VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-00428
Package ID: USCOURTS-cofc-1_17-vv-00428
Petitioner: Gayle Dillenbeck
Filed: 2017-03-27
Decided: 2020-06-04
Vaccine: influenza
Vaccination date: 2015-10-30
Condition: Guillain-Barré syndrome
Outcome: compensated
Award amount USD: 221996

AI-assisted case summary:
On March 27, 2017, Gayle Dillenbeck filed a petition seeking compensation under the National Vaccine Injury Compensation Program, alleging that she suffered from Guillain-Barré syndrome (GBS) as a result of receiving an influenza vaccine on October 30, 2015. Respondent conceded entitlement early in the case, and a ruling on entitlement was issued in Petitioner's favor on October 23, 2017. The parties subsequently litigated the amount of damages. A damages hearing was held on February 19, 2019. On July 29, 2019, Special Master Brian H. Corcoran issued a decision awarding Petitioner $221,996.64. This award comprised $180,857.15 for pain and suffering, $38,824.90 for past lost wages, and $2,314.59 for unreimbursed expenses. The Special Master denied future lost wages. Petitioner and Respondent filed cross-motions for review. On January 22, 2020, Senior Judge Mary Ellen Coster Williams issued an Opinion and Remand Order. The Court affirmed the pain and suffering award but remanded the past and future lost wages determinations for re-evaluation in accordance with generally recognized actuarial principles and projections, noting that the Special Master's chosen end date for lost wages had no factual or legal basis. On May 5, 2020, the parties filed a stipulation to settle the past lost wages issue. Chief Special Master Corcoran adopted the stipulation as his decision. The final award, based on this stipulation, totaled $221,996.64, comprising $35,000.00 for past lost wages, $2,314.59 for unreimbursed costs, and $180,857.15 for pain and suffering. Petitioner was represented by Michael Milmoe and Leah V. Durant, and Respondent was represented by Debra F. Begley and Joseph H. Hunt. Special Master Brian H. Corcoran presided over the initial damages decision and the final stipulation, and Senior Judge Mary Ellen Coster Williams reviewed the decision.

Theory of causation field:
Petitioner Gayle Dillenbeck, age 61, received an influenza vaccine on October 30, 2015. She alleged that she developed Guillain-Barré syndrome (GBS) as a result of this vaccination. Respondent conceded that Petitioner's claim was compensable under the National Vaccine Injury Compensation Program, acknowledging that the GBS onset occurred within the Table's timeframe and that residual effects lasted more than six months, with no evidence of an unrelated cause. The Special Master initially awarded $221,996.64, including $180,857.15 for pain and suffering, $38,824.90 for past lost wages, and $2,314.59 for unreimbursed expenses, while denying future lost wages. Upon review, the Court affirmed the pain and suffering award but remanded the lost wages determination for re-evaluation based on actuarial principles. The parties subsequently stipulated to a final award of $221,996.64, with $35,000.00 allocated to past lost wages, $2,314.59 to unreimbursed costs, and $180,857.15 to pain and suffering. Petitioner was represented by Michael Milmoe and Leah V. Durant; Respondent by Debra F. Begley and Joseph H. Hunt. Special Master Brian H. Corcoran issued the initial damages decision and the final stipulation, and Senior Judge Mary Ellen Coster Williams reviewed the case.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-00428-0
Date issued/filed: 2019-08-29
Pages: 23
Docket text: PUBLIC DECISION (Originally filed: 7/29/2019) regarding 51 DECISION of Special Master Signed by Special Master Brian H. Corcoran. (mml) Service on parties made.
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Case 1:17-vv-00428-MCW Document 57 Filed 08/29/19 Page 1 of 23
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-428V
(to be published)
* * * * * * * * * * * * * * * * * * * * * * * * * Special Master Corcoran
GAYLE DILLENBECK, *
* Filed: July 29, 2019
Petitioner, *
* Decision; Influenza (“flu”) Vaccine;
v. * Guillain-Barré Syndrome (“GBS”);
* Future Lost Wages; Pain and
SECRETARY OF HEALTH AND * Suffering.
HUMAN SERVICES, *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Michael Milmoe, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Debra F. Begley, U.S. Dep’t of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On March 27, 2017, Gayle Dillenbeck filed a petition seeking compensation under the
National Vaccine Injury Compensation Program.2 ECF No. 1. Petitioner alleged that she suffered
from Guillain-Barré syndrome (“GBS”) as a result of receiving the influenza (“flu”) vaccine on
October 30, 2015. Id. Respondent acknowledged in his Rule 4(c) Report that the Petitioner’s claim
was compensable under the Act, and I issued a ruling on entitlement in Petitioner’s favor early in
the case’s life. Ruling, dated October 23, 2017 (ECF No. 15).
The parties subsequently attempted to determine the proper damages to be awarded to Ms.
Dillenbeck for her injuries, but could not reach an agreement on certain specific award
1 This Decision will be posted on the United States Court of Federal Claims website in accordance with the E-
Government Act of 2002, 44 U.S.C. § 3501 (2012). This means that the Decision will be available to anyone with
Internet access. As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published
Decision’s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party
has fourteen days within which to request redaction “of any information furnished by that party: (1) that is a trade
secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or
similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b).
Otherwise, the Decision will be available to the public in its present form. Id.
2 The National Vaccine Injury Compensation Program comprises Part 2 of the National Childhood Vaccine Injury Act
of 1986, Pub. L. No. 99-660, 100 Stat. 3755 (codified as amended at 42 U.S.C. § 300aa-10 through 34 (2012)).

Case 1:17-vv-00428-MCW Document 57 Filed 08/29/19 Page 2 of 23
components. The parties proposed to resolve their differences via hearing, first filing briefs laying
out their positions on the disputed award elements. See Prehearing Memorandum, dated Nov. 16,
2018 (ECF No. 31) (“P. Mem.”); Prehearing Memorandum, dated Feb. 4, 2019 (ECF No. 36)
(“Opp.”). The damages hearing was held on February 19, 2019, after which the parties were able
to narrow several of their disputed damages issues, with post-hearing briefs mainly addressing a
question raised by Petitioner’s lost future wages damages component. See Respondent’s Notice of
Additional Authority, dated March 18, 2019, filed as Ex. A (ECF No. 42); Respondent’s Post-
Hearing Brief, dated May 1, 2019 (ECF No. 48) (“R. Post-Hr.”); Petitioner’s Post-Hearing
Memorandum, dated June 3, 2019 (ECF No. 49) (“P. Post-Hr.”).
In total, Petitioner requests $338,694.23 in damages (see Joint Status Report, dated May 1,
2019 (ECF No. 47)), but based on my review of the record and the parties’ submissions, I find that
Petitioner is entitled only to a damages award of $221,996.64. The basis for this determination is
set forth below.
I. Abbreviated Factual History
Petitioner (who at the time held a position as a part-time veterinary technician (“vet tech”)3
at Bloomingdale Animal Hospital in Bloomingdale, Illinois) was sixty-one years old when she
received the flu and pneumococcal conjugate vaccines at her primary care provider’s office on
October 30, 2015. Ex. 2 at 20. She had a history of rheumatoid arthritis, asthma, bone/joint
problems, and occasional anxiety (with her preexisting arthritic pain being well-documented in the
medical history). Id. at 21; see also Ex. 12 at 23-25, 31-36.
Approximately three weeks later, while being discharged from the hospital following
gallbladder surgery, Ms. Dillenbeck complained of numbness in her feet, and she was noted to
have an ataxic gait. Ex. 3 at 167. She was assessed with a possible neuropathy and referred to
physical therapy (“PT”). Id. at 53, 170. Ms. Dillenbeck attended several sessions of PT over the
next week, but her symptoms worsened. Ex. 8 at 1; Ex. 12 at 21. By December 2015, she was
assessed with possible GBS (a diagnosis that was ultimately confirmed). Ex. 4 at 23-24.
During December 2015, Ms. Dillenbeck was admitted then discharged from the hospital
for treatment of her GBS, thereafter attending outpatient PT through the end of January 2016. Ex.
3 at 25. Due to her hospitalization (and subsequent recovery period), Ms. Dillenbeck was out of
work from November 15, 2015, through February 29, 2016. P. Mem. at 18.4 By the end of
3 At hearing, Ms. Dillenbeck described the duties and requirements of her job as a vet tech at Bloomingdale Animal
Hospital. Tr. at 51-52. They included assisting the attending veterinarian with filling medication; running/reporting
laboratory testing; monitoring animals during surgical procedures; restraining animals; and completing dental
cleanings. Id.
4 As discussed below, however, it appears that Petitioner’s onset of GBS symptoms occurred around November 22,
2015. Ex. 2 at 24. The earlier-in-time absences were attributable to Ms. Dillenbeck’s gallbladder surgery. See Ex. 7 at
6; Ex. 6 at 14, 26.
2

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February, she had shown significant improvement, although she continued to complain of some
paresthesia in her hands and feet, and also displayed reduced grip strength, some absent reflexes,
and a wide-based gait. Ex. 4 at 12, 14. She was released to return to work in February, albeit with
a fifteen-pound lifting restriction, returning to work at Bloomingdale on March 1, 2016. Tr. at 64;
Ex. 4 at 10-11; Ex. 16 at 10.
Ms. Dillenbeck again saw her primary care physician in April 2016, now reporting that she
no longer wished to be under the lifting restriction at work because she felt it was unnecessary
(given her recovery progress). Ex. 4 at 4. Her doctor accordingly wrote a letter to her employer
clearing her from all work restrictions. Id. at 7; Ex. 16 at 9. In the months thereafter, Petitioner
continued to see her primary care provider for follow-up treatment, reporting that despite her initial
improvement, she did not feel she had returned to a baseline level of health, with a number of
secondary symptoms continuing to plague her (e.g., paresthesia in the hands and feet, chest
sensitivity, and an unsteady gait). Ex. 4 at 4.
II. Procedural History and Disputed Damages Components
As noted, this case was filed in March 2017, and a little more than six months later
Respondent conceded entitlement. An inability to agree to the proper quantum of damages is thus
what has prevented full resolution of Petitioner’s claim. After several months of informal
discussions, the parties communicated to me that they had reached an impasse and requested a
schedule for a damages hearing. See Status Report, dated May 31, 2018 (ECF No. 24). That hearing
(set for February 2019) occurred, and both parties filed pre-hearing briefs in support of their
respective positions (ECF Nos. 31, 36).
At the hearing’s conclusion, the parties filed a status report indicating what areas of
damages they agreed upon and what areas remained in dispute. See ECF No. 47. The parties agree
that Ms. Dillenbeck is entitled to an award of $2,314.59 reflecting out-of-pocket/unreimbursed
expenses, and that she should receive some award for past lost wages, as well as a pain and
suffering award component.
There are three main areas of disagreement to be resolved. First, the parties dispute the
amount of past lost wages, with Respondent arguing for an award of $7,230.00, while Petitioner
requests $39,956.40. ECF No. 47 at 1. As discussed in greater detail below, some of this dispute
(as well as her future lost wages) turns on questions Respondent has raised regarding Petitioner’s
qualifications to be a vet tech in her home state of Illinois. Second, Petitioner requests $46,020.00
in future lost wages, while Respondent contests her right to any amount of future lost wages at all.
Third, the parties have not reached an accord on the proper pain and suffering award.
Petitioner requests an award at the statutory $250,000.00 cap, based on past pain and suffering in
the amount of $225,000, plus $5,000.00 per year going forward (assuming the Petitioner will live
another twenty-two years) – a total sum that would exceed the cap, thus causing its application.
3

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ECF No. 47 at 2. Respondent accedes to the general propriety of a pain and suffering award, but
is only amenable to the somewhat reduced sum of $135,000.00, and has not provided a breakdown
of past versus future subcomponents. Id. Finally, the parties disagree as to the propriety of a
Medicaid lien payment. Petitioner maintains that the sum of $403.24 is due and owing, while
Respondent, questioning whether the medical charges in question were incurred in treatment of
Petitioner’s GBS and sequelae, disputes the need for any lien at all.
III. Testimony at Damages Hearing
Four fact witnesses testified at hearing: the Petitioner herself; her son, Shawn Dillenbeck;
her daughter, Miranda Szydzik; and her son-in-law, Andrew Szydzik.
A. Gayle Dillenbeck
Ms. Dillenbeck’s testimony took up the majority of the damages hearing. See Tr. at 10-
122; see also Affidavit, dated May 16, 2017, filed as Ex. 11 (ECF No. 9-1). She described both
the nature of her GBS injury and ongoing sequelae as well as her employment history as a vet tech.
Ms. Dillenbeck began by discussing her overall health course leading up to October 2015.
Prior to receipt of the flu vaccine, Ms. Dillenbeck was generally healthy. Tr. at 13. She had no
serious health problems or complaints prior to that time period (apart from a rheumatoid arthritis
diagnosis). Id. at 13, 58, 78-79. Ms. Dillenbeck participated in a number of outdoor activities,
including hiking, walking with her dogs, and photography. Id. at 13-14, 15. She enjoyed
completing various household tasks and socializing with friends and neighbors. Id. at 15-16. Ms.
Dillenbeck also routinely cared for her grandchildren. Id. at 14-15.
Ms. Dillenbeck next recalled her receipt of the flu vaccine and subsequent hospitalization
for GBS. Roughly two weeks following vaccination, she began to experience adverse GBS-related
symptoms, and remained hospitalized for two weeks thereafter with a cascade of symptoms. Tr. at
30-32. She was unable to walk, and suffered from reduced strength and reflexes (including intense
nerve pain spanning the entire body). Id. at 20-21, 33-34, 39-40, 45. Ms. Dillenbeck could not
sleep and she spent many hours standing in order to relieve the pressure on her nerves. Id. at 38-
39. She also recalled spending time in PT due to weakness in her legs. Id. at 39. Her treatment
course included multiple rounds of IVIG therapy, and she routinely took Gabapentin for the
associated nerve pain. Id. at 22.
Following her release from the hospital, Ms. Dillenbeck returned home. Tr. at 40. She
required live-in care (provided by her daughter, son-in-law, and niece) for five to six months
thereafter. Id. at 40-41, 47. Ms. Dillenbeck used a walker to help steady her gait, but would “fall
quite often.” Id. at 41, 43-44, 80. Her family members helped care for her animals and completed
household tasks (including grocery shopping, driving, cooking, and laundry). Id. at 41-43. For the
first six months following her hospitalization, Ms. Dillenbeck was taking eight Gabapentin pills
4

