Notice: Federal Circuit Local Rule 47.8(B) States that Opinions and Orders Which Are Designated as Not Citable as Precedent Shall Not Be Employed or Cited as Precedent. this Does Not Preclude Assertion of Issues of Claim Preclusion, Issue Preclusion, Judicial Estoppel, Law of the Case or the Like Based on a Decision of the Court Rendered in a Nonprecedential Opinion or Order. Jane Marie Schwenk, Petitioner, v. Secretary of the Department of Health and Human Services, Respondent., 956 F.2d 1173 (Fed. Cir. 1992)

Federal Circuits, Fed. Cir. (February 14, 1992)

Docket number: 91-5133
Permanent Link: http://vlex.com/vid/37427545
Id. vLex: VLEX-37427545

Click here to download this article in graphic format (Acrobat Reader)

Search in this document

Sponsored Ads:


Citations:

Text:

Before RICH and PLAGER, Circuit Judges, and COHN, District Judge.*

DECISION

RICH, Circuit Judge.

Jane Marie Schwenk appeals from the June 4, 1991 decision of the United States Claims Court (Harkins, J.), reported at 23 Cl.Ct. 287, sustaining the March 12, 1991 decision of the Special Master which held, inter alia, that petitioner was not entitled to be compensated under the National Vaccine Injury Compensation Program (the Program)1 for the cost of health insurance. We affirm.

DISCUSSION

At the time of the Special Master's decision, petitioner was a 22-year old college student who expected to graduate in May, 1991 with a degree in finance from the University of Evansville at Evansville, Indiana. The Special Master found that petitioner suffered from a vaccine-related partial complex seizure disorder, and that petitioner was entitled to compensation therefor under the Program.

In reaching her decision as to the amount of compensation to be awarded, the Special Master considered that under the Program, compensation shall not be made

for any item or service to the extent that payment ... can reasonably be expected to be made, with respect to such item or service ... under an insurance policy....

42 USC 300aa-15(g) (emphasis added). Applying this provision, the Special Master found it reasonable to assume (1) that petitioner would be employed within one year following her graduation from college by an employer providing group health insurance, and (2) that petitioner would be covered by that insurance within one additional year (assuming a one-year exclusion period due to petitioner's pre-existing condition). Based upon these assumptions, the Special Master denied petitioner's claim for compensation to cover the cost of health insurance. However, petitioner was awarded a one-time, up-front allotment of $10,000 to cover costs incurred during any period during which she might not be insured, as well as an annuity covering certain allowed costs of transportation, medical care and tests, and medication.

Petitioner contended before the Claims Court that the Special Master abused her discretion by assuming that petitioner would obtain and maintain employment with an employer having a group health insurance policy that would cover petitioner's future vaccine-related medical costs. In addition, petitioner initially contended that the Special Master's decision arbitrarily and capriciously required petitioner to obtain employment in Indiana; this latter contention has apparently been withdrawn, and in any event we see no basis for it in the record. The Claims Court rejected petitioner's arguments, and affirmed the decision of the Special Master.

We review the decision of the Claims Court. For reasons expressed in greater detail in the Claims Court's opinion, we agree that the Special Master's assumption that petitioner would be covered by a future employer's group health insurance was a reasonable one, and that her decision denying compensation for insurance costs, based upon that assumption, was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The Special Master's findings as to petitioner's potential for competitive employment and eligibility for insurance coverage through a future employer were based upon substantial evidence of record, including, in several instances, the unrebutted testimony of respondent's experts.

That reasonable individuals might reach different conclusions as to the amount of compensation to be awarded in this case is not a sufficient ground for reversal. The Claims Court Judge correctly reviewed the work of the Special Master, and affirmed her judgment. There is no error.

* Honorable Avern L. Cohn, District Judge, Eastern District of Michigan, sitting by designation

1 Established pursuant to the National Childhood Vaccine Injury Act, 42 USC 300aa-1 through 300aa-34 (1988 & Supp. I 1989)

Other documents:
USA vs. Burciaga (5th Cir. 2003) | Merrill v US Trustