Gross v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
No. 19-835
(Filed Under Seal: May 28, 2021)
Reissued: June 14, 2021 1
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ANITA GROSS, )
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Petitioner, )
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v. )
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SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
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Respondent. )
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Randall G. Knutson, Knutson & Casey Law Firm, Mankato, MN, for petitioner.
Mollie Danielle Gorney, Vaccine/Torts Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent.
OPINION
SMITH, Senior Judge
Respondent, Secretary of the Department of Health and Human Services, seeks review of
Chief Special Master Corcoran’s decision awarding petitioner, Anita Gross, compensation for
her vaccine injury. Petitioner brought this action pursuant to the National Vaccine Injury
Compensation Program, 42 U.S.C. §§ 300aa-10, et seq. (the “Vaccine Act”), after suffering from
Guillain-Barré Syndrome (“GBS”) caused by the influenza (“flu”) vaccine. While respondent
conceded that petitioner was entitled to compensation, the parties did not agree on the type and
amount of compensation that should be awarded. After hearing the parties’ arguments, the Chief
Special Master issued a decision awarding petitioner compensation for: (1) pain and suffering,
and (2) past lost earnings. Respondent now moves for review of the award for past lost earnings.
For the following reasons, the Court DENIES respondent’s Motion for Review.
I. BACKGROUND AND PROCEDURAL HISTORY
On October 25, 2017, petitioner received the flu vaccine and, approximately 12 days after
the vaccination, began experiencing symptoms of GBS. Petition at 1, ECF No. 1. On June 6,
2019, petitioner filed her Petition with the Office of Special Masters, seeking compensation for
1 An unredacted version of this opinion was issued under seal on May 28, 2021. The
parties were given an opportunity to propose redactions, but no such proposals were made.
her vaccine-related injuries. Id. On May 13, 2020, respondent submitted a Vaccine Rule 4(c)
Report recommending that compensation be awarded. Respondent’s Rule 4(c) Report
Recommending Compensation at 7, ECF No. 21. That same day, the Chief Special Master ruled
on entitlement in favor of petitioner and the case proceeded to damages where the parties
engaged in discussions regarding the appropriate amount of compensation. Ruling on
Entitlement, ECF No. 22; Damages Order, ECF No. 23.
On August 17, 2020, the parties advised the Chief Special Master that they were unable
to reach an agreement and requested a decision on damages. Petitioner’s Status Report, ECF No.
29. Both parties agreed to an expedited hearing and submitted briefs by September 29, 2020. In
her damages brief, petitioner requested $180,000.00 for pain and suffering, $228,212.70 for past
and future lost earnings, and $5,391.10 for out-of-pocket medical expenses. Petitioner’s
Memorandum for Damages Decision at 19, ECF No. 32. On February 26, 2021, petitioner
withdrew her request for future lost earnings and sought only $1,870.40 of past lost earnings
representing 80 hours of leave taken during her illness. Transcript at 4:3–5:3, ECF No. 41; see
also Decision Awarding Damages 3, ECF No. 39. Of those 80 hours, 74 hours had been taken
by petitioner as paid time off (“PTO”), while six hours were taken as unpaid leave. Petitioner’s
Memorandum for Damages Decision at 13, ECF No. 32. Respondent argued that petitioner
should receive only $82,500.00 for pain and suffering, $109.59 for six hours of unpaid leave
(after applying tax offsets), and $5,391.10 for medical expenses. Respondent’s Brief on
Damages at 9, 13, ECF No. 34. On March 11, 2021, the Chief Special Master issued a written
Decision awarding petitioner $160,000.00 for pain and suffering, $798.75 for past lost earnings
representing six hours of unpaid leave and one-half of the PTO hours taken, and $5,391.10 for
medical expenses. Decision Awarding Damages at 9, ECF No. 39.
Respondent now seeks review of the decision to award petitioner for past lost earnings.
Respondent’s Motion for Review, ECF No. 42. On April 9, 2021, respondent filed its Motion
for Review and supporting Memorandum. Id.; Respondent’s Memorandum in Support of
Motion for Review, ECF No. 43. On April 20, 2021, petitioner filed a response to respondent’s
Motion for Review. Petitioner’s Memorandum in Opposition to Respondent’s Motion for
Review, ECF No. 45. Respondent’s Motion is fully briefed and ripe for review.
II. STANDARD OF REVIEW
Under the Vaccine Act, this Court may review a Special Master’s decision upon the
timely request of either party. 42 U.S.C. § 300aa-12(e)(1)–(2). In reviewing such a request, this
Court may:
(A) uphold the findings of fact and conclusions of law . . . ,
(B) set aside any findings of fact or conclusion of law . . . found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law . . . , or
(C) remand the petition to the special master for further action in accordance with
the court’s direction.
Id. § 300aa-12(e)(2)(A)–(C). “Fact findings are reviewed . . . under the arbitrary and capricious
standard; legal questions under the ‘not in accordance with law’ standard; and discretionary
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rulings under the abuse of discretion standard.” Munn v. Sec’y of Dep’t of Health and Human
Servs., 970 F.2d 863, 870 n.10 (Fed. Cir. 1992).