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per day to treat her pain. Id. at 22. She also had trouble sleeping due to the persistent pain and
fatigue she was experiencing. Id. at 23, 26-27. She attended outpatient PT two to three time per
week. Id. at 45.5 Ms. Dillenbeck also recalled feeling increased stress given the longevity of her
illness. Id. at 48. As mentioned earlier, she worked as a vet tech and needed to return to her job by
early March 2016 (as she was the sole financial provider for her own needs). Id. at 48, 65.
Ms. Dillenbeck’s health has since improved but not returned to baseline. Tr. at 35. At
hearing, she estimated that she has regained roughly seventy-five to eighty percent of her pre-
illness strength. Id. She continues to experience a lack of sensation in her hands and feet, as well
as increased sensitivity to touch on her chest, abdomen, and back. Id. at 17, 35 (“I can’t reach into
my purse and try and feel something”), 36, 46. The weakness in her hands has resulted in a loss of
grip strength. Id. at 29-30.6 Ms. Dillenbeck also continues to experience a “deep pain” in her
abdomen, though she no longer takes Gabapentin. Id. at 17-19, 24.
In addition, Ms. Dillenbeck cannot complete the long walks she was accustomed to prior
to her onset of GBS, and often experiences generalized fatigue and tiredness. Tr. at 16-17, 27-28.
Her balance issues have persisted as well (due primarily to the resulting weakness on the right side
of her body), and she still suffers from reduced reflexes. Id. at 28-29, 35-36. Based on
conversations with her treating neurologist in December 2018, Ms. Dillenbeck maintained that she
had likely “plateau[ed]” in her overall recovery (as her symptoms had remained the same over the
past year). Id. at 36, 37 (“[w]hat he told me was pretty much that what I had wasn’t going to
improve”), 38. Her daily medication routine includes Prednisone (two tablets once per day) and
Plaquenil (for unrelated rheumatoid arthritis), and she attends yearly follow-ups with her
neurologist for monitoring of her GBS sequelae. Id. at 95, 115.
Ms. Dillenbeck also described her employment history relevant to the disputed damages
issues. She is currently employed at Army Trail Animal Hospital in Bartlett, Illinois, as a
receptionist. Tr. at 71, 96. She is paid $13.00 per hour and works full-time. Id. at 71, 73. Prior to
her onset of GBS, however, Ms. Dillenbeck held a different job: as cross-trained vet
tech/receptionist at Bloomingdale Animal Hospital, with slightly higher pay (a rate of $14.50 per
hour on a 35 to 38 hour per-week basis7). Id. at 50-52, 53, 60.
5 On cross examination, Respondent pointed out that Ms. Dillenbeck requested a discharge from PT at the end of
January 2016 (given the good progression in her mobility). Tr. at 81-82.
6 At hearing, Respondent made some reference to Petitioner’s hand/grip symptoms being related to a carpel tunnel
diagnosis. Tr. at 87-88; see Ex. 4 at 11. Ms. Dillenbeck recalled that a carpel tunnel diagnosis was possibly raised by
an intern during an appointment with her neurologist, Dr. Gupta. Tr. at 90-92. She did not, however, remember
discussing the diagnosis with Dr. Gupta or undergoing testing for it. Id. at 90-91, 109-10.
7 According to Ms. Dillenbeck’s testimony, Bloomindale annually increased her hourly rate (anywhere from .25 to
.50 cents per hour). Tr. at 75-76.
5

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At hearing, Ms. Dillenbeck testified that she had been employed at Bloomingdale for ten
years (prior to her termination in May 2016). Tr. at 50. Ms. Dillenbeck was on sick leave at
Bloomingdale beginning November 15, 2015, for her gallbladder operation, but had to greatly
extend that period of time after her GBS manifested. See P. Mem. at 2; Ex. 6 at 24-27.
Following her recovery, Ms. Dillenbeck returned to Bloomindale around the beginning of
March 2016, but was only hired back on as a receptionist part-time (though she expected to return
to her cross-trained position). Tr. at 60-61, 97, 118-19. Accordingly, she worked fewer hours than
she had before onset of her GBS. She was then terminated from her position because she was not
able to return to full-time status (and participate in the physical tasks required for the technical
components of the position). Id. at 49, 56, 58-60, 65, 112-13; see Ex. 16 at 11. In particular, as Ms.
Dillenbeck explained, she was no longer able to lift/restrain the animals properly (due to her
residual arm weakness), and she no longer had the stamina to keep up with the physical demands
of the position overall. Tr. at 56-67.
As Respondent pointed out on cross-examination, Petitioner was medically cleared to
return to work without restriction in late April 2016 – thus suggesting that in fact she had largely
recovered sufficient to carry out her duties as a vet tech. Tr. at 50, 65; see Ex. 16 at 9. Notes from
this medical visit do indicate that at this time, Ms. Dillenbeck had a restriction of not lifting more
than 15 pounds, but she informed her treating neurologist, Dr. Gupta, that she no longer needed
this restriction, as she could “lift her own dog at home without any difficulty (her dog weighs 70
pounds)”. Ex. 4 at 4; see Tr. at 50-51, 55, 92-93. On direct examination, Ms. Dillenbeck explained
that this was a reference to her pre-GBS strength. Tr. at 55. She later posited, however, that she
could perform such a lift today, but not safely. Id. at 92-93. Ms. Dillenbeck attempted to explain
the notation (and her express statement that she no longer required any lift restrictions) as the
product of her desire to return to work (and earn a steady income), maintaining that Dr. Gupta
essentially chose to assist her in this regard (despite her actual ongoing medical status). Id. at 115-
16.
There is a factual dispute as to the circumstances of Ms. Dillenbeck’s termination from
Bloomingdale on May 16, 2016. Via cross examination, Respondent sought to establish that Ms.
Dillenbeck was terminated from her position due to poor performance reviews. Tr. at 99-104.
Various employment records from her time at the clinic reference instances of unsatisfactory
performance (including lack of friendliness with staff and clients, untimely chart maintenance,
incorrect client charges, and failure to administer proper dog food) as early as 2013 (two years
prior to her receipt of the flu vaccine). Id. at 98-103; see, e.g., Ex. 16 at 6 (May 4, 2016 notation
of an incorrect client cash charge), 8 (May 16, 2016 warning notice referencing poor client
interaction and slow decline in pace), 23 (noting instances of late arrivals from 2006 to 2012), 89-
90 (2015 appraisal referencing a need for improvement regarding client interaction, chart
maintenance/ordering supplies, prioritizing, alertness, and administering proper food), 98 (June
28, 2013 concern for improper chart maintenance and voiding invoices), 118-19 (February 26,
6

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2013 notation of incorrect charges, slow pace, forgetfulness, and “trouble” making appointments),
120-21 (February 14, 2014 record noting a need for improvement in multitasking and completing
duties without being told).
The record of Petitioner’s May 2016 termination claims it was due to “unsatisfactory
performance” and “lack of hours.” Ex. 16 at 8 (May 16, 2016 termination). Indeed, it appears from
that record that a decline in performance was noted to have begun well before Ms. Dillenbeck’s
receipt of the flu vaccine and ensuing illness. See Ex. 16 at 8 (indicating a “slow decline over the
past year,” and hence before the October 2015 vaccination). In addition, many of the complaints
involved work not dependent on her physical ability to do the job (i.e., lack of friendliness,
charging clients incorrectly, and administering the wrong dog food). Employment evaluations
from 2013 and 2014 revealed similar complaints regarding interactions with co-workers, pace, and
customer service skills. See Ex. 16 at 118-19, 120-21. Petitioner signed these reviews, suggesting
her awareness of the problems. Id. at 119, 121.
Ms. Dillenbeck in response testified that she was unaware of these notes, and never
received a formal written warning detailing any instances of improper conduct. Tr. at 100, 103-04,
105, 110-12. In fact, Ms. Dillenbeck argued that these events “never happened,” and that her
supervisors at Bloomingdale in fact “made this information up.” Id. at 103. Her 2015 employee
appraisal form specifically states that Ms. Dillenbeck “struggle[d] to keep up w/ charts[,]” had
trouble “prioritiz[ing]” responsibilities, and “appears gruff & off putting” with customers and
clients. Id. at 89-90. Records pertaining to Petitioner’s termination noted various issues (including
“unable to keep up w/ pace when busy, slow decline over past year[,] [b]ad repor [sic] w/ clients
– have record some phone calls from clients of shortness, unapproachable, several mistakes”). Id.
at 8.8 As noted earlier, those same records indicate that she was let go due to “lack of hours” and
“unsatisfactory performance.” Id.
Following her termination, Ms. Dillenbeck was unemployed for three weeks before
obtaining work as a receptionist at two other veterinary clinics (Barrington Square Animal Hospital
and Knoll Animal Hospital), and as a pharmacy technician at Jewel-Osco Pharmacy, eventually
starting her present job at Army Trail in mid-July 2018. Tr. at 66-70, 71, 95-97.9 She maintained
that she was unable to find another vet tech position because she could no longer perform the
physical requirements the job demanded. Id. at 116-17. However, it is indisputable that Petitioner
is not licensed in Illinois as a vet tech, with some clinics (Knoll Animal Hospital, for example)
only willing to hire licensed individuals. Id. at 70, 116-18. Ms. Dillenbeck testified that she was
aware that many veterinary clinics require vet techs to possess certain certification requirements.
Id. at 117-18. Prior to her illness, she had considered going through the certification process. Id.
8 Although Ms. Dillenbeck signed her 2013 and 2014 performance appraisals, it does not appear that she signed the
2015 appraisal or the termination record. See Ex. 16 at 3-4, 8, 119, 121.
9 The record reflects that Ms. Dillenbeck’s last day at Knoll Animal Hospital was June 26, 2018. Ex. 15 at 15-16.
7

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at 117. However, she felt that is was an unnecessary expense (given that Bloomingdale allowed
her to work without it). Id. at 117-18.
At hearing, Ms. Dillenbeck explained the circumstances of her departures from her post-
Bloomingdale jobs. She testified that she was terminated from Barrington Square due to onset of
an illness unrelated to GBS. Tr. at 67-69. She also testified, however, that the hours (i.e, twelve
hours per day) were too strenuous. Id. at 67. Ms. Dillenbeck voluntarily left the pharmacy tech
position because she found the eight-hour days on her feet were similarly too demanding. Id. at
67-69, 105. She also voluntarily left her subsequent job at Knoll as well, but did so in order to take
advantage of the higher pay offered at Army Trail ($13.00 per hour for a receptionist position). Id.
at 69-70, 106. Overall, the loss of income she has experienced since her illness has affected her
ability to save and pay her bills. Id. at 72-74. In addition, Ms. Dillenbeck receives less paid vacation
time, and no insurance coverage. Id. at 107, 113-14.
B. Shawn Dillenbeck
Petitioner’s second witness was her son, Mr. Shawn Dillenbeck. Tr. at 121-134; see
Affidavit, dated February 15, 2019, filed as Ex. 21 (ECF No. 40-1). He testified telephonically at
hearing and submitted a witness statement describing Ms. Dillenbeck’s health course around the
time she developed GBS and her recovery thereafter.
Prior to her hospitalization in December 2015, Mr. Dillenbeck was outgoing, active, and
self-motivated. Tr. at 123. She enjoyed working with animals, taking long walks, and interacting
with her grandchildren. Id. 123-24, 129, 132. After her onset of GBS, however, Petitioner
experienced a cascade of adverse symptoms (including nerve pain, numbness/tingling,
hypersensitivity to touch, and difficulty walking), some of which she continues to experience to
this day. Id. at 123, 125-26, 128.
According to Mr. Dillenbeck, Petitioner’s recovery process following her hospitalization
for GBS was progressive, but slow. Tr. at 128. Ms. Dillenbeck required PT and in-home care
following her discharge (which included multiple visits from family members who assisted with
household tasks). Id. at 126-27. As Mr. Dillenbeck recalled, Petitioner still struggled with pain,
persistent sensitivity to touch, and walking difficulties in the months following discharge. Id. at
127-28. She was eventually able to return to work, but the lack of energy she experienced made it
difficult to complete the full work day. Id. at 128. As Mr. Dillenbeck explained, his mother’s illness
also affected her emotionally. Id. at 131-32. She experienced increased stress regarding her ability
to pay bills and provide for herself financially. Id. at 132.
At present, Mr. Dillenbeck testified, Petitioner is doing much better. Tr. at 130. Her
mobility has improved, but she continues to suffer from decreased grip strength and weakness. Id.
at 130-31. Mr. Dillenbeck (and other family members) continue to assist with various household
8

