerwick, 2014 WL 1897656, at *12. This interim award will alleviate some of
petitioner’s difficulties over the past nine years since her injury and over five years since
respondent conceded entitlement. See id.
This decision does not contemplate that interim damages would be routinely or even
frequently awarded, but in this case, petitioner has made a persuasive case that there is extreme
hardship and that accordingly, the purpose of the Vaccine Act is better fulfilled by making the
interim award. For all of the reasons above, the undersigned finds that an award of interim
damages is appropriate in this case.
10

Case 1:14-vv-00422-UNJ Document 211 Filed 04/20/20 Page 11 of 12
C. Petitioner May Receive Interim Damages for Past Unreimbursable Medical
Expenses
Petitioner’s past unreimbursable medical expenses are uncontested. Both parties agree
petitioner’s past unreimbursable medical expenses equals $4,494.76. Pet. Mot. at 3; Resp.
Response at 2. Thus, the undersigned finds petitioner is entitled to receive an award of
$4,494.76 for past unreimbursable medical expenses in an interim damages award.
D. Petitioner May Receive Interim Damages for Only Actual Pain and Suffering
“[I]n calculating the amount of compensation for pain and suffering and emotional
distress under the Vaccine Act, the statutory cap . . . must be applied when determining the
amount of “compensation” and the discount provision . . . must then be applied to the
‘compensation’ amount to determine the immediate lump sum that is to be paid.” Youngblood v.
Sec’y of Health & Human Servs., 32 F.3d 552, 555 (Fed. Cir. 1994). Due to the inherent
unpredictability of these factors, a trial court should generally not be reversed “if it adopts a rate
between one and three percent and explains its choice.” Jones & Laughlin Steel Corp. v. Pfeifer,
462 U.S. 523, 549 (1983).
The undersigned issued a ruling on pain and suffering on January 22, 2019, awarding
petitioner $200,000.00 for actual pain and suffering. Ruling dated Jan. 22, 2019, at 14 (ECF No.
145). Thus, the undersigned finds petitioner is entitled to receive an interim damages award of
$200,000.00 for actual pain and suffering.
As to future pain and suffering, the undersigned finds an interim damages award
representing this item of damages inappropriate at this time. Although the undersigned
previously addressed the net present value for future pain and suffering and found petitioner’s
approach most persuasive, the net present value for future pain and suffering is nonetheless in
dispute. Consistent with previous decisions in this Court and in the Federal Circuit, the
undersigned finds an award of only uncontested items of damages—here, past unreimbursable
medical expenses and actual pain and suffering—to be appropriate in this interim award.
In Tembenis, the Federal Circuit in a nonprecedential order, found petitioners were
permitted to receive undisputed compensation while the disputed items of damages were on
appeal. Likewise, in a nonprecedential order in Heinzelman, the Federal Circuit awarded
petitioner damages in an amount less the amount at dispute. In Fairchild, the special master
awarded petitioner an interim damages award of undisputed damages, which Senior Judge Smith
held he had authority to do so. Thus, the undersigned finds an award of interim undisputed
damages appropriate.
Further, in Lerwick, respondent raised a concern regarding “future damages,” which
would arise only if the petitioner died. Lerwick, 2014 WL 1897656, at *11. In response, the
special master awarded petitioner only those damages that were not subject to change—
specifically, past unreimbursable medical expenses and emotional distress. Id. Like the special
master in Lerwick, who relied on Tembenis, the undersigned finds an interim award implicating
future pain and suffering could cause complications.
11

Case 1:14-vv-00422-UNJ Document 211 Filed 04/20/20 Page 12 of 12
VI. APPLICATION OF SET-OFF
On March 6, 2019, the undersigned issued a ruling regarding the set-off of petitioner’s
settlement with the vaccine administrator. Ruling dated Mar. 6, 2019 (ECF No. 149). During
the pendency of her vaccine case in this Court, petitioner executed a “Release of All Claims”
with the employer of the vaccine administrator and its insurer in consideration of $58,270.07. Id.
at 2-3 (citing Pet. Ex. 19 at 4). In her ruling, the undersigned found the Vaccine Act is a
secondary payer as to the insurance policy and that petitioner’s award of compensation is subject
to a set-off. Id. at 2. The undersigned explained that if petitioner demonstrated that she was not
seeking expenses previously reimbursed by the vaccine administrator in the amount of $6,520.07
in her present Vaccine Act case, then her Vaccine Program award would be offset by only
$51,750.00. Id. at 6. Thereafter, petitioner filed a sworn declaration on April 5, 2019, stating
that she is claiming only those expenses accumulated following her settlement with Olmsted
County. Pet. Ex. 66. Therefore, the undersigned finds petitioner’s interim damages award shall
be offset by $51,750.00.
VII. CONCLUSION
The undersigned finds that petitioner is entitled to an award of interim damages under the
unique facts and circumstances of this case. An award of petitioner’s actual pain and suffering
and past unreimbursable medical expenses is appropriate in this case, and there is no reason to
delay the entry of judgment on these items of damages, especially given petitioner’s particularly
difficult financial circumstances. The undersigned reserves ruling on the remaining statutory
elements of damages for a future date.
Accordingly, the undersigned awards a lump sum payment of $152,744.76,8
representing actual pain and suffering and past unreimbursable expenses, less the set-off
amount, in the form of a check made payable to petitioner, Tammy Schettl.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
court SHALL ENTER JUDGMENT in accordance herewith.9
IT IS SO ORDERED.
s/ Nora Beth Dorsey
Nora Beth Dorsey
Special Master
8 $152,744.76 equals actual pain and suffering ($200,000.00) plus past unreimbursable medical
expenses ($4,494.76), less the amount representing petitioner’s set-off ($51,750.00).
9 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
12

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_14-vv-00422-3
Date issued/filed: 2021-12-06
Pages: 6
Docket text: PUBLIC ORDER/RULING (Originally filed: 11/10/2021) regarding 286 Findings of Fact & Conclusions of Law. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made.
--------------------------------------------------------------------------------
Case 1:14-vv-00422-UNJ Document 287 Filed 12/06/21 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: November 10, 2021
* * * * * * * * * * * * * * *
TAMMY SCHETTL, * PUBLISHED
*
Petitioner, * No. 14-422V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Ruling on Damages; Health Insurance
AND HUMAN SERVICES, * Premiums; Medigap; Influenza (“Flu”)
* Vaccine; Complex Regional Pain Syndrome
Respondent. * (“CRPS”).
*
* * * * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.
Colleen Hartley, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON REMAINING ITEMS OF DAMAGES1
I. INTRODUCTION
On May 15, 2014, petitioner filed a petition for compensation under the National Vaccine
Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq. (“Vaccine Act” or “the Program”),2
alleging that she suffered from Complex Regional Pain Syndrome (“CRPS”) caused by her
October 4, 2011 influenza (“flu”) vaccination. Amended (“Am.”) Petition at 1-2 (ECF No. 29).
Respondent conceded that petitioner is entitled to compensation, and a Ruling on Entitlement
issued on August 7, 2018. Ruling on Entitlement dated Aug. 7, 2018 (ECF No. 116).
1 Because this Ruling contains a reasoned explanation for the action in this case, the undersigned
is required to post it on the United States Court of Federal Claims’ website in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services). This means the Ruling will be available to
anyone with access to the Internet. In accordance with Vaccine Rule 18(b), petitioner has 14
days to identify and move to redact medical or other information, the disclosure of which would
constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the
identified material fits within this definition, the undersigned will redact such material from
public access.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this Ruling to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.

Case 1:14-vv-00422-UNJ Document 287 Filed 12/06/21 Page 2 of 6
Because the parties had been unsuccessful in resolving pain and suffering damages, a
damages hearing was held on August 9 and 10, 2018. A ruling on pain and suffering issued on
January 22, 2019. There, the undersigned awarded petitioner $200,000.00 for actual pain and
suffering and “$10,000.00 per year reduced to net present value, for the rest of her life
expectancy, for future pain and suffering.” Ruling Awarding Pain and Suffering Damages dated
Jan. 22, 2019, at 14 (ECF No. 145). Shortly thereafter, the undersigned issued a ruling regarding
the set-off of petitioner’s settlement with the vaccine administrator on March 6, 2019. Ruling on
Set-off dated Mar. 6, 2019 (ECF No. 149).
Although the parties continued to work together to resolve the remaining items of
damages, they continued to disagree on a number of matters, and thus, the undersigned issued a
decision awarding interim damages. Decision Awarding Interim Damages dated Mar. 25, 2020
(ECF No. 207). She found an award for petitioner’s actual pain and suffering and past
unreimbursable medical expenses, offset by the amount found in the Ruling on Set-off,
appropriate in this case. Id. at 2.
Since the undersigned’s decision awarding interim damages, the parties have agreed on
compensation for petitioner’s loss of earnings and the remainder of petitioner’s pain and
suffering award. Petitioner’s (“Pet.”) Status Report (“Rept.”), filed July 29, 2021 (ECF No.
268). In a status conference held on September 28, 2021, the undersigned found the petitioner
was entitled to the following items for the remainder of petitioner’s life expectancy: (1)
independent case management every other year; (2) housekeeping services twice per month; and
(3) yard care, snow removal, and handyman services. Order dated Sept. 30, 2021, at 2-3 (ECF
No. 280).
Pursuant to the most updated consolidated Life Care Plan, the parties have agreed to most
items of damages. See Respondent’s Exhibit (“Resp. Ex.”) N. Respondent has agreed to pay
health insurance premiums from 2022 to 2024, so petitioner can attend a comprehensive three-
week pain management program at the Mayo Clinic to help her develop skills strategies to
address and manage her ongoing pain from CRPS. Id. at 8.
On November 8, 2021, the undersigned held a status conference to discuss the two items
of damages that remain in dispute: (1) whether petitioner is entitled to the costs of health
insurance premiums from 2025 through 2031 (when she becomes eligible for Medicare) and (2)
whether petitioner is entitled to Medigap. The parties requested that the undersigned adjudicate
these issues that remain in dispute. With the parties’ consent, the undersigned provided an oral
ruling on her findings, set forth in this Ruling. The undersigned finds that petitioner is entitled to
the cost of health insurance premiums from 2025 to 2031, discounted by the amount that she
would have paid toward the premiums if she were still employed. The undersigned also finds
that petitioner is not entitled to payment reflecting the cost of Medigap.
2

Case 1:14-vv-00422-UNJ Document 287 Filed 12/06/21 Page 3 of 6
II. BACKGROUND3
The framework for the undersigned’s ruling rests on three foundational bases: (1) The
Vaccine Act’s language with respect to compensation; (2) the nature of petitioner’s vaccine
injury, CRPS; and (3) the fact petitioner is now disabled, but prior to her disability she had health
insurance coverage through her employer, Olmstead County.
The Vaccine Act provides that,
Compensation awarded under the Program to a petitioner . . . for a vaccine-related
injury . . . shall include the following:
(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 the 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 . . . .
§ 15(a)(1)(A).
The evidence in this case has established that CRPS is a “debilitating pain syndrome[]”
usually associated with a history of trauma. Pet. Ex. 12 at 1. It can be seen after even minor
trauma, like an intramuscular injection. Id. The syndrome may cause “significant morbidity and
loss of quality of life.” Pet. Ex. 16 at 1. “There is no correlation between the severity of the
initial injury and the ensuing painful syndrome.” Pet. Ex. 12 at 1.
In CRPS, pain may vary “in quality from a deep ache to a sharp stinging or burning
sensation.” Pet. Ex. 12 at 2. Pain may be exacerbated by cold, anxiety, and stress. Id.
Hypersensitivity may be present and increased with pain on exposure to cold. Id. A person with
the condition by also have “an increased response to painful stimuli.” Id.
Most CRPS patients experience a progression of the area affected. Pet. Ex. 14 at 6. The
literature suggests that there are three patterns of progression, or spread: contiguous,
independent, and mirror-image. Pet. Ex. 12 at 2-3. In his expert report, Dr. Kinsbourne opined
that petitioner had contiguous spread into her right arm and mirror-image spread in her left arm.
Pet. Ex. 8 at 5. Dr. Kinsbourne’s opinions in this regard are consistent with petitioner’s medical
records and her testimony as to the spread of her pain.
Those with CRPS may experience “associated symptoms of psychologic distress”
including “[a]nxiety, depression, fear, [and] anger.” Pet. Ex. 12 at 3. Prognosis is variable, but
3 Most of this section is taken from the undersigned’s Ruling Awarding Pain and Suffering
Damages. See Ruling Awarding Pain and Suffering Damages at 9-10, 13.
3

Case 1:14-vv-00422-UNJ Document 287 Filed 12/06/21 Page 4 of 6
in general is believed to be “poor when symptoms become chronic.” Id. at 6. In the
Schwartzman study of 656 patients who had CRPS for at least one year, none of the patients
experienced spontaneous recovery or remission. Pet. Ex. 14 at 1, 6. Moreover, Dr. Kinsbourne
stated that petitioner had tried many different treatments without success, and “[t]hus far her
severe neuropathic pain has proved to be intractable. Based on evidence that is currently
available, her outlook is bleak and one cannot foresee any end to her pain disorder.” Pet. Ex. 42
at 2.
With regard to severity, there is no question that petitioner has suffered a significant and
painful injury. There are repeated references in her medical records from a number of different
providers where she consistently compared her pain to being punched in the arm. At times, she
described the pain as hot and burning, or searing. The pain has limited her ability to perform all
activities of daily living, physical activity, socializing, hobbies, and leisure activities. Although
there are references in the medical records from 2012 stating that petitioner was participating in
some recreational activities, records from 2013 and later demonstrate that she is no longer able to
engage in those leisure activities. Dr. Hoelzer, a pain specialist, diagnosed petitioner with
“severe intractable neuropathic pain.” Pet. Ex. 3 at 38.
Since her injury in 2011, petitioner has self-reported her pain at ranges from 2/10 to 7/10.
She is hypersensitive to touch and vibration, and “exquisitely sensitive to cold temperatures.”
She has reported severe sleep disturbances. She has seen numerous doctors and undergone every
recommended treatment, except for the Mayo Clinic Program mentioned above. So far, none of
the treatments or therapies were successful.
In 2013, Dr. Bengtson opined that her pain was likely to continue, and unfortunately that
has been the case.
Further, the evidence establishes that petitioner was a long-time employee of Olmstead
County and that she was disabled due to her vaccine-related injury. In a letter dated November
13, 2019, petitioner’s physician, Dr. Keith Bengtson, recommended petitioner stop working. Pet.
Ex. 74. He opined that she was disabled. Id.
On March 11, 2021, the undersigned held a status conference. Ruling on Petitioner’s
Date of Disability and Scheduling Order dated Mar. 11, 2021 (ECF No. 247). With the parties’
permission, and after a review of the recently submitted evidence, specifically Exhibit 94, a letter
from Dr. Florek, the undersigned issued a ruling as to petitioner’s date of disability. Id. at 1.
The undersigned found that the date of petitioner’s disability was August 16, 2020. Id. (citing
Pet. Exs. 90-91, 94). The parties agreed that the evidence supported this date of disability, and
the life care plans were updated accordingly. Id.
III. DISCUSSION
In reaching her decision, the undersigned has previously reviewed all of the evidence that
has been filed by the parties, and specifically the most recent Life Care Plan, life care plan cost
projections analysis, the parties’ joint status report, petitioner’s memorandum on insurance, and
the case law cited by the parties. See Resp. Ex. N; Pet. Exs. 100-01; Joint Status Rept., filed Oct.
4

Case 1:14-vv-00422-UNJ Document 287 Filed 12/06/21 Page 5 of 6
28, 2021 (ECF No. 284); Pet. Memorandum on Insurance (“Pet. Memo.”), filed Oct. 28, 2021
(ECF No. 283); see also, e.g., Schwenk v. Sec’y of Health & Hum. Servs., 956 F.2d 1173 (Fed.
Cir. 1992). These filings provide the following evidence.
Petitioner’s life care planner, Elizabeth Kattman, stated, “Given [petitioner’s] age, 54,
and her diagnoses of progressive CRPS . . . , as well as other multiple health conditions, she
needs health insurance coverage.” Pet. Ex. 100 at 1. She also stated petitioner “had good health
insurance coverage through her employer, Olmsted County, with a lower deductible and out-of-
pocket maximum than she could presently purchase. Because of her vaccine injury, which
results in debilitating pain and is progressive, [petitioner] is no longer employed and is no longer
able to work.” Id.
Ms. Kattman found “[t]he Blue Cross/Blue Shield of Minnesota plan referenced in the
July 2021 life care plan offers better coverage for [petitioner] than the Medica Bronze EPO plan,
and it is offered by an existing well known insurance company.” Pet. Ex. 100 at 1. However,
[n]either plan provides [petitioner] the level of coverage she had when she was employed by
Olmsted County.” Id. Ms. Kattman opined “[i]t is not reasonable for [petitioner] to be
uninsured from 2025 to 2031. She will need to purchase health insurance privately which will be
more expensive and provide less coverage than what she would have had if she were able to
remain employed.” Id.
Dr. Mark McNulty, petitioner’s economist, also provided a letter and a copy of one of
petitioner’s pay stubs. Pet. Ex. 101. The pay stub verifies that petitioner’s employer, Olmstead
County, paid $9,424.00 per year, while petitioner paid $1,053.00 per year, for a total of
$10,478.00 per year for health insurance premiums. Id. at 2-3.
Specifically, the first question at issue is whether the undersigned should award the cost
of health insurance premiums until petitioner qualifies for Medicare at the age of 65 (from 2025
through 2031), or whether the undersigned should award the actual projected cost of medical
expenses, which are much lower than the cost of insurance.
The facts of this case are unique. Petitioner sustained a vaccine-related injury that
resulted in a progressive pain and other sequalae, and disability. She is unable to work, and she
therefore lost her health insurance that her employer paid for in large part. Because the
petitioner had insurance through her employer, and because she lost these projected
unreimburable expenses due to her vaccine-related injury, the undersigned finds the cost of
health insurance premiums to be reasonably necessary and a reasonable expense to which
petitioner is entitled. However, prior to her injury, petitioner paid approximately one-tenth of the
cost of her health insurance premiums. Therefore, the health insurance premiums will be
discounted by the amount petitioner paid toward her premiums.4 This award contemplates that
4 The parties confirmed that the lost wages amount agreed upon by the parties does not reflect a
reduction for fringe benefit payments, specifically for the amount that petitioner paid toward her
health insurance premiums. The parties have agreed on petitioner’s lost wage claim. This
Ruling contemplates that petitioner will pay her approximate one-tenth of the cost of her health
insurance premium from her lost wage award.
5

Case 1:14-vv-00422-UNJ Document 287 Filed 12/06/21 Page 6 of 6
petitioner will be awarded the cost of the Blue Cross/Blue Shield of Minnesota plan, which was
agreed upon by the life care planners as the most appropriate plan for petitioner given her
particular medical needs. This Ruling only pertains to the period between 2025 and 2031, as the
parties have agreed to cost of health insurance premium between 2022 and 2024. See Resp. Ex.
N at 2-3. Thus, the parties’ previous agreement as to health insurance for 2022 to 2024 is not
affected.
Next, with regard to Medigap, the undersigned finds petitioner is not entitled to Medigap.
Medigap is something her employer did not and would not have paid for had petitioner remained
employed. Thus, it is not an unreimbursed expense. Further, it is not cost effective given that
respondent has agreed to pay for petitioner’s out-of-pocket expenses (copays) for those
appointments that are medically reasonable and necessary, as reflected in the life care plan.
IV. NEXT STEPS
In a status report filed on November 9, 2021, petitioner confirmed she “has not received
treatment through Medicaid for her vaccine related injury and, therefore, there is no lien with
Minnesota Medicaid for Petitioner.” Pet. Status Rept., filed Nov. 9, 2021 (ECF No. 285).
After discussion, the parties agreed to work together to effectuate this Ruling into a
consolidated Life Care Plan, and respondent agreed to file a Proffer in 30 days, or by Friday,
December 10, 2021. In the event that the parties need additional time, they may seek an
extension of time.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
6

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_14-vv-00422-4
Date issued/filed: 2022-01-18
Pages: 10
Docket text: PUBLIC DECISION (Originally filed: 12/20/2021) regarding 292 DECISION of Special Master. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made.
--------------------------------------------------------------------------------
Case 1:14-vv-00422-UNJ Document 296 Filed 01/18/22 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: December 20, 2021
* * * * * * * * * * * * * * * * * * * * * * * *
TAMMY SCHETTL, * UNPUBLISHED
*
Petitioner, * No. 14-422V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Damages Award; Influenza (“Flu”) Vaccine;
AND HUMAN SERVICES, * Complex Regional Pain Syndrome
* (“CRPS”).
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * **
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.
Colleen Hartley, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On May 15, 2014, Tammy Schettl (“petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42
U.S.C. § 300aa-10 et seq. (2012).2 Petitioner alleged that she suffered from Complex Regional
Pain Syndrome (“CRPS”) caused by her October 4, 2011 influenza (“flu”) vaccination.
Amended (“Am.”) Petition at 1-2 (ECF No. 29). Respondent conceded that petitioner is entitled
to compensation, and a Ruling on Entitlement issued on August 7, 2018. Ruling on Entitlement
dated Aug. 7, 2018 (ECF No. 116).
1 Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is required to post it on the United States Court of Federal Claims’ website in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). This means the Decision will
be available to anyone with access to the Internet. In accordance with Vaccine Rule 18(b),
petitioner has 14 days to identify and move to redact medical or other information, the disclosure
of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this Decision to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
1