On review of a decision, this Court cannot “substitute its judgment for that of the special
master merely because it might have reached a different conclusion.” Snyder v. Sec’y of Health
and Human Servs., 88 Fed. Cl. 706, 718 (2009). This court does not “reweigh the factual
evidence, assess whether the special master correctly evaluated the evidence, or examine the
probative value of the evidence or the credibility of the witnesses—these are all matters within
the purview of the fact finder.” Porter v. Sec’y of Health & Hum. Servs., 663 F.3d 1242, 1249
(Fed. Cir. 2011). “[R]eversible error is extremely difficult to demonstrate if the special master
has considered the relevant evidence of record, drawn plausible inferences and articulated a
rational basis for the decision.” Lampe v. Sec’y of Health & Human Servs., 219 F.3d 1357, 1360
(Fed. Cir. 2000) (internal quotation marks omitted). “[A]s long as a special master’s finding of
fact is ‘based on evidence in the record that [is] not wholly implausible, we are compelled to
uphold that finding as not being arbitrary or capricious.’” Porter, 663 F.3d at 1249 (quoting
Cedillo v. Sec’y of Health & Hum. Servs., 617 F.3d 1328, 1338 (Fed. Cir. 2010)).
III. DISCUSSION
The petitioner bears the burden of proof with respect to each element of compensation
requested. See Brewer v. Sec’y of Health & Human Servs., No. 93-0092V, 1996 WL 147722, at
*22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). Here, the petitioner’s burden of proof is “by a
preponderance of the evidence.” See 42 U.S.C. §§ 300aa-13(a)(1)(A). Simply put, the petitioner
needed only to show that the likelihood of her claims being valid was “more probable than not.”
See Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1279 (Fed. Cir. 2005).
On review, respondent disputes that the petitioner has met her burden of proof. Of the
$798.75 in past lost earnings awarded, the respondent challenges $689.16 representing
compensation for one-half of the PTO taken by the petitioner during her illness (i.e., 37 hours of
PTO). See Respondent’s Motion for Review at 3–4, ECF No. 42. The respondent’s Motion for
Review argues the following: (1) the Chief Special Master erred by awarding compensation for
used PTO because the petitioner did not meet her burden of proof; and (2) the Chief Special
Master’s award of one-half of the PTO hours taken by petitioner was arbitrary. Id. at 6–8. The
Court addresses these arguments in turn.
A. Paid Time Off as Loss of Earnings
This Court reviews findings of fact by special masters under the arbitrary and capricious
standard. See supra Section II (“Standard of Review”). Here, it was not arbitrary or capricious
for the Chief Special Master to find that petitioner’s use of PTO during her illness constituted a
loss of earnings. The Chief Special Master based his finding on petitioner’s sworn affidavit and
an employee benefits document. Decision Awarding Damages at 8, ECF No. 39. Petitioner’s
affidavit states that she “los[t] 10 days of wages (PTO) as a result of [her] vaccine injuries” and
she “would have been paid for those PTO days when [she] quit.” Affidavit of Anita Gross at ¶ 6,
ECF No. 38. Petitioner’s affidavit further states that her employer “did not require employees to
use their PTO or lose it at the end of each year” so that employees “could carry it over.” Id. at
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¶ 7. Additionally, the benefits document corroborates petitioner’s affidavit. Within the
document, a table titled “PAID TIME OFF” lists the amount of PTO earned by an employee
according to years of service and states that “accruals continue up to 20 years of service.”
Petitioner’s Exhibit 20, ECF No. 38. As recognized by the Chief Special Master, there is no
other evidence in the record to consider that could support (or refute) petitioner’s claim. See
Transcript at 15:10–14, ECF No. 41.
Based on this evidence, the Chief Special Master reasonably found that petitioner would
have likely been reimbursed by her employer for any unused PTO at the end of her employment
so that her use of PTO during her illness constituted a loss of earnings. Decision Awarding
Damages at 8–9, ECF No. 39. While the record evidence does not definitively show that
petitioner’s unused PTO would be paid out, a reasonable fact finder could still conclude that
petitioner would likely have been reimbursed for unused PTO by her employer. Even if
reasonable minds would differ as to whether petitioner’s claim is supported by preponderant
evidence, this Court examines the Chief Special Master’s findings through a deferential standard
of review. As it cannot be said that the Chief Special Master has drawn a wholly implausible
inference based on the evidence in the record, the Court is compelled to uphold the Chief Special
Master’s finding.
B. The Amount in Damages
Respondent also argues that the Chief Special Master decided on an arbitrary amount in
awarding petitioner one-half of her claim for PTO taken. However, special masters often
exercise wide discretion in determining appropriate awards in damages cases where the amount
and calculation of the award for categories such as pain and suffering, lost past and future
earnings, and reasonable future medical costs, are in dispute. See, e.g., Binette v. Sec’y of Health
& Human Servs., No. 16–731V, 2019 WL 1552620, at *14–15 (Fed. Cl. Spec. Mstr. Mar. 20,
2019) (determining the award amount for past and future pain and suffering); Zatuchni v. Sec’y
of Health & Human Servs., No. 94–58V, 2006 WL 1499982, at *7–8 (Fed. Cl. Spec. Mstr. May
10, 2006) (calculating an award for lost earnings), vacated in part on other grounds, 73 Fed. Cl.
451 (2006), aff’d 516 F.3d 1312 (Fed. Cir. 2008).
Here, the Chief Special Master determined that the petitioner was entitled to
compensation for lost earnings but awarded petitioner for only half of the PTO taken because of
uncertainty as to whether petitioner would have used all of her PTO hours prior to leaving
employment. Transcript at 23:20-23, ECF No. 41; Decision Awarding Damages at 8–9, ECF
No. 39. As the Chief Special Master articulated a rational basis for his decision, this Court finds
no error.
IV. CONCLUSION
For the foregoing reasons, the Court does not find the compensation award for
petitioner’s expended PTO as arbitrary or capricious and upholds the Chief Special Master’s
decision. Accordingly, the Court DENIES respondent’s Motion for Review.
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IT IS SO ORDERED.
s/ Loren A. Smith
Loren A. Smith,
Senior Judge
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