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tasks at times. Id. at 124, 130. Overall, Petitioner has not returned to her pre-illness baseline health,
and the residual fatigue she experiences affects her life daily. Id. at 123-24, 130-32.
C. Miranda Szydzik
Petitioner’s third witness was her daughter, Ms. Miranda Szydzik. She testified
telephonically and submitted a witness affidavit detailing Ms. Dillenbeck’s illness and recovery
thereafter. Tr. at 136-41; see Affidavit, dated February 15, 2019, filed as Ex. 22 (ECF No. 40-2).
Her testimony was consistent with that offered by both Petitioner and Mr. Dillenbeck. In addition,
Ms. Szydzik discussed in more detail the residual effects of Petitioner’s illness in the months
following her hospitalization.
Ms. Szydzik provided live-in care to Petitioner for roughly five-months following her
discharge from the hospital on December 8, 2015. Tr. at 137; Ex. 10 at 3. During that time period,
she assisted with various household tasks (including cooking, laundry, driving, and caring for
Petitioner’s animals). Tr. at 137-39. She recalled that Ms. Dillenbeck suffered from multiple
persistent symptoms over the course of her recovery (such as numbness in the arms/legs, sensitivity
to touch, trouble sleeping, and increased tiredness). Id. at 136-38. She also had mobility issues and
routinely experienced falls as a result. Id. at 137-38. Overall, Ms. Szydzik posited that Petitioner’s
course improved around the end of the five-month period following her illness. Id. at 138. In her
view, however, Petitioner remains less active and can no longer participate in the activities to the
same degree she was accustomed to prior to her onset of GBS (for example, taking long walks or
going to the dog park). Id. at 136, 139.
D. Andrew Szydzik
Petitioner’s final witness was her son-in-law, Mr. Andrew Szydzik. He testified
telephonically at hearing and submitted one witness statement on Ms. Dillenbeck’s behalf. Tr. at
142-148; see Affidavit, dated February 15, 2019, filed as Ex. 23 (ECF No. 40-3).
Mr. Szydzik also lived with Petitioner during the five-month period following her
hospitalization. Tr. at 142. He and his wife assisted Ms. Dillenbeck with various chores and basic
tasks during this time (including shopping for groceries and caring for her animals). Id. Mr.
Szydzik recalled that Ms. Dillenbeck routinely required assistance with walking, and fell multiple
times per day (even with the assistance of a walker). Id. at 142-43. To date, he continues to visit
Ms. Dillenbeck at least twice per month to offer assistance with anything she might need. Id. at
145.
Similar to the earlier witnesses, Mr. Szydzik described Petitioner as active, outgoing, and
independent prior to her illness. Tr. at 144-45. She was accustomed to living on her own, and
provided for her own well-being. Id. at 142, 144-45. Following her illness, however, Ms.
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Dillenbeck could no longer participate in her usual outdoor actives (i.e., going on long walks or to
the dog park). Id. at 145-46.
IV. Post-Hearing Briefing Regarding Lost Wages and Illinois Vet Tech Occupational
Requirements
As discussed earlier, Petitioner requests a total of $85,976.40 in lost wages related to her
illness (representing $39,956.40 in past lost wages and $46,020.00 in future lost wages).
Respondent posits that Petitioner is entitled to past lost wages in the amount of $7,230.00, and no
future lost wages.
The majority of Petitioner’s disputed claim for lost wages is premised on her allegation
that she was unable to return to work as a vet tech at Bloomingdale Animal Hospital after
recovering from her illness. Upon returning to Bloomingdale in March 2016 following her
discharge and recovery, Ms. Dillenbeck was initially only allowed to work as a receptionist – at
her former hourly rate but for fewer hours per week, before being terminated. Ms. Dillenbeck
admitted at hearing that she was not licensed to practice as a vet tech, however, and thus could not
locate other employment in the same position at different veterinary hospitals. Tr. at 116-19. But
she also maintained, independent of her certifications, that her GBS made it impossible to continue
to perform the physical tasks required of a vet tech.
Respondent filed a brief setting forth his position regarding Petitioner’s lost wages request
on May 1, 2019. See Post-Hearing Brief, dated May 1, 2019 (ECF No. 48) (“R. Post-Hr.”). In it,
Respondent argued that Petitioner’s request (pertaining to both past and future lost wages) “is
based on her misunderstanding of Illinois law . . . .” R. Post-Hr. at 2. As Respondent explained,
on February 16, 2016 – almost exactly around the time Ms. Dillenbeck was first cleared for return
to work – a new regulation took effect that in essence prohibited Ms. Dillenbeck from continuing
to work as a vet tech without a state license. Id. at 2 (citing 68 Ill. Admin. Code Tit. § 1505 (2019));
see Ex. A. The regulation does not, however, expressly prohibit a clinic from hiring an uncertified
vet tech, although it limits the duties an uncertified technician may perform unsupervised (i.e.,
trimming hooves, processing lab samples, obtaining streaks or cultures, and animal restraint), and
requires direct supervision by a veterinarian for any other required tasks (thus limiting the degree
to which a veterinary practice might utilize a vet tech for performance of acts it might otherwise
rely on her to do independently). R. Post-Hr. at 2-3. Given that Petitioner had been employed as
an uncertified vet tech prior to her illness and could no longer legally work as a vet tech under the
Illinois regulation, Respondent contended that she offered no persuasive evidence showing how
she could have continued to work in a similar position in the future (or following her termination).
Id. at 3.
Otherwise, Respondent posited that Ms. Dillenbeck did not establish that the residual
sequelae from her GBS prohibited her from working in any way (given the instances in record
where Petitioner’s treating neurologist, Dr. Gupta, expressly cleared her to work without
10

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restriction). R. Post-Hr. at 3-4. Respondent also argued that Petitioner appears to have been
terminated from her position at Bloomingdale Animal Hospital for poor work performance (as
evidenced by her employment records), not due to an inability to complete her regular work
responsibilities as a result of her GBS illness. Id. at 4-6.
Petitioner filed a responsive memorandum on June 3, 2019, contending that Respondent’s
reading of the Illinois regulation was “wholly incorrect.” See Memorandum, dated June 3, 2019
(ECF No. 49) (“P. Post-Hr.”) at 3.10 Based on her own reading, Petitioner argues that nothing in
the regulation prohibits a veterinary clinic in Illinois from hiring or retaining an unlicensed
technician. P. Post-Hr. at 3-6. Rather, the regulation simply requires uncertified technicians to be
more closely supervised and/or limits the types of tasks they can perform. Id. at 4-5.
Petitioner otherwise maintained that the multiple testifying fact witnesses corroborated her
assertions that her onset of GBS rendered her physically unable to perform the job of a technician,
and that her treating physician cleared her to return to work without restriction only because she
had no other means of supporting herself. P. Post-Hr. at 6-8. In so stating, Petitioner also
vehemently denied that she was terminated from her position at Bloomingdale due to poor
performance (or lack of certification). Id. at 6. She should therefore be compensated for both past
and future lost wages based on her pre-illness technician salary (given that working as a
receptionist has caused a permanent reduction in her yearly earnings). Id. at 8-9.11
10 Petitioner also filed a copy of the Illinois regulation. See Ex. 28 (ECF No. 50-1).
11 Petitioner also maintains that Respondent’s argument about state vet tech certification is untimely. P. Post-Hr. at 2-
3. The relevant Illinois statue (which was effective in 2016) could have been invoked by Respondent long before this
matter was set for hearing. Id. at 2. Given that Respondent only filed the statutory evidence a month after hearing (i.e.,
when the “record was effectively closed”), Petitioner maintains that any reliance on the regulation is prejudicial to
her, and she urges that it be deemed untimely. Id. at 2-3.
I agree with Petitioner that the vet tech issue could have been substantively addressed in greater detail before hearing.
However, I do not find that the dilatory filing of the Illinois statute is sufficiently prejudicial to Petitioner to strike it
entirely, and/or the argument it supports. First, Vaccine Act petitioners routinely file relevant documents late in the
judicial process, but their dilatoriness is overlooked given the Program’s emphasis on fairness (which is necessarily a
two-way street). Second, and more compellingly, the topic of Petitioner’s qualification to continue to act as a vet tech
is not only central to her lost wages claim but was extensively addressed at hearing. See, e.g., Tr. at 116-119
(discussing Petitioner’s awareness that she lacked the proper certifications to be a licensed Illinois vet tech). Finally,
at the close of hearing I asked the parties to narrow their disputed issues, but also invited them to brief their positions
on any remaining disputed damages components, and both sides succinctly did so. Id. at 163-64. Accordingly, the late
filing of this document was hardly prejudicial to Petitioner, who was well aware that the issue was germane to her
damages request.
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ANALYSIS
I. Past Lost Wages
The Vaccine Act provides for recovery of “actual and anticipated loss of earnings,”
where the injured party’s “earning capacity has been impaired by reason of such person’s
vaccine-related injury.” Section 15(a)(3)(A). As observed in Brown v. Sec’y of Health &
Human Servs., No. 01-60V, 2005 WL 2659072, at *6-8 (Fed. Cl. Spec. Mstr. Sept. 21, 2005),
calculation of lost earnings damages must be performed in a “cautious manner in accordance
with generally recognized actuarial principles and projections.” Petitioners bear the burden of
supporting a claim for lost earnings with preponderant evidence. Section 11(e).
With respect to the past lost wages component, Petitioner requests a total of $39,956.40,
which she calculates by looking at four general periods of time:
(a) Nov. 15, 2015 (the first time Petitioner presented post-vaccination for medical care –
albeit only in connection with symptoms resulting in her gallbladder surgery that preceded
onset of her GBS symptoms (Ex. 7 at 6)) to February 29, 2016, during which time she was
out of work entirely, receiving no sick pay from Bloomingdale;
(b) March 1, 2016,12 through her termination by Bloomingdale on May 16, 2016, during
which time she did not work full days (thus losing 21 hours per week over 11 weeks) but
otherwise appears to have received the same hourly rate of pay she received pre-
vaccination (see Tr. at 53; Ex. 27 at 12);
(c) May 17, 2016, through June 5, 2016, the three-week period in which she was
unemployed after her termination from Bloomingdale; and
(d) June 6, 2016, until the end of 2018 – the approximately 19-month period in which she
was either briefly unemployed again or worked the series of other jobs referenced above at
a salary of $10.00 per hour (thus Petitioner requests the $4.50 difference from her
Bloomingdale salary).13
P. Mem at 18-19.
Respondent, by contrast, argues that Petitioner is only entitled to past lost wages from the
date of onset of her GBS symptoms (November 22, 2016), through when she was released to return
12 Petitioner’s brief incorrectly lists this date as March 7, 2016, but the number of weeks Petitioner worked at the
reduced rate (eleven) is correct. See P. Mem. at 18.
13 Ms. Dillenbeck testified at hearing that she began working at Army Trail (as a receptionist earning $13.00 per hour)
in mid-July 2018. Tr. at 66-70, 71, 95-97. She is thus arguably not entitled to the $4.50 difference for the entirety of
2018 (as counsel proposes), as her salary went up to $13.00 per hour half way through the year. Petitioner’s briefings
did not account for this discrepancy (or explain the basis for such a request).
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to work without medical restrictions on April 29, 2016, ignoring her subsequent employment
history (and termination of employment at Bloomingdale). Opp. at 19. Accordingly, Respondent
only concedes that Petitioner should receive $7,230.00 – a reduced percentage of categories (a)
and (b) discussed above, and based upon Respondent’s calculating the sum from November 22nd
rather than November 15th.
Petitioner’s entitlement to past lost wages largely turns on whether she could have
reasonably expected to continue to work as a vet tech despite her injury – and if so, for how long.
Petitioner maintains that she lost her job at Bloomingdale as a direct result of her GBS sequelae.
She offered medical records (and fact witness testimony) which tended to show that she
experienced a lengthy recovery process and some persistent symtoms (including weakness/fatigue,
loss of grip strength, and lack of sensation in the hands) upon her return to work that made it
difficult to perform the vet tech tasks as she had in the past. Respondent countered with the
observation that Ms. Dillenbeck was cleared to return to work with no restrictions as of April 2016.
This clearance also indicated that Petitioner was able to restrain/lift heavier animals (15 pounds or
larger). But Petitioner’s explanation for the clearance (i.e., that she asked for the restriction to be
lifted so she could quickly return to work in order to receive needed income) was reasonable and
credible, though she did admit at hearing that she could perform restraints/lifts to this magnitude
if required to do so. Tr. at 55, 92-93.
Another factor impacting Ms. Dillenbeck’s continued work as a vet tech was her
qualification to hold this position, especially in light of changes in Illinois law. Respondent
proffered evidence (i.e., an Illinois state regulation) which at a minimum makes it more difficult
for an unlicensed technician to complete the relevant tasks associated with the position, subject to
some discretion by an individual veterinary employer. While Ms. Dillenbeck has objected to
consideration of aspects of this argument, she expressly acknowledged at hearing that she does not
possess the required licensing certifications to work in such a capacity, and admitted that many
clinics will no longer hire uncertified technicians due to the state’s changed regulation. Tr. at 117-
18.
Finally, there are the disputed circumstances of Ms. Dillenbeck’s termination from
Bloomingdale. Her employment file reveals that she was terminated due to “unsatisfactory
performance” and “lack of hours.” Ex. 16 at 8.14 Indeed, the employment records filed herein
establish that she had a history of performance complaints (which could have impacted her
employer’s decision to terminate her in 2016), including instances of reported unsatisfactory
performance (such as lack of friendliness with staff/clients, untimely chart maintenance, failure to
administer the proper animal food, and incorrectly charging client fees). Tr. at 98-103; Ex. 16 at
8, 98. Ms. Dillenbeck denied the accuracy of these purported deficiencies, maintaining instead that
14 As noted earlier, this record lists various examples of “unsatisfactory performance” (including an inability to keep
up with the pace when busy and poor client interaction), and describes Ms. Dillenbeck as unapproachable. Ex. 16 at
8. “Several mistakes” and a “slow decline over past year” were also listed, but not elaborated upon. Id.
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she was terminated from her position primarily due to her inability to perform the physical tasks
the job demanded (which were in turn attributable to her GBS sequelae). Once she was terminated
from Bloomingdale, she could not find comparable employment as a vet tech.
Respondent does not dispute that Petitioner should receive lost wages from the onset of her
GBS on November 22, 2015 (and I find this to be the appropriate date to begin the lost wages
calculation – not when she left work for her separate gallbladder proceeding) through her
termination from Bloomingdale (see R. Post-Hr. at 5), so the remaining question is whether she
should receive past lost wages, based on the differential between her Bloomingdale pay and what
she received from the other jobs she briefly held for the subsequent periods. I find that she should,
calculating the period from her mid-May 2016 termination to mid-July 2018 and thereafter, at
which time the record reflects she began her work at Army Trail at an hourly rate and work week
comparable to that which she maintained at Bloomingdale.
This determination turns on my finding that it is likely, based on the evidence presented,
that Ms. Dillenbeck could have maintained her vet tech job at Bloomingdale for some additional
period of time, but for the physical limitations brought on by GBS. Although there is evidence
from her employment record that she had some performance issues at Bloomingdale, and may
have risked termination there at some point, it appears overall she successfully maintained the job
until her injury. It is also evident that when she returned to work, Bloomingdale deemed her
incapable of performing those same tasks, and therefore delegated her to a receptionist position
(allowing the inference that Bloomingdale was concerned about her new physical limitations).
Although the documents pertaining to her release to work ultimately suggest she was not deemed
incapable of the physical tasks a vet tech would need to perform, I found credible Ms. Dillenbeck’s
explanation that the release was more the product of her need to return to work generally than an
accurate reflection on her true health at the time.
Whether Ms. Dillenbeck was terminated due to her vaccine injury, as she proposes, or her
own personnel failings at Bloomingdale, presents a closer question. Her employment records
indicate that she had received prior performance criticisms, but it is unclear from her 2016
termination whether those motivated the separation, or whether they were invoked as a pretext to
justify the decision (which was in fact attributable to her physical limitations). However, Ms.
Dillenbeck and her family were credible in establishing that she was far from baseline in the early
spring of 2016, and that her physical condition ultimately made it difficult if not impossible for
her to perform her duties at work. The record also does not establish that her lack of vet tech
certification was an equal consideration for Bloomingdale’s termination decision, and so the
change in the law around this time cannot be deemed the actual reason for the personnel act. With
all of the above in mind, I find that preponderant evidence just barely supports the conclusion that
Ms. Dillenbeck lost her Bloomingdale job due to her GBS sequelae.
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Because of the above, I will use Ms. Dillenbeck’s Bloomingdale salary of $14.50 per hour
as a basis to compare what she earned from the date of termination through today, awarding her
the difference when she earned less (or nothing, while she was unemployed). The Illinois law
change did not preclude her continued employment in this period at Bloomingdale, and (despite
the evidence of prior issues in her work performance) I do not find it likely that she would have
been terminated that year, or even thereafter for the next almost two years15, simply due to the
change (although, as discussed below, the certification changes do bear on the likelihood that Ms.
Dillenbeck could have continued to work as a vet tech anywhere other than Bloomingdale in the
future).
I will therefore award lost past wages in an amount close to what Petitioner seeks, but with
some adjustment, as follows:
(a), I will calculate the first component of lost wages from the date of Ms.
Dillenbeck’s first presentation of GBS symptoms, or November 22, 2015, to February 29,
2016 (as she returned to work on March 1, 2016). This amounts to a total of $7,612.50
(representing $14.50 x 35 hours per week for 15 weeks). See P. Mem. at 18;
(b) I will next award $3,349.50, representing the amount lost during her return to
work at Bloomingdale (at the same rate, but at reduced hours per week) through her
termination (from March 1, 2016, to May 16, 2016). See id; and
(c) for the remainder of 2016 through today’s date, I will award Ms. Dillenbeck (i)
$1,521.90 for the time she held no job (from May 16, 2016 through June 5, 2016), based
on the assumption that she could have earned $14.50 per hour at Bloomingdale consistent
with her pre-vaccination employment history; (ii) $11,790.00 for the period of time
between June 6, 2016, and February 15, 2017 (where Ms. Dillenbeck worked 18 hours per
week at rate of $10.00 per hour at Barrington Square and Jewel-Osco), with the difference
based on her previous salary of $14.50 per hour for 35 hours of work per week; (iii)
$1,015.00 for the period between February 15, 2017, until March 1, 2017 (two-week period
of no work at her $14.50 per-hour salary); (iv) $6,490.00 for the period between March 1,
2017, and December 2017 (or 44 weeks where Ms. Dillenbeck worked at Knoll for 36
15 I acknowledge that there is some inexactitude in determining that Ms. Dillenbeck could likely have continued to
work at Bloomingdale until today, rather than some earlier date. Arguably the vet tech certification changes, coupled
with the record evidence of performance problems, together mean that Petitioner could not reasonably have expected
to maintain her Bloomingdale position for such a long period of time, and therefore my calculation should end at an
earlier date (perhaps as early as the end of 2016). However, my overall weighing of the evidence – which takes into
account Ms. Dillenbeck’s continued GBS sequelae, the fact that she worked at Bloomingdale for many years before
her injury, and the Vaccine Program’s mandate of generosity – leads me to conclude that a fair past lost wages award
should be so calculated, and that to do so is not arbitrary. Certainly the sum awarded is not great in magnitude either
– especially since Ms. Dillenbeck was diligent in obtaining alternative employment (meaning that the lost wages
calculation is mostly the small dollar difference between what she earned before and what she was earning after).
15