Case 1:14-vv-00422-UNJ Document 296 Filed 01/18/22 Page 2 of 10
A ruling on pain and suffering issued on January 22, 2019, awarding petitioner
$200,000.00 for actual pain and suffering and “$10,000.00 per year reduced to net present value,
for the rest of her life expectancy, for future pain and suffering.” Ruling dated Jan. 22, 2019, at
14 (ECF No. 145). The undersigned also issued a ruling regarding the set-off of petitioner’s
settlement with the vaccine administrator on March 6, 2019. Ruling dated Mar. 6, 2019 (ECF
No. 149). The undersigned found that the Vaccine Act is a secondary payer as to the insurance
policy with her employer; therefore, petitioner’s award of compensation was subject to a set-off
in the amount of $58,270.07. Id. at 7. The undersigned explained that if petitioner demonstrated
that she was not seeking expenses previously reimbursed by the vaccine administrator in the
amount of $6,520.07 in her present Vaccine Act case, then her Vaccine Program award would be
offset by only $51,750.00. Id. at 6. Thereafter, petitioner filed a sworn declaration on April 5,
2019, stating that she is claiming only those expenses accumulated following her settlement with
Olmsted County. Petitioner’s Exhibit (“Pet. Ex.”) 66. Thus, her award was to be offset by
$51,750.00.
Thereafter, the undersigned issued a decision awarding interim damages while the parties
continued to work together to resolve the remaining items of damages. Decision Awarding
Interim Damages dated Mar. 25, 2020 (ECF No. 207). Petitioner was awarded actual pain and
suffering ($200,000.00) and past unreimbursable medical expenses ($4,494.76), offset by the
amount found in the Ruling on Set-off ($51,750.00). Id. at 2. Thus, petitioner’s total interim
damages award was $152,744.76. Id.
The undersigned issued an order in September 2021 and a ruling in November 2021 on
the remaining damages items in dispute. Order dated Sept. 30, 2021 (ECF No. 280) (“Sept.
Order”); Ruling on Remaining Items of Damages issued Nov. 10, 2021 (ECF No. 286)
(“Damages Ruling”). Specifically, the undersigned made a determination on (1) health insurance
premiums from 2025 through 2031, (2) Medigap, (3) independent case management, (4) heavy
housekeeping, and (5) yard care/snow removal/handyman services.
The undersigned determined the cost of health insurance premiums from 2025 to 2031 to
be reasonably necessary and a reasonable expense to which she is entitled. Damages Ruling at 5.
Because petitioner paid approximately one-tenth of the cost of her health insurance premium
prior to her injury, the undersigned discounted her health insurance premium by this amount. Id.
Furthermore, the undersigned’s award contemplated that petitioner will be awarded the cost of
the Blue Cross/Blue Shield of Minnesota plan, which was agreed upon by the life care planners
as the most appropriate plan for petitioner given her particular medical needs. Id. at 5-6. Next,
the undersigned determined petitioner was not entitled to Medigap because it is something her
employer did not and would not have paid for had petitioner remained employed, and thus, it is
not an unreimbursed expense. Id. at 6. Additionally, the undersigned found it was not cost
effective given that respondent has agreed to pay for petitioner’s out-of-pocket expenses
(copays) for those appointments that are medically reasonable and necessary, as reflected in the
life care plan. Id.
Regarding independent case management, the undersigned found it reasonably necessary
every other year for petitioner’s life expectancy to determine whether there are new treatments
that have become available to treat petitioner’s condition. Sept. Order at 2. Given petitioner’s
2

Case 1:14-vv-00422-UNJ Document 296 Filed 01/18/22 Page 3 of 10
diagnosis and condition, the undersigned found housekeeping services twice per month
reasonable and necessary, and awarded this for petitioner’s life expectancy. Id. at 3. Lastly, the
undersigned found the evidence showed petitioner performed yard care, snow removal, and
handyman services prior to her injury and is no longer able to complete these tasks due to her
vaccine-related injury. Id. Thus, she found these expenses to be reasonable and necessary and
awarded them through petitioner’s life expectancy. Id.
On December 20, 2021, respondent filed a joint status report in response to the
undersigned’s ruling on remaining items of damages (“Joint Status Rept.”), attached hereto as
Appendix A. In lieu of a proffer, respondent submitted the Joint Status Report providing a
statement of all damages, including those that the parties have agreed upon as well as those
decided by the undersigned, in the manner that the parties agree upon. Joint Status Rept. at 1. In
the joint status report, respondent represented that petitioner does not object to the
representations made. Id. Based on the record as a whole, the undersigned finds that petitioner
is entitled to an award as stated in the Joint Status Report.
Pursuant to the terms stated in the attached Joint Status Report, the undersigned awards
petitioner:
(1) A lump sum payment of $659,261.00, representing compensation for life care
expenses (including case management, heavy housekeeping, and yard
care/snow removal/handyman service expenses awarded by the Special
Master) expected to be incurred during the first year after judgment
($21,220.00), lost earnings ($597,291.00), and projected pain and suffering
($40,750.00), in the form of a check payable to petitioner, Tammy Schettl.
(2) An amount sufficient to purchase an annuity contract described in Section
II.B. of the Joint Status Report.
Joint Status Rept. at 3-5.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court SHALL ENTER JUDGMENT herewith.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
3

Case 1:14-vv-00422-UNJ Document 296 Filed 01/18/22 Page 4 of 10
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
TAMMY SCHETTL, )
)
Petitioner, ) No. 14-422V
) Special Master Dorsey
v. ) ECF
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S JOINT STATUS REPORT IN RESPONSE TO RULING ON
REMAINING ITEMS OF DAMAGES (ECF NO. 286 )
In the Special Master’s November 10, 2021 Ruling on Remaining Items of Damages
(“Ruling”), the Special Master noted that “the parties agreed to work together to effectuate this
Ruling into a consolidated Life Care Plan, and respondent agreed to file a Proffer.”
In lieu of a proffer, respondent submits this Joint Status Report providing the Special
Master with a statement of all damages, including those that the parties have agreed upon as well
as those decided by the Special Master, in the manner that the parties agree contains the
information needed for the Special Master’s damages decision.
While preserving his right, pursuant to 42 U.S.C. § 300aa-12(3), to seek review of the
Special Master’s September 30, 2021 Order (ECF No. 280) and November 10, 2021 Ruling
(ECF No. 286), respondent submits the following joint status report regarding damages.
Petitioner’s counsel has reviewed this joint status report and does not object to the
representations made herein.

Case 1:14-vv-00422-UNJ Document 296 Filed 01/18/22 Page 5 of 10
I. Items of Compensation
A. Life Care Items
Respondent engaged life care planner Linda Curtis, RN, MS, CNLCP, CCM, CNLCP
and petitioner engaged Elizabeth Kattman, MS, Rehabilitation Counselor, to provide an
estimation of Tammy Schettl’s future vaccine-injury-related needs. Life care plans were filed in
this case. Agreed-upon life care items, as well as life care items delineated as awarded by the
Special Master, are illustrated by the chart entitled “Appendix A: Items of Compensation for
Tammy Schettl,” attached to this Joint Status Report as Tab A.1
B. Lost Earnings
The parties agree that based upon the evidence of record, Tammy Schettl has suffered a
loss of earnings under the Vaccine Act. 42 U.S.C. § 300aa-15(a)(3)(A). The parties further
agree that the amount to be awarded for Tammy Schettl’s lost earnings is $597,291.00.
C. Projected Pain and Suffering
The parties agreed that based upon the evidence of record, Tammy Schettl is entitled to
an award for pain and suffering under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(4). However,
the parties did not agree on an overall award or the allocation to actual versus projected pain and
suffering. On January 22, 2019, the Special Master awarded petitioner $200,000.00 for actual
1 The chart at Tab A illustrates the parties’ agreed-upon annual amounts for life care items and,
pursuant to the Special Master’s September 30, 2021 Order and November 10, 2021 Ruling,
includes the Special Master’s award of the following life care items: health insurance premiums
from compensation year 2025 through compensation year 2031; insurance maximum out of
pocket from compensation year 2022 through compensation year 2024; case management; heavy
housekeeping; and yard care/snow removal/handyman services from the date of judgment
through the remainder of petitioner’s life. 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.
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Case 1:14-vv-00422-UNJ Document 296 Filed 01/18/22 Page 6 of 10
pain and suffering and “$10,000.00 per year reduced to net present value, for the rest of her life
expectancy, for future pain and suffering.” Ruling dated Jan. 22, 2019, at 14 (ECF No. 145). On
March 25, 2020, the Special Master issued an Interim Damages Decision awarding $200,000.00
for actual pain and suffering less $51,750.00 for a set-off of petitioner’s settlement with the
vaccine administrator. ECF No. 207.2
Applying the Court’s guidance on the award for projected pain and suffering, the parties
agree that the amount to be awarded for Tammy Schettl’s projected pain and suffering is
$40,750.00. See 42 U.S.C. § 300aa-15(a)(4).
II. Form of the Award
The parties request that the compensation provided to petitioner be made through a
combination of a lump sum payment and future annuity payments as described below, and
request that the Special Master’s Decision on Damages and the Court’s judgment award the
following3:
A. A lump sum payment of $659,261.00, representing compensation for life care
expenses (including case management, heavy housekeeping, and yard care/snow
removal/handyman service expenses awarded by the Special Master) expected to be incurred
during the first year after judgment ($21,220.00), lost earnings ($597,291.00), and projected pain
and suffering ($40,750.00), in the form of a check payable to petitioner, Tammy Schettl.
2 Within the Interim Damages Decision, the Special Master also awarded petitioner $4,494.76
for past unreimbursable medical expenses. ECF No. 207. These expenses were agreed upon by
the parties. Id. Accordingly, the total amount of Interim Damages awarded was $152,744.76.
Id.
3 Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future medical
expenses and future pain and suffering.
3