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hours per week at $10.00 per hour, for a loss of $147.50 per week); (v) $4,130.00 from
January 1, 2018, through mid-July 2018 (at which time Ms. Dillenbeck left her job at Knoll
and transferred to Army Trail), which equates to 28 weeks of compensation16 (where she
worked 36 hours per week at $10.00 per hour, at a loss of $147.50 per week); and (vi)
$2,916.00 from July 16, 2018, through July 29, 2019 (at which time Ms. Dillenbeck worked
at Army Trail to the date of my decision, at a loss of $54.00 per week).
Based upon the above, I award Petitioner $38,824.90 in past lost wages.
II. Future Lost Wages
The largest disagreement between the parties (in the context of lost wages) focuses on the
issue of future lost wages. As discussed earlier, Petitioner maintains that she was terminated from
her position as a vet tech as a direct result of her illness and resulting sequelae. Prior to her illness,
she intended to work until age seventy. P. Mem. at 19. She is currently sixty-four. Id. Her future
lost wages claim is thus calculated by multiplying a $147.00 per week loss in salary (the difference
in the salary she received at Bloomingdale and her current receptionist salary at Army Trail) by
six years, for a total of $46,020.00. Id.17
Respondent argues that Petitioner is entitled to no lost wages, given that it appears that she
was capable of doing the physical work of a vet tech in light of her medical clearance, along with
the fact that she appears to have been terminated from Bloomingdale for performance problems
unrelated to her GBS sequelae. Respondent also urges the Court to consider the existence of Illinois
state law, which he posits would have prohibited Ms. Dillenbeck from continuing to work as a vet
tech anywhere.
Petitioner’s future lost wages argument is dependent on the finding that she could have
indefinitely maintained her position at Bloomingdale, or some place similar, as a vet tech but for
her vaccine injury. There are, however, substantial reasons to doubt that supposition. First, Ms.
Dillenbeck is not a certified vet tech, by her own admission, nor did she have plans to obtain this
certification. See Tr. at 116-19. The 2016 changes in Illinois law, moreover, suggest that it will be
significantly less likely in the future that a person like her could obtain vet tech employment –
something she also admitted. See id. at 116-19. These factors are independent of Ms. Dillenbeck’s
GBS-caused physical limitations, and render it unlikely she could have worked as a vet tech in
Illinois anywhere but Bloomingdale (with whom she had a fairly long employment relationship,
and whom may have therefore been more willing to overlook these certification obstacles). Ms.
16 Twenty-eight weeks allows for compensation until July 16, 2018.
17 Petitioner also submitted a vocational summary report by Roberta Hurley. See Ex. 14 at 1. Ms. Hurley’s report
emphasized that Ms. Dillenbeck likely could not continue working as a vet tech due to her persistent GBS sequelae.
Id.
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Dillenbeck could not have reasonably expected to be hired in an unlicensed capacity as a vet tech
in the present market, irrespective of her physical limitations.
Second, although I was able to determine that evidence relating to Petitioner’s employment
history barely preponderated in favor of a finding that she likely could have continued to work at
Bloomingdale through today as a vet tech (consistent with her pre-vaccination status), I find it
wholly speculative based on the same record to conclude that she could work as a vet tech at
Bloomingdale beyond the present time period. It is here that Petitioner’s documented record of
performance issues at Bloomingdale becomes important. For, although I found that the record was
close when it came to determining if her 2016 termination was attributable to performance
problems or her GBS-related physical limitations, that same employment record (which suggests
Petitioner’s performance issues long pre-dated vaccination) does not permit the conclusion that
she likely could have stayed there indefinitely. The combination of personnel issues and changes
in the law do not preponderate in her favor.
Third, Ms. Dillenbeck’s present employment circumstances reveal the degree to which she
has recovered from her admittedly-ongoing GBS sequelae sufficient to almost equal her pre-
vaccination status, further diminishing the need for a future lost wages award. She has succeeded
in obtaining other full-time work at Army Trail Animal Hospital as a receptionist making $13.00
per hour (which is almost as much as she earned before). Tr. at 71. Prior to that, Ms. Dillenbeck
held several jobs, some of which terminated for reasons she admitted had nothing to do with her
GBS-related symptoms. Tr. at 67-68, 69. Clearly her vaccine-caused symptoms are not preventing
her from holding any job at all (and as noted I cannot conclude that but for her GBS she would
likely still be a vet tech today). Although the sum she is now earning may be slightly less than
what she previously did, that fact does not mean she should receive the differential, absent a
preponderant showing that the differential is the result of the injury.
All in all, it is too speculative to assume Petitioner could have maintained her position as
a vet tech absent her ensuing injury – a linchpin prerequisite to awarding her lost future wages.
See, e.g., J.T. v. Sec’y of Health & Human Servs., No. 12-618V, 2015 WL 5954352, at *6, *10-12
(Fed. Cl. Spec. Mstr. Sept. 17, 2015) (refusing to award speculative future lost wages based on
petitioner’s claim his injury prevented him from starting new business venture), mot. for review
den’d, 125 Fed. Cl. 164 (2016). Therefore, I do not find any award of future lost wages to be
appropriate in this matter.
III. Pain and Suffering
The Vaccine Act caps total the amount of any pain and suffering damages component
award at $250,000.00. Section 15(a)(4). Many Vaccine Program cases discuss calculation of two
subcategories of pain and suffering awards – past (or “actual”) and projected – and then adding
them together, to come up with the total sum. See, e.g., Collado v. Secretary of Health & Human
Services, No. 17-0225V, 2018 WL 3433352, at *6-8 (Fed. Cl. Spec. Mstr. June 6, 2018). In prior
17

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discussions of appropriate pain and suffering awards, Court of Federal Claims judges and special
masters have considered three primary factors when determining an appropriate pain and suffering
award: (a) severity of the injury, (b) awareness of the injury, and (c) duration of the suffering. Id.
at *6.
A persuasive Court of Federal Claims decision issued within the last six years suggested
that special masters should calculate the total pain and suffering award appropriate before applying
the cap, rather than treating the cap as setting an absolute range of possible amounts and working
solely within it. Graves v. Sec’y of Health & Human Servs., 109 Fed. Cl. 579, 589-90 (2013).
Although Respondent has argued (in this case18 as well as others) that the latter approach is
preferable to that outlined by Graves (especially since it appears in the past to have been the
standard approach to calculation of pain and suffering), and reasonably maintains that the cap
should not be treated as a de facto basis for all pain and suffering awards, special masters appear
to have accepted Graves’s methodology since issuance of that decision. See, e.g., Bruegging v.
Sec’y of Health & Human Servs., No. 17-0261V, 2019 WL 2620957 (Fed. Cl. Spec. Mstr. May
13, 2019); Reed v. Sec’y of Health & Human Servs., No. 16-1670V, 2019 WL 1222925 (Fed. Cl.
Spec. Mstr. Feb. 1, 2019). I will apply it herein as well, although I do so mindful of the need to
consider the overall strength of Petitioner’s showing herein (and also of the obvious fact that pain
and suffering awards may in many cases appropriately fall below the cap).
Petitioner argues that her total pain and suffering exceeds the statutory cap. She requests
$225,000.00 for the past pain and suffering component, and then $5,000.00 per year (based on an
assumed additional life expectancy of 22 years) for future pain and suffering (or an additional
$110,000.00). P. Mem. at 17. Petitioner emphasizes that her counsel has settled conceded pain and
suffering damages awards in two prior cases involving GBS and the flu vaccine, and that both
awards exceeded $200,000.00. Id. at 16; see, e.g., Chatriand v. Sec’y of Health & Human Servs.,
No. 17-646V, 2018 WL 5262719 (Fed. Cl. Spec. Mstr. Aug. 20, 2018) (stipulating to $250,000.00
in pain and suffering damages); Wiggins v. Sec’y of Health & Human Servs., No. 17-871V, 2018
WL 4390970 (Fed. Cl. Spec. Mstr. May 10, 2018) (stipulating to a lump sum of $200,000.00 for
pain and suffering damages). Of course, because these do not reflect reasoned determinations
setting forth the logic for each award, their persuasive value is limited.
Respondent disagrees, allowing that some pain and suffering award is appropriate in this
case, but no more than $135,000.00 in total. ECF No. 47 at 2. He contrasts Petitioner’s overall
course with individuals found to have suffered GBS due to vaccination who required greater
hospitalization than that experienced by Petitioner, experienced a significantly worse outcome,
and/or where the injured party’s overall damages award (which included significantly higher
unreimbursed medical expenses and a Medicaid lien multiple times larger than that requested
herein) underscored the appropriateness of the highest pain and suffering award allowable under
18 See Opp. at 8-9.
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the Act. Opp. at 14-15; see, e.g., Dighero v. Sec. of Health & Human Servs., No. 15-22V, 2017
WL 5246562 (Fed. Cl. Spec. Mstr. Oct. 19, 2017) (petitioner received $250,000.00 for pain and
suffering in case featuring $188,991.75 for first-year, post-judgment expenses, annuity benefits,
and a Medicaid lien totaling $243,584.82).19 Ms. Dillenbeck’s ongoing sequelae, by contrast, are
relatively mild, permitting her to return to work not long after her hospitalization (and disputing
Petitioner’s argument that her job difficulties were solely attributable to those sequelae), and it is
also possible that some of the continuing pain she experiences is attributable to Petitioner’s pre-
vaccination medical history (namely, her pre-existing rheumatoid arthritis). Opp. at 15-16.
As I noted at hearing, my initial sense of the case was that a total award coming under the
cap – but closer to Petitioner’s figure than where Respondent stood – was likely the most just
result. Tr. at 154-56. I also noted that even if Petitioner’s distress relating to her inability to
continue working as a vet tech could not be factored into the lost wage calculation, it could be
taken into account in calculating pain and suffering. Id. at 161-62.
Having had the chance to review all filings plus the hearing transcript, my initial sense has
been confirmed, and therefore I shall award pain and suffering damages in the total sum of
$180,857.15.
First, I shall award past pain and suffering in the amount of $170,000.00. Given the facts
of this case, the bulk of any pain and suffering award Ms. Dillenbeck receives should reflect the
personal cost of having to suffer with GBS initially and her recovery in the months following, as
well as the role it may have played in negatively impacting her ongoing employment at
Bloomingdale in her preferred position. Although, as noted above, the change in state certification
for vet techs makes it speculative to guess to what degree Petitioner’s GBS sequelae caused her to
lose her job for purposes of calculating future lost wages, it is reasonable to include in my pain
and suffering calculation the suffering she experienced in her professional life, and the lost
opportunity to continue to perform vet tech duties from which she clearly took great pleasure. This
amount also greatly exceeds the sum Petitioner purports to have lost after being terminated by
Bloomingdale.
My pain and suffering calculation is consistent with other Program cases involving GBS
injuries that have resolved favorably (with mild-to-moderate sequelae). See, e.g., Johnson v. Sec’y
of Health & Human Servs., No. 16-135V, 2018 WL 5024012, at *7-9 (Fed. Cl. Spec. Mstr. July
20, 2018) (awarding $180,000.00 for pain and suffering in total for a resolved flu/GBS injury
resulting in sequelae involving persistent fatigue, numbness in legs/feet, and incontinence). Indeed,
flu/GBS injuries resulting in a petitioner’s death often settle for an amount well under that which
Petitioner in this case requests. See, e.g., Pfeifer v. Sec’y of Health & Human Servs., No. 17-1824V,
19 Respondent also denies the relevance of many other pain and suffering determinations referenced by Petitioner,
arguing that not only do they not involve GBS as the injury, but were either specific to the facts of the particular case
or not explained in the decision with the precision necessary to make them useful comparable herein. Opp. at 15-17.
19