Case 1:14-vv-00422-UNJ Document 296 Filed 01/18/22 Page 7 of 10
B. An amount sufficient to purchase an annuity contract,4 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 company5 from
which the annuity will be purchased.6 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,
Tammy Schettl, only so long as petitioner 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.
4 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or
more life insurance companies.
5 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.
6 Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case
consistent with the Privacy Act and the routine uses described in the National Vaccine Injury
Compensation Program System of Records, No. 09-15-0056.
4

Case 1:14-vv-00422-UNJ Document 296 Filed 01/18/22 Page 8 of 10
1. Growth Rate
The parties agree 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.
2. Life-contingent annuity
Petitioner will continue to receive the annuity payments from the Life Insurance
Company only so long as she, Tammy Schettl, 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 Tammy Schettl’s death.
3. Guardianship
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
III. Summary of Payments Following Judgment
A. Lump sum paid to petitioner, Tammy Schettl: $659,261.00
B. An amount sufficient to purchase the annuity contract described
above in section II. B.
5

Case 1:14-vv-00422-UNJ Document 296 Filed 01/18/22 Page 9 of 10
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
s/Colleen C. Hartley
COLLEEN C. HARTLEY
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-3644
Email: colleen.hartley@usdoj.gov
DATED: December 17, 2021
6

Case 1:14-vv-00422-UNJ Document 296 Filed 01/18/22 Page 10 of 10
Appendix A: Items of Compensation for Tammy Schettl Page 1 of 1
Lump Sum
Compensation Compensation Compensation Compensation
ITEMS OF COMPENSATION G.R. * M Year 1 Years 2-4 Years 5-11 Years 12-Life
2021 2022-2024 2025-2031 2032-Life
Insurance Premium 2022-2024 and after
10% Reduction 2025-2031 5% M 10,235.64 9,212.08
Insurance Maximum out of Pocket 5% 7,000.00
Medicare Part B Deductible 5% 203.00
Medicare Part D 5% M 332.40
Primary Care Physician 5% * 320.00 320.00 320.00 64.00
Pain Management & Rehabilitation 5% * 620.00 620.00 124.00
Chiropractor 4% * M 1,080.00 1,080.00 216.00
Massage Therapy 4% M 792.00 792.00 792.00 792.00
Pain Program at Mayo Clinic 4% *
Behavioral Therapy Group 4% *
Escitalopram, Phenytoin 5% * M 1,655.00 1,655.00
Melatonin 4% 64.00 64.00 64.00 64.00
Daily Assistance 4% M 10,192.00 21,840.00 21,840.00 29,120.00
Case Management 4% 1,200.00 600.00 600.00 600.00
Psychological Counseling 4% *
Heavy Housekeeping 4% M 2,112.00 2,112.00 2,112.00 2,112.00
Yard Care/Snow Removal/ Handyman 4% 3,000.00 3,000.00 3,000.00 3,000.00
Auto Car Starter 4% 160.00 22.86 22.86 22.86
Compression Sleeve 4% 25.00 25.00 25.00 25.00
Lost Earnings 597,291.00
Projected Pain and Suffering 40,750.00
Annual Totals 659,261.00 46,011.50 41,342.94 36,675.26
Note: Compensation Year 1 consists of the 12 month period following the date of judgment.
Compensation Year 2 consists of the 12 month period commencing on the first anniversary of the date of judgment.
As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for Yr 1 life care
expenses ($21,220.00), lost earnings ($597,291.00), and projected pain and suffering ($40,750.00): $659,261.00.
Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the date of judgment.
Annual amounts shall increase at the rates indicated above in column G.R., compounded annually from the date of judgment.
Items denoted with an asterisk (*) covered by health insurance and/or Medicare.
Items denoted with an "M" payable in twelve monthly installments totaling the annual amount indicated.