Case 1:17-vv-00428-MCW Document 57 Filed 08/29/19 Page 20 of 23
2019 WL 2281757, at *1 (Fed. Cl. Spec. Mstr. Mar. 15, 2019) (settlement awarding $215,000.00
in pain and suffering for flu/GBS injury resulting in petitioner’s death); Gipson v. Sec’y of Health
& Human Servs., No. 17-1651V, 2019 WL 1451312, at *1 (Fed. Cl. Spec. Mstr. Feb. 25, 2019)
(settlement awarding $175,000.00 in pain and suffering for flu/GBS injury resulting in petitioner’s
death).
Second, I shall award a lesser sum of $500.00 per year for future pain and suffering –
which, accepting Petitioner’s calculation over a 22-year period, comes out to $11,000.00. Although
Ms. Dillenbeck has established that she continues to experience some ongoing sequelae that
interfere in her enjoyment of life, a request for $5,000.00 per year is excessive under the
circumstances. Lifetime/future pain and suffering awards in other contexts tend to avoid large
lump sums in favor of more conservative annual awards. For example, in two cases involving
unusually severe intussusceptions leading to expected lifetimes of abnormal bowel functions for
the injured child, the special master awarded only $1,000.00 per year for the claimants’ expected
future hardship. Neiman v. Sec’y of Health & Human Servs., No. 15-631V, 2016 WL 6459618, at
*7 (Fed. Cl. Spec. Mstr. Aug. 22, 2016); Brooks v. Sec’y of Health & Human Servs., No. 14-563V,
2016 WL 2656110, at *4 (Fed. Cl. Spec. Mstr. Feb. 26, 2016). A lesser sum is more reasonable
under the circumstances.
In keeping with Vaccine Program practice, I must next reduce this $11,000 figure to its net
present value. See Section 15(f)(4)(A) (requiring that future compensation awards be reduced to
their net present value). The Supreme Court in Jones & Laughlin Steel Corp. noted that the “net
discount method” should ordinarily be used in choosing a proper discount rate. Childers v. Sec’y
of Health & Human Servs., No. 96-194V, 1999 WL 218893, at *19 (Fed. Cl. Spec. Mstr. Mar. 26,
1999) (citing Jones, 462 U.S. 523, 538-50 (1983)). That same net discount method has been
commonly utilized in other special master’s decisions. See, e.g., Brown v. Sec’y of Health &
Human Servs., No. 00-0182V, 2005 WL 2659073, at *9-10 (Fed. Cl. Sept. 21, 2005). Net discount
rates utilized by other special masters have ranged from one percent to three percent, a somewhat
higher range band than that utilized by non-Program cases. See, e.g., Neiman v. Sec’y of Health &
Human Servs., No. 15-631V, 2016 WL 7741742, at *1 (Fed. Cl. Spec. Mstr. Oct. 31, 2016)
(utilizing a net discount rate of one percent for the first fifteen years of an award); J.T. v. Sec’y of
Health & Human Servs., No. 12-618V, 2015 WL 5954352, at *13 (Fed. Cl. Spec. Mstr. Sept. 17,
2015) (adopting the respondent’s suggested net discount rate of 1.5 to 1.6 percent); Childers, 1999
WL 218893, at *25 (employing a two percent net discount rate).
Neither party in the matter herein has proposed an appropriate net discount rate. As noted
above, recent Program decisions have adopted a multi-pronged approach in order to account for
the unusually low treasury interest rates of present day. See, e.g., Neiman, 2016 WL 7741742, at
*1 (utilizing a one percent rate for the first fifteen years of an award, followed by a two percent
rate for all remaining years). I find such reasoning persuasive, and will therefore utilize a one
percent net discount rate for the first fifteen years of this award, followed by a two percent net
20

Case 1:17-vv-00428-MCW Document 57 Filed 08/29/19 Page 21 of 23
discount rate for the remaining seven years. Applying this multi-pronged net discount rate,
Petitioner’s $11,000.00 award for future pain and suffering will be $10,857.15.20
Overall, I wish to stress the generosity of this pain and suffering award (especially in light
of the amount I am awarding for past lost wages). Having seen Ms. Dillenbeck at hearing, I am
convinced that she was negatively impacted by her GBS in many ways, and that she will have to
live with the results of it for the remainder of her life. Certainly it played some role in her
employment circumstances as well, at least with respect to her 2016 termination. However, she is
qualitatively in a better place in her life than the most severely-injured vaccine petitioners often
find themselves. The pain and suffering determination I have reached takes into account the
suffering she has experienced, and aims to give her some redress for it – but also is scaled in
comparison to the many substantially worse outcomes that have befallen many other Vaccine Act
claimants.
IV. Medicaid Lien
The Act does not allow petitioners to recover compensation “for any item or service to the
extent that payment has been made . . . under any Federal or state health benefits program . . . .”
Section 15(g). This means that where claimants have received prior treatment for their vaccine
injury under a Federal program like Medicaid, a lien arises against any Vaccine Program award
for the value of that medical service. See, e.g., Simmons v. Sec’y of Health & Human Servs., No.
11-216V, 2019 WL 2572256 (Fed. Cl. Spec. Mstr. May 28, 2019).
Here, Petitioner calculates a Medicaid lien exists against her award in the sum of $403.24.
Ex. 18 at 3. However, as Respondent observes, it appears that the treatment in question was
directed not at Ms. Dillenbeck’s GBS but at her preexisting arthritic condition. The medical
records that coincide with the lien amounts charged on May 25, 2017, January 7, 2017, and
December 6, 2017, correspond with visits to Petitioner’s rheumatologist for treatment related to
her arthritis. See Ex. 12 at 5, 7, 9.21 While Petitioner did mention her GBS illness during these
visits, there is no evidence that the treatment she received was related to that illness. See id. at 5,
7, 9. Petitioner maintained at hearing that these rheumatology visits included some discussion of
her GBS sequelae (i.e., in the context of making sure her arthritis medication was not interfering
with her GBS recovery). See Tr. at 74-75. While it may be the case that the effects of that treatment
on Petitioner’s GBS may have been considered, the submitted proof does not establish that this
medical treatment was oriented toward her vaccine injury. As a result, I cannot permit the lien to
be applied in this case to the damages award.
20 This figure was calculated using the online present value calculator available at https://financial-
calculators.com/present-value-calculator (compounding annually).
21 Petitioner did not file medical visit records corresponding to the treatment charged on November 2 and 16, 2016, or
August 28, 2017.
21

Case 1:17-vv-00428-MCW Document 57 Filed 08/29/19 Page 22 of 23
CONCLUSION
In light of the above, I calculate damages as follows:
Damages category Requested Awarded Difference
Unreimbursed Out-of-Pocket $2,314.59 $2,314.59 N/A
Expenses
Past Lost Wages $39,956.40 $38,824.90 $1,131.50
Future Lost Wages $46,020.00 $0.00 $46,020.00
Pain and Suffering $250,000 $180,857.15 $69,142.85
(representing
$225,000.00,
plus $5,000.00
per year for 22
years, reduced
by cap)
Medicaid Lien $403.24 $0.00 $403.24
Total $338,694.23 $221,996.64 $116,697.59
As a result, I approve a Vaccine award of $221,996.64, which represents compensation
for past unreimbursed expenses ($2,314.59), past lost wages ($38,824.90), and pain and
suffering ($180,857.15) in the form of a check payable to Petitioner.
This amount represents compensation for all items of damages that would be available
under Section 15(a).
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk SHALL ENTER JUDGMENT in accordance with this decision.22
IT IS SO ORDERED.
22 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice renouncing their
right to seek review.
22

Case 1:17-vv-00428-MCW Document 57 Filed 08/29/19 Page 23 of 23
/s/ Brian H. Corcoran
Brian H. Corcoran
Special Master
23

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_17-vv-00428-1
Date issued/filed: 2020-02-06
Pages: 12
Docket text: PUBLIC DECISION (originally filed 1/22/2020) regarding 64 Judge Vaccine Reported Opinion. Signed by Senior Judge Mary Ellen Coster Williams. (ag) Service on parties made.
--------------------------------------------------------------------------------
Case 1:17-vv-00428-MCW Document 66 Filed 02/06/20 Page 1 of 12
In the United States Court of Federal Claims
No. 17-428V
(Filed: February 6, 2020)1
* * * * * * * * * * * * * * * * * * * * * * * *
*
GAYLE DILLENBECK, *
* National Childhood Vaccine Injury
Petitioner, * Act, 42 U.S.C. §§ 300aa-1 et seq.;
* Damages for Lost Wages and Pain
v. * and Suffering; Loss of Earnings To
* Be Determined In Accordance With
SECRETARY OF HEALTH AND * Generally Recognized Actuarial
HUMAN SERVICES, * Principles and Projections; 42
* U.S.C. § 300aa-15(a)(3)(A);
Respondent. * Remand.
*
* * * * * * * * * * * * * * * * * * * * * * * *
Leah V. Durant, Law Offices of Leah V. Durant, PLLC, 1717 K Street NW, Suite 900,
Washington, D.C. 20006, for Petitioner.
Joseph H. Hunt, C. Salvatore D’Alessio, Catharine E. Reeves, Alexis B. Babcock, Julia M.
Collison, United States Department of Justice, Civil Division, Torts Branch, P.O. Box 146,
Benjamin Franklin Station, Washington, D.C. 20044, for Respondent.
_________________________________________________________
OPINION AND REMAND ORDER
_________________________________________________________
WILLIAMS, Senior Judge.
In the underlying action before the Special Master, Petitioner claimed that she developed
Guillain-Barré syndrome (“GBS”) as a result of receiving an influenza (“flu”) vaccination, and
sought compensation under the National Vaccine Injury Compensation Program. Respondent
conceded that Petitioner satisfied the Table criteria for a flu/GBS injury, and the Special Master
ruled that Petitioner was entitled to compensation. After a hearing, the Special Master issued a
damages decision awarding Petitioner $180,857.15 in pain and suffering, $38,824.90 in past lost
wages, and $2,314.59 in unreimbursed out-of-pocket expenses. The Special Master did not award
1 Pursuant to Vaccine Rule 18 of the Rules of the United States Court of Federal Claims, the
Court issued its Opinion under seal to provide the parties an opportunity to submit redactions. The
parties did not propose any redactions. Accordingly, the Court publishes this Opinion.

Case 1:17-vv-00428-MCW Document 66 Filed 02/06/20 Page 2 of 12
Petitioner future lost wages. Petitioner and Respondent timely filed cross-motions for review of
the Special Master’s decision.
Petitioner argues that the Special Master should have awarded Petitioner future lost wages
as he granted past lost wages, and that he undervalued Petitioner’s award for pain and suffering.
Respondent argues that the award of past lost wages through the date of the Special Master’s July
29, 2019 damages decision was arbitrary, as that date had no legal significance and was unrelated
to Petitioner’s health or employment. Respondent also argues that the Special Master erred by
failing to offset Petitioner’s past lost wages award for taxes and state unemployment payments.
The Court finds that the Special Master’s pain and suffering award was not an abuse of
discretion, and affirms that award. However, in determining lost wages, the Special Master did
not articulate a rational basis for his choice of July 29, 2019, as the hypothetical date Petitioner’s
employment would have ended absent her vaccine injury. As such, the Special Master’s lost wages
determinations are remanded for reevaluation “in accordance with generally recognized actuarial
principles and projections,” as required by the Vaccine Act, 42 U.S.C. § 300aa-15(a)(3)(A) and
further development of the record.
Factual Background2
On October 30, 2015, Petitioner received the flu and pneumococcal conjugate vaccines at
her primary care provider’s office. ECF No. 51 at 2. At the time of the vaccinations, Petitioner
was 61 years old and had a history of rheumatoid arthritis, asthma, bone/joint problems, and
anxiety. Id. Petitioner was employed as a receptionist and uncertified veterinary technician (“vet
tech”) at Bloomingdale Animal Hospital (“Bloomingdale”) in Bloomingdale, Illinois, and had held
this job for ten years.3 Id. Approximately three weeks after the vaccinations, following a
gallbladder surgery, Petitioner reported numbness in her feet and was assessed to have an ataxic
gait. Id. Following a worsening of her symptoms, she was diagnosed with GBS in early December
2015. Id. After hospitalization for treatment, Petitioner was released on December 13, 2015, and
continued outpatient physical therapy until the end of January 2016. ECF No. 51 at 2; ECF No.
53 at 2.
Petitioner was able to walk independently by January 20, 2016, and had improved
significantly as of late February 2016. ECF No. 53 at 2; ECF No. 51 at 2-3. However, Petitioner
still reported paresthesia in her hands and feet, reduced grip strength, absent reflexes, and a “wide-
based gait.” ECF No. 51 at 3. Petitioner was cleared to return to work, subject to a 15-pound
lifting restriction, on February 17, 2016, and she returned to work at Bloomingdale on March 1,
2016. ECF 51 at 3; ECF No. 53 at 3.
Altogether, due to her gallbladder surgery and subsequent GBS treatment, Petitioner was
out of work from November 15, 2015, through February 29, 2016, and the Special Master found
2 This background is derived from the Special Master’s damages decision, and the parties’
motions papers.
3 Although the Special Master found that Petitioner was a part-time employee at
Bloomingdale prior to her vaccination, Petitioner contends that she was working 35-38 hours per
week, which “was considered full-time employment with Bloomingdale.” ECF No. 56 at 3.
2

Case 1:17-vv-00428-MCW Document 66 Filed 02/06/20 Page 3 of 12
that the date of onset of Petitioner’s GBS symptoms was November 22, 2015. ECF No. 51 at 2,
n.4; ECF No. 51 at 12. On February 16, 2016, while Petitioner was recovering at home, a new
Illinois state regulation came into effect which imposed increased restrictions and supervision
requirements on uncertified vet techs. ECF No. 51 at 10; ECF No. 53 at 2-3. The Special Master
found that the Illinois regulation:
in essence prohibited [Petitioner] from continuing to work as a vet tech without a
state license. The regulation does not, however, expressly prohibit a clinic from
hiring an uncertified vet tech, although it limits the duties an uncertified technician
may perform unsupervised . . . and requires direct supervision by a veterinarian for
any other required task (thus limiting the degree to which a veterinary practice
might utilize a vet tech for performance of acts it might otherwise rely on her to do
independently).
ECF No. 51 at 10. When Petitioner returned to work on March 1, 2016, Bloomingdale assigned
her work as a receptionist, not a vet tech, at her pre-vaccination 2015 wage of $14.50/hour. ECF
No. 53 at 3. In April 2016, Petitioner visited her neurologist, Dr. Vipan Gupta, and asked him to
remove the 15-pound lifting restriction, as she was able to lift her 70-pound dog at home without
issue. Id. at 3. On April 29, 2016, Dr. Gupta sent a letter informing Bloomingdale that Petitioner
was “cleared to work without restrictions” as of that date. Ex. 16 at 9. A little over two weeks
later and six months after her vaccination, Bloomingdale terminated Petitioner’s employment on
May 16, 2016, citing her “unsatisfactory performance,” “slow decline over [the] past year,” and a
“lack of hours.” Ex. 16 at 8.
Petitioner’s employment evaluations for the years 2012 and 2013, which pre-date her 2015
vaccination, noted issues with her customer service skills and efficiency. Ex. 16 at 118-21.
Petitioner’s 2013 evaluation stated that that her supervisor had met with Petitioner “a few times
over the past year about customer [service] skills” and while Petitioner was “very receptive, . . .
this area still need[s] continued improvement.” Id. at 120. These evaluations never threatened
any adverse employment consequences.
Three weeks following her termination from Bloomingdale, Petitioner found alternative
employment, working as a receptionist at two other veterinary clinics and as a pharmacy
technician. ECF No. 51 at 7. Petitioner presently works full-time as a receptionist at Army Trail
Animal Hospital in Bartlett, Illinois for $13 per hour. Id. at 5. Though Petitioner’s health has
improved, it has not returned to baseline, with Petitioner estimating that she has regained 75 to 80
percent of her pre-illness strength. Id. Petitioner continues to experience GBS sequelae, including
a lack of sensation in her hands and feet and loss of grip strength. Id.
Procedural History
On March 27, 2017, Petitioner filed a petition seeking compensation under the National
Vaccine Injury Compensation Program, (“Vaccine Program”) 42 U.S.C. § 300aa–10, et seq.,
alleging that her GBS was the result of her October 30, 2015 flu vaccine. ECF No. 1. Several
months later, Respondent conceded that Petitioner satisfied the criteria in the Vaccine Injury Table
and the “Qualifications and Aids to Interpretation for a Flu/GBS Table Injury,” and the Special
Master ruled that Petitioner was entitled to compensation on October 23, 2017. ECF Nos. 14, 15.
The Special Master held a hearing on damages on February 19, 2019. ECF 51 at 2.
3

Case 1:17-vv-00428-MCW Document 66 Filed 02/06/20 Page 4 of 12
On July 29, 2019, the Special Master issued his damages opinion awarding Petitioner a
total of $221,996.64, including $180,857.15 in pain and suffering, $38,824.90 in past lost wages
and $2,314.59 in unreimbursed out-of-pocket expenses. Id. at 22. The Special Master did not
award Petitioner future lost wages based on his finding that, absent her vaccine injury,
Bloomingdale would have continued to employ her up until the July 29, 2019 date of his damages
decision, but no further. Id. at 16-17. On August 28, 2019, Petitioner and Respondent timely filed
cross-motions for review of the Special Master’s damages award with this Court. ECF Nos. 53,
55.
Discussion
Jurisdiction and Standard of Review
Congress created the Vaccine Program as a “Federal ‘no-fault’ compensation program
under which awards can be made to vaccine-injured persons quickly, easily, and with certainty
and generosity.” H.R.Rep. No. 99-908, at 3 (1986). To that end, “Congress assigned to a group
of specialists, the Special Masters within the Court of Federal Claims, the unenviable job of sorting
through these painful cases and, based on their accumulated expertise in the field, judging the
merits of the individual claims.” Hodges v. Sec’y of Dep't of Health & Human Servs., 9 F.3d 958,
961 (Fed. Cir. 1993).
In Vaccine Act cases, the Court of Federal Claims has jurisdiction to undertake a review
of the record of the proceedings and may:
(A) uphold the findings of fact and conclusions of law and sustain the special
master’s decision, (B) set aside any of the findings of fact or conclusions of law of
the special master found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law and issue its own findings of fact and
conclusions of law, or (C) remand the petition to the special master for further
action in accordance with the court’s direction.
42 U.S.C. § 300aa-12(e)(2)(A)-(C) (2012); Doe 93 v. Sec’y of Health & Human Servs., 98 Fed.
Cl. 553, 564-65 (2011).
“Findings of fact of the special master are reviewed under the arbitrary and capricious
standard, conclusions of law are reviewed under the not in accordance with law standard, and
discretionary rulings are reviewed under the abuse of discretion standard.” Broekelschen v. Sec’y
of Health & Human Servs., 89 Fed. Cl. 336, 343 (2009), aff’d, 618 F.3d 1339 (Fed. Cir. 2010)
(internal citations and quotation marks omitted).
The Federal Circuit has held
An abuse of discretion occurs when (1) the court's decision is clearly unreasonable,
arbitrary or fanciful (2) the decision is based on an erroneous conclusion of law (3)
the court's findings are clearly erroneous; or (4) the record contains no evidence on
which the [] court rationally could have based its decision.
Heat & Control, Inc. v. Hester Indus., Inc., 785 F.2d 1017, 1022 (Fed. Cir. 1986) (internal citations
and quotation marks omitted).
4

Case 1:17-vv-00428-MCW Document 66 Filed 02/06/20 Page 5 of 12
In Snyder ex rel. Snyder v. Sec’y of Health & Human Servs., 88 Fed. Cl. 706 (2009), Chief
Judge Sweeney encapsulated the interplay between the Special Masters’ Congressionally-
sanctioned discretion over evidentiary proceedings and the responsibility of reviewing courts,
stating:
In sum, when considering the provisions and legislative history of the Vaccine Act,
the language of the Vaccine Rules, and the case law, one factor that has remained
constant in the Vaccine Program is the necessary and important role of special
masters in conducting proceedings and rendering decisions in Vaccine Act cases.
The special masters have great leeway in how they conduct proceedings, including
what evidence to consider and how to weigh that evidence, and their credibility
determinations and fact-intensive conclusions are afforded great deference.
However, this is not to suggest that the special masters are infallible and that their
final decisions are sacrosanct. To be sure, the Court of Federal Claims on review,
and the Federal Circuit on appeal, do not merely rubber stamp special master final
decisions. Decisions from both courts demonstrate a willingness to reverse the
decision of a special master when the special master has failed to adequately
develop the record, failed to consider facts critical to the case, failed to give
adequate consideration to a viable medical theory, or otherwise misapplied the law.
Id. at 718.
The Special Master’s Award of $180,857.15 in Pain and Suffering Damages Was Not an
Abuse of Discretion
Under the Vaccine Act, a Special Master may award an amount “not to exceed $250,000”
for “actual and projected pain and suffering and emotional distress from [a] vaccine-related
injury.” 42 U.S.C. § 300aa-15(a)(4).
Here, Petitioner claims that the Special Master’s grant of $180,857.15 for Petitioner’s past
pain and suffering was “too low given what petitioner has been through, the legislative history of
the [Vaccine] Act and comparable awards in settled cases.” ECF No. 51 at 22; ECF No. 56 at 14.
Petitioner cites her “physical pain,” the “loss of her profession,” and her inability to “take long
walks” and to care for her dogs, among other factors, as supporting a higher pain and suffering
award. ECF No. 56 at 15-16. With respect to the loss of her status as a vet tech, Petitioner testified
that she does not intend to become certified to perform this work, despite the change in Illinois
law. Hr’g. Tr. 116-19. Petitioner references “numerous flu-GBS cases,” litigated by Petitioner’s
counsel’s law firm, which settled for “between $200,000 and $250,000 in pain and suffering, much
higher values than awarded here.” ECF No. 56 at 16. However, the Special Master found that,
“because these [settlements] do not reflect reasoned determinations setting forth the logic for [the
amounts of] each award, their persuasive value is limited.” ECF No. 51 at 18.
Contrary to Petitioner’s assertions, the Special Master properly took into account a full
range of considerations in his pain and suffering determination, including Petitioner’s health and
ongoing sequelae, his personal observation of Petitioner’s condition, Petitioner’s inability to
engage in certain activities, as well as the amount of compensation awarded in three comparable
5

Case 1:17-vv-00428-MCW Document 66 Filed 02/06/20 Page 6 of 12
cases.4 The Special Master noted that Petitioner herself testified that she had regained “roughly
seventy-five to eighty percent of her pre-illness strength.” Id. at 5, 19. While other petitioners
experienced “significantly worse outcome[s]” from flu/GBS injuries, Petitioner here was able to
“return to work not long after her hospitalization,” and currently works full-time. Id. at 18-19.
The Special Master appreciated “the personal cost of [Petitioner] having to suffer with GBS
initially and her recovery in the months following, as well as the role it may have played in
negatively impacting her ongoing employment at Bloomingdale in her preferred position.” ECF
No. 51 at 19. He stated “[h]aving seen [Petitioner] at hearing, I am convinced that she was
negatively impacted by her GBS in many ways, and that she will have to live with the results of it
for the remainder of her life.” Id. at 21. As such, the Special Master weighed both Petitioner’s
“actual and projected pain and suffering” consistent with the mandate of the Vaccine Act. 42
U.S.C. § 300aa-15(a)(4).
Petitioner has not demonstrated that the Special Master’s award of pain and suffering
damages was too low as compared to other decisions or that the Special Master failed to consider
any pertinent information in arriving at his pain and suffering determination. Accordingly, the
Special Master’s decision is affirmed as to the pain and suffering award.
The Special Master Did Not Comply with the Vaccine Act in Awarding Lost Earnings Up
Until, But No Later Than, July 29, 2019.
Both parties challenge the Special Master’s factual finding that, but for Petitioner’s
vaccine-related injury, Bloomingdale would have employed Petitioner until, but no later than, July
29, 2019. Aside from being the date of the Special Master’s damages decision, that date had no
relation to any factual evidence, expert opinion, or legal principle involved. See ECF No. 53 at 8;
ECF No. 56 at 13.
Respondent challenges the Special Master’s decision to award past lost wages at all,
arguing that the Special Master abused his discretion by finding that Bloomingdale would have
continued to employ Petitioner, an uncertified vet tech, after the Illinois law change in February
2016. Respondent further argues that the Special Master’s choice of the July 29, 2019 date was
arbitrary because “this date had no significance to petitioner’s career,” and record evidence
suggested that, due to the change in Illinois law in early 2016 tightening restrictions on
employment of uncertified vet techs like Petitioner, she likely “would not have been able to
continue work as a vet-tech or at her pre-vaccination employer well before the date of the damages
hearing, regardless of her GBS diagnosis.” ECF No. 53 at 8.
4 These Vaccine Program cases involved flu/GBS injuries, including one with a $180,000
pain and suffering award. See Johnson v. Sec’y of Health & Human Servs., No. 16-1356V, 2018
WL 5024012, at *9 (Fed. Cl. Spec. Mstr. July 20, 2018). In Johnson, the petitioner was 61 years
old at the time of her flu vaccine, and experienced similar GBS sequelae to Petitioner, including
persistent fatigue and residual numbness in her legs and feet. Id. at *7-8; see also Gipson v. Sec’y
of Health & Human Servs., No. 17-1651V, 2019 WL 1451312, at *1 (Fed. Cl. Spec. Mstr. Feb.
25, 2019) (awarding $175,000 in pain and suffering where the flu/GBS vaccine injury resulted in
the petitioner’s death).
6

Case 1:17-vv-00428-MCW Document 66 Filed 02/06/20 Page 7 of 12
Petitioner, in turn, argues that the Special Master was wrong to limit damages to July 29,
2019, and deny Petitioner future lost wages. ECF No. 56 at 1. Petitioner contends that the grant
of past lost wages was inconsistent with the denial of future lost wages when Petitioner’s health
had remained unchanged for several years. In addition, Petitioner contends that the Special Master
inconsistently weighed Petitioner’s documented job performance issues in assessing her
termination from Bloomingdale. ECF No. 56 at 1, 11, 13.
In his decision, the Special Master found that “Petitioner’s entitlement to past lost wages
largely turns on whether she could have reasonably expected to continue to work as a vet tech
despite her injury – and if so, for how long.” ECF No. 51 at 13. After weighing the evidence, the
Special Master determined Petitioner was entitled to lost past wages because “preponderant
evidence just barely supports the conclusion that [Petitioner] lost her Bloomingdale job due to her
GBS sequelae.” Id. at 14.
In calculating Petitioner’s past lost wages, the Special Master reasoned:
[T]he remaining question is whether [Petitioner] should receive past lost wages,
based on the differential between her Bloomingdale pay and what she received from
the other jobs she briefly held for the subsequent periods. I find that she should . . .
This determination turns on my finding that it is likely, based on the evidence
presented, that [Petitioner] could have maintained her vet tech job at Bloomingdale
for some additional period of time, but for the physical limitations brought on by
GBS . . . I find that preponderant evidence just barely supports the conclusion that
[Petitioner] lost her Bloomingdale job due to her GBS sequelae. Because of the
above, I will use [Petitioner’s] Bloomingdale salary of $14.50 per hour as a basis
to compare what she earned from the date of termination through today, awarding
her the difference when she earned less (or nothing, while she was unemployed).
The Illinois law change did not preclude her continued employment in this period
at Bloomingdale, and (despite the evidence of prior issues in her work performance)
I do not find it likely that she would have been terminated that year, or even
thereafter for the next almost two years, simply due to the change . . . .
ECF No. 51 at 14-15. In a footnote, the Special Master stated:
I acknowledge that there is some inexactitude in determining that [Petitioner] could
likely have continued to work at Bloomingdale until today, rather than some earlier
date. Arguably the vet tech certification changes, coupled with the record evidence
of performance problems, together mean that Petitioner could not reasonably have
expected to maintain her Bloomingdale position for such a long period of time, and
therefore my calculation should end at an earlier date (perhaps as early as the end
of 2016). However, my overall weighing of the evidence – which takes into
account [Petitioner’s] continued GBS sequelae, the fact that she worked at
Bloomingdale for many years before her injury, and the Vaccine Program’s
mandate of generosity - leads me to conclude that a fair past lost wages award
should be so calculated, and that to do so is not arbitrary.
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Id. at 15, n. 15.5
The Special Master found that Petitioner’s entitlement to future lost wages was
“dependent on the finding that she could have indefinitely maintained her position at
Bloomingdale, or some place similar, as a vet tech but for her vaccine injury.” Id. at 16.
The Special Master found that there were “substantial reasons to doubt that supposition,”
stating:
[A]lthough I was able to determine that evidence relating to Petitioner’s
employment history barely preponderated in favor of a finding that she likely could
have continued to work at Bloomingdale through today as a vet tech (consistent
with her pre-vaccination status), I find it wholly speculative based on the same
record to conclude that [Petitioner] could work as a vet tech at Bloomingdale
beyond the present time period. It is here that Petitioner’s documented record of
performance issues at Bloomingdale becomes important. For, although I found that
the record was close when it came to determining if her 2016 termination was
attributable to performance problems or her GBS-related physical limitations, that
same employment record (which suggests Petitioner’s performance issues long pre-
dated vaccination) does not permit the conclusion that she likely could have stayed
there indefinitely. The combination of personnel issues and changes in the law do
not preponderate in her favor.
Id. at 17 (emphasis in original). Accordingly, the Special Master found it “too speculative to
assume Petitioner could have maintained her position as a vet tech [past July 29, 2019] absent her
ensuing injury” and denied future lost wages. Id.
As a preliminary matter, this Court affirms the Special Master’s factual finding that
Bloomingdale terminated Petitioner due to her GBS sequelae, as record evidence supports this
conclusion. Acknowledging that it was a close question, the Special Master drew plausible
inferences from Petitioner’s ten-year history of employment at Bloomingdale, the fact that
Bloomingdale did not cite the change in Illinois regulations or Petitioner’s uncertified status as
reasons for her termination, and the short time (roughly six months) separating her GBS/flu injury
and termination.
However, regarding the amount of lost wages awarded, the Special Master failed to adduce
actuarial evidence as required by the Vaccine Act. Specifically, the Vaccine Act mandates that
compensation awarded under the Vaccine Program “shall include . . . compensation for actual and
anticipated loss of earnings determined in accordance with generally recognized actuarial
principles and projections.” 42 U.S.C. § 300aa-15(a)(3)(A) (emphasis added).6 Nor did the
5 This past lost wages award included compensation at Petitioner’s Bloomingdale salary
rate of $14.50 per hour for the 17 weeks Petitioner was out of work and the difference between
$14.50 and her actual salary for the time Petitioner was employed from November 22, 2015 until
July 29, 2019. Id. at 15-16.
6 The Special Master noted in his damages decision that “calculation of lost earnings
damages must be performed in a ‘cautious manner in accordance with generally recognized
actuarial principles and projections.’” ECF No. 51 at 12 (citing Brown v. Sec’y of Health &
8

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Special Master explain why lost wages up until the particular date of July 29, 2019, were
warranted.
With no connection to Petitioner’s health or employment or actuarial principles or
projections, the Special Master’s determination that lost wages should end on the date of his
decision failed to comply with the Vaccine Act’s requirement that lost wages be determined “in
accordance with generally recognized actuarial principles and projections.” 42 U.S.C. § 300aa-
15(a)(3)(A).
Relevant Evidence in Lost Wages Determinations
The Federal Circuit has not interpreted what qualifies as “generally recognized actuarial
principles and projections.” The Vaccine Act “does not envision that ‘anticipated loss of earnings’
includes speculation.” See J.T. v. Sec'y of Health & Human Servs., No. 12-618V, 2015 WL
5954352, at *7 (Fed. Cl. Spec. Mstr. Sept. 17, 2015) (rejecting petitioner’s “speculative” claim for
lost earnings from a business he had never started).
Decisions interpreting “actuarial principles” in the broader context of other federal and
state statutes have required actuarial data and expert opinions. See, e.g., Chabner v. United of
Omaha Life Ins. Co., 994 F. Supp. 1185, 1194 (N.D. Cal. 1998), aff'd, 225 F.3d 1042 (9th Cir.
2000) (holding that “sound actuarial principles” under the Americans with Disabilities Act “must
. . . include reference to some sort of actuarial data either in the form of actuarial tables or clinical
studies estimating mortality rates”); Fleisher v. Phoenix Life Ins. Co., 18 F. Supp. 3d 456, 480
(S.D.N.Y. 2014) (considering conflicting expert testimony when analyzing “accepted actuarial
principles” under a New York statute).
This Court recognizes that the determination of compensation for lost earnings “in
accordance with generally recognized actuarial principles and projections” would likely require
expert opinion evidence. As one district court explained:
In this Court’s experience, when calculating future lost wages, economists typically
rely on other experts—such as vocational rehabilitation experts—to advise them as
to the income a plaintiff can probably earn due to his injuries. Economists then use
that information in conjunction with actuarial data to estimate the wage loss the
plaintiff will probably sustain over the course of his lifetime.
Dunmiles v. Jubilee Towing, LLC, No. CV 16-14325, 2017 WL 1212091, at *4 (E.D. La. Apr. 3,
2017). See LaMorte v. Penn Cent. Transp. Co., 450 F.2d 956, 957 (3d Cir. 1971) (affirming award
of lost earnings supported by actuarial testimony); Fitzpatrick v. United States, 754 F. Supp. 1023,
1037 (D. Del. 1991) (denying compensation for lost wages under the Federal Tort Claims Act
where plaintiff failed to produce “actuarial expert” testimony that “would have allowed the Court
to make an award for lost wages for [the plaintiff’s] services”).
Petitioner in this case presented limited evidence of this nature. The only such evidence is
a one-page letter dated March 13, 2018, from a Vocational Rehabilitation specialist, who opined
that “it is highly unlikely that [Petitioner] will ever again be able to obtain employment as a
Human Servs., No. 00-0182V, 2005 WL 2659073, at *6-8 (Fed. Cl. Spec. Mstr. Sept. 21, 2005)).
However, his decision included no citation to or analysis of actuarial evidence.
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Veterinary Technician.” Pet’s Ex. 14 at 1. However, the Special Master did not explain how this
opinion letter informed his award of lost earnings through July 29, 2019. The Special Master only
referenced the letter when detailing how Petitioner herself had calculated her future lost wages
claim. In this Court’s view, a one-page letter from a Vocational Specialist is not sufficient to
satisfy the Vaccine Act’s mandate for application of “generally recognized actuarial principles and
projections” in awarding lost earnings.
The decision in Brown v. Sec'y of Dep't of Health & Human Servs., No. 00-0182V, 2005
WL 2659073 (Fed. Cl. Spec. Mstr. Sept. 21, 2005), is instructive of what evidence Special Masters
have considered under similar circumstances. In that case, the Special Master was tasked with
determining lost wages when a “talented young executive who was being groomed for upper
management” contracted GBS after a tetanus vaccination. Id. at *1, 7. The respondent argued that
the petitioner had failed to demonstrate any lost earnings because the petitioner “continued to retain
employment following the vaccine related injury and eventually lost his position, not necessarily
as a result of the injury, but due to other corporate considerations.” Id. at *7.
At a hearing on damages, the Special Master in Brown heard testimony from “an expert in
employment and vocational rehabilitation,” as well as from “two well-qualified economists”
specializing in economic and personal loss evaluations, including loss resulting from injury or
death. Id. at *1, n. 1-2. These experts presented a range of evidence, including the petitioner’s
average work-life expectancy absent the vaccine injury, the precise reduction in salary attributable
to the injury, and the petitioner’s pre-injury anticipated average annual salary growth rates. See
also Petronelli v. Sec'y of Health & Human Servs., No. 12-285V, 2016 WL 1085455, at *2 (Fed.
Cl. Spec. Mstr. Feb. 22, 2016) (considering expert evidence as to the petitioner’s anticipated salary
based on her specific profession and locality). Additionally, the petitioner in Brown presented
“persuasive fact witness testimony” from several witnesses establishing that he lost a valuable
promotion “as a direct result of his injury and extended hospitalization.”7 2005 WL 2659073 at
*7. Based on the evidence, the Special Master in Brown awarded both past and future lost wages.
Id. at *7-11.
By statute, the Special Master may require whatever evidence “as may be reasonable and
necessary.” 42 U.S.C. § 300aa-12(d)(3)(B)(i)-(iii). In keeping with the “inquisitorial format” of
Vaccine Program proceedings, Special Masters exercise unique control over the evidence to be
adduced and considered. Snyder ex rel. Snyder v. Sec'y of Health & Human Servs., 88 Fed. Cl.
706, 738 (2009) (citing H.R.Rep. No. 101-386, at 87). The Federal Circuit has emphasized that
“Congress desired the special masters to have very wide discretion with respect to the evidence
they would consider and the weight assigned to that evidence.” Whitecotton by Whitecotton v.
Sec’y of Health & Human Servs., 81 F.3d 1099, 1108 (Fed. Cir. 1996). The Vaccine Act states:
7 By contrast, at the damages hearing in the instant case, the Special Master heard testimony
from four witnesses: Petitioner, her son, Shawn Dillenbeck, her daughter, Miranda Szydzik, and
her son-in-law, Andrew Szydzik. ECF No. 51 at 4-10. Aside from Petitioner, these witnesses
testified mainly to the physical symptoms of petitioner’s GBS, its effects on her life, and her
continuing sequelae. Id.
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(B) In conducting a proceeding on a petition a special master--
(i) may require such evidence as may be reasonable and necessary,
(ii) may require the submission of such information as may be reasonable and
necessary,
(iii) may require the testimony of any person and the production of any documents
as may be reasonable and necessary,
(iv) shall afford all interested persons an opportunity to submit relevant written
information—
(I) relating to the existence of the evidence described in section 300aa-
13(a)(1)(B) of this title, or
(II) relating to any allegation in a petition with respect to the matters
described in section 300aa-11(c)(1)(C)(ii) of this title, and
(v) may conduct such hearings as may be reasonable and necessary.
42 U.S.C. § 300aa-12(d)(3)(B).
Vaccine Rule 3(b) states:
The special master is responsible for conducting all proceedings, including taking
such evidence as may be appropriate, making the requisite findings of fact and
conclusions of law, preparing a decision, and determining the amount of
compensation, if any, to be awarded; and endeavoring to make the proceedings
expeditious, flexible, and less adversarial, while at the same time affording each
party a full and fair opportunity to present its case and creating a record sufficient
to allow review of the special master’s decision.
The Court of Federal Claims may remand a vaccine case to the Special Master “for further
development of the evidentiary record, as well as additional fact-finding.” See Hokkanen v. Sec’y
of Health & Human Servs., 94 Fed. Cl. 300, 302 (2010); 42 U.S.C. § 300aa–12(e)(2). The Court
may instruct the Special Master to hold additional evidentiary proceedings, allow testimony from
new witnesses, and “prepare a decision that reasonably analyzes all of the relevant evidence of
record.” See Boley v. Sec’y of Health & Human Servs., 82 Fed. Cl. 407, 408-14 (2008). Here,
because the Special Master’s past and future lost wages determinations did not reference actuarial
considerations, both the past and future lost wages calculations are remanded for further
development of the record and consideration of “generally recognized actuarial principles and
projections.” 42 U.S.C. § 300aa-15(a)(3)(A).
Offsets to Vaccine Act Compensation
Respondent argues that the Special Master erred “because he did not apply appropriate
offsets” for applicable taxes and state unemployment benefits to Petitioner’s lost earnings award.
ECF No. 53 at 13. The Vaccine Act, 42 U.S.C. § 300aa-15(g), provides that “[p]ayment of
compensation under the Program shall not be made for any item or service to the extent that
11

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payment has been made, or can reasonably be expected to be made, with respect to such item or
service . . . under any State compensation program.” Accordingly, “an award under the Vaccine
Act is offset to the extent the petitioner is entitled to receive payments from certain specified
programs.” Heinzelman v. Sec'y of Health & Human Servs., 681 F.3d 1374, 1376 (Fed. Cir. 2012).
Additionally, the Federal Circuit has stated that “it is appropriate to deduct federal and state income
taxes when determining a lost earnings award under the Vaccine Act.” Id. at 1378; Euken by
Euken v. Sec'y of Dep't of Health & Human Servs., 34 F.3d 1045, 1048 (Fed. Cir. 1994) (holding
that “FICA tax, like federal and state income taxes, is an appropriate tax to deduct in determining
a lost earnings award under the Vaccine Act”). On remand, the Special Master shall apply
appropriate tax and state compensation payment deductions to any lost wages award.
Conclusion
The Special Master’s pain and suffering award is affirmed.
The Special Master’s decision as to past and future lost wages is remanded for further
development of the record, and the Special Master is directed to reevaluate Petitioner’s entitlement
to lost wages “in accordance with generally recognized actuarial principles and projections.” 42
U.S.C. § 300aa-15(a)(3)(A).
s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Senior Judge
12

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_17-vv-00428-2
Date issued/filed: 2020-06-04
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 05/05/2020) regarding 72 DECISION Stipulation/Proffer Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
--------------------------------------------------------------------------------
Case 1:17-vv-00428-MCW Document 73 Filed 06/04/20 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-428V
(not to be published)
* * * * * * * * * * * * * * * * * * * * * * * * *
* Chief Special Master Corcoran
GAYLE DILLENBECK, *
*
Petitioner, * Filed: May 5, 2020
*
v. *
* Decision by Stipulation; Damages;
SECRETARY OF HEALTH * Guillain-Barré syndrome;
AND HUMAN SERVICES, * Influenza Vaccine; Past Lost Wages.
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Leah Durant, Law Offices of Leah V. Durant, PLLC, Washington, D.C., for Petitioner.
Debra Begley, U.S. Dep’t of Justice, Washington, D.C., for Respondent.
FINAL DECISION AWARDING DAMAGES1
On March 27, 2017, Gayle Dillenbeck filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 Petitioner alleged that she
suffered from Guillain-Barré syndrome as a result of her October 30, 2015 receipt of the influenza
vaccine. Moreover, Petitioner alleged that she experienced onset of her condition within the
timeframe set forth in the Vaccine Injury Table and had residual effects of this injury for more
1 Because this Decision contains a reasoned explanation for my actions in this case, I will 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 (2012). As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain
kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which
to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial
in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which
would constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will
be available to the public. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine Act” or “the Act”).
Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:17-vv-00428-MCW Document 73 Filed 06/04/20 Page 2 of 9
than six months. Respondent conceded entitlement in the fall of 2017, but the parties disputed the
quantum of damages to be awarded.
After holding a damages hearing in the winter of 2019, I issued a Decision Awarding
Damages on July 29, 2019 (ECF No. 51,) awarding pain and suffering, past lost wages, and past
unreimbursed expenses. The parties then filed cross Motions for Review of the Decision Awarding
Damages. The parties did not seek review of my determination regarding past unreimbursed costs
totaling $2,314.59, and my determination regarding Petitioner’s pain and suffering award of
$180,857.15 was affirmed. See Order on Review, dated January 22, 2020 (ECF No. 62). The issue
of past lost wages, however, was remanded for my re-evaluation.
The parties have now agreed in a stipulation (filed on May 5, 2020) that the issue of past
lost wages could be settled, and that a final Decision should be entered awarding Petitioner
compensation.
I have reviewed the file, and based upon that review, I conclude that the parties’ stipulation
(as attached hereto) is reasonable. I therefore adopt it as my decision in awarding damages on the
terms set forth therein.
The stipulation awards:
• A lump sum of $218,171.74 in the form of a check payable to Petitioner, which
represents $35,000.00 for past lost wages; $2,314.59 for unreimbursed costs, and
$180,857.15 for pain and suffering.
Stipulation at ¶10–13. This amount represents compensation for all damages that would be
available under Section 15(a) of the Act. In addition, the sums for unreimbursed costs and pain
and suffering are also consistent with the undisputed/unappealed portions of my earlier/remanded
damages decision, as well as the January 2020 Order of the Court of Federal Claims.
Accordingly, I approve a Vaccine Program award in the requested amount set forth above
to be made to Petitioner. 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.3
IT IS SO ORDERED.
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by each filing (either jointly or separately)
a notice renouncing their right to seek review.
2

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/s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
GAYLE DILLENBECK,
Petitioner, No. 17-428V
Chief Special Master Corcoran
V. ECF
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
STIPULATION
The parties hereby stipulate to the following matters:
I. Gayle Dillenbeck ("petitioner") filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-IO to 34 (the "Vaccine
Program"). The petition seeks compensation for an injury allegedly related to petitioner's receipt
of an influenza ("flu") vaccine, which is contained in the Vaccine Injury Table (the "Table"), 42
C.F.R. § 100.3(a).
2. Petitioner received a flu vaccine on October 30, 2015.
3. The vaccine was administered in the United States.
4. Petitioner sustained the first symptoms or manifestation of onset of Guillain-Barre
Syndrome ("GBS") within the time period set forth in the Table, and experienced the residual
effects of her GBS for more than six months.
5. There is not a preponderance of evidence demonstrating that petitioner's GBS is
due to a factor unrelated to her immunization.
6. Petitioner represents that there has been no prior award or settlement of a civil
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action for damages on her behalf as a result of her alleged injury.
7. Accordingly, on October 20, 2017, respondent filed a Rule 4 Report stating that
petitioner is entitled to compensation for her GBS under the tenns of the Vaccine Act.
8. On October 23, 2017, the Chief Special Master issued an entitlement decision,
finding petitioner entitled to compensation under the Act. On July 29, 2019, the Chief Special
Master issued a Decision Awarding Damages, including pain and suffering, past lost wages, and
past unreimbursed expenses.
9. On August 28, 2019, the parties filed cross Motions for Review of the Chief
Special Master's Decision Awarding Damages, with the petitioner challenging the Chief Special
Master's award of damages for pain and suffering and denial of future lost wages, and the
respondent seeking review of the Chief Special Master's past lost wages award. On January 22,
2020, Senior Judge Coster Williams issued an Opinion and Remand Order, affirming the Chief
Special Master's award of pain and suffering and remanding the Chief Special Master's decision
on lost wages, directing him to re-evaluate petitioner's entitlement to lost wages "in accordance
with generally recognized actuarial principles and projections." Dillenbeck v. Sec '.Y ofH ealth &
Human Servs., No. l 7-428V, 2020 WL 582588, at* 10 (Fed. Cl. Feb. 6, 2020) (citing 42 U.S.C. §
300aa-l 5( a)(3)(A)).
10. The parties did not seek review of the Chief Special Master's award of $2,314.59
for past unreimbursed expenses.
11. The parties waive the right to appeal the Court's Opinion and Remand Order, and
therefore petitioner waives the right to appeal the Court's denial of petitioner's motion for review,
and the Court's affirmance of the Chief Special Master's award of $180,857.15 for pain and
suffering.
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12. Maintaining their positions as to the sole issue on remand, the parties nevertheless
now agree that the issue between them shall be settled and that a decision should be entered
awarding compensation described in paragraph 13 below.
13. As soon as practicable after an entry of judgment reflecting a decision consistent
with the terms of this Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa-2l(a)(l), the Secretary of Health and Human Services will issue the
following vaccine compensation payment:
A lump sum of $35,000.00 in the form of a check payable to petitioner, which
represents compensation for past lost wages.
This amount represents compensation for all damages that would be available under 42 U.S.C. §
300aa-l 5(a)(3)(A).
14. As soon as practicable after the entry ofj udgment on entitlement in this case, and
after petitioner has filed both a proper and timely election to receive compensation pursuant to 42
U.S.C. § 300aa-2l(a)(l) and an application, the parties will submit to further proceedings before
the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this
petition.
15. Petitioner and her attorney represent that compensation to be provided pursuant to
this Stipulation is not for any items or services for which the Program is not primarily liable under
42 U .S.C. § 300aa-l 5(g), to the extent that payment has been made or can reasonably be expected
to be made under any State compensation programs, insurance policies, Federal or State health
benefits programs (other than Title XIX of the Social Security Act (42 U.S.C. § 1396 et seq.)), or
entities that provide health services on a pre-paid basis.
16. Payment made pursuant to paragraph 13 of this Stipulation, and any amount
awarded pursuant to paragraph 14, will be made in accordance with 42 U.S.C. § 300aa-l 5(i),
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subject to the availability of sufficient statutory funds.
17. The parties and their attorneys further agree and stipulate that, except for any
award for attorneys' fees and litigation costs, and past unreimbursed expenses, the money
provided pursuant to this Stipulation will be used solely for the benefit of petitioner as
contemplated by a strict construction of 42 U.S.C. § 300aa-l 5(a) and (d), and subject to the
conditions of 42 U.S.C. § 300aa-15(g) and (h).
18. In return for the payments described in paragraph 13, and any amount awarded
pursuant to paragraph 14, petitioner, in her individual capacity, and on behalf of her heirs,
executors, administrators, successors, or assigns, does forever irrevocably and unconditionally
release, acquit and discharge the United States and the Secretary of Health and Human Services
from any and all actions or causes of action (including agreements, judgments, claims, damages,
loss of services, expenses and all demands of whatever kind or nature) that have been brought,
could have been brought, or could be timely brought in the Court of Federal Claims, under the
National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq., on account of, or
in any way growing out of, any and all known or unknown, suspected or unsuspected personal
injuries to or death of petitioner resulting from, or alleged to have resulted from the flu vaccine
administered on October 30, 2015, as alleged in a Petition filed on March 27, 2017, in the United
States Court of Federal Claims as petition No. l 7-428V.
19. If petitioner should die prior to entry ofj udgment, this agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
20. If the special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the United States Court of Federal Claims fails to enter judgment in
conformity with a decision that is in complete conformity with the terms of this Stipulation, then
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the parties' settlement and this Stipulation shall be voidable at the sole discretion of either party.
21. This Stipulation expresses a full and complete negotiated settlement of liability and
damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except
as otherwise noted in paragraph 14 above. There is absolutely no agreement on the part of the
parties hereto to make any payment or do any act or thing other than is herein expressly stated and
clearly agreed to. The parties further agree and understand that the award described in this
Stipulation may reflect a compromise of the parties' respective positions as to liability and/or
amount of damages, and further, that a change in the nature of the injury or condition or in the
items of compensation sought, is not grounds to modify or revise this agreement.
22. This Stipulation shall not be construed as an admission by the United States or the
Secretary of Health and Human Services that the flu vaccine caused petitioner's GBS or any other
injury or her current condition; however, petitioner has satisfied the Table criteria to establish
entitlement to compensation.
23. All rights and obligations of petitioner hereunder shall apply equally to petitioner's
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
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Respectfully submitted,
PETITIONER:
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YUE
GA DILLENBECK
ATTORNEY OF RECORD FOR AUTHORIZED REPRESENTATIVE
PETITIONER: OF THE ATTORNEY GENERAL:
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~ARINE E. REEVES
1717 K Street NW, Suite 900 Deputy Director
Washington, DC 20006 Torts Branch
202-775-9200 Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, DC 20044-0146
AUTHORIZED REPRESENTATIVE ATTORNEY OF RECORD FOR
OF THE SECRETARY OF HEALTH RESPONDENT:
AND HUMAN SERVICES: ~ 3 - ~
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TAMARA OVERBY DEBRA~GLEY
Acting Director, Division of Trial Attorney
Injury Compensation Programs Torts Branch
Healthcare Systems Bureau Civil Division
U.S. Department of Health U.S. Department of Justice
and Human Services P.O. Box 146
5600 Fishers Lane Benjamin Franklin Station
Parklawn Building, Mail Stop 08-N 1468 Washington, DC 20044-0146
Rockville, MD 20857 (202) 616-4181
Dated: 4$ / S/ 7--c)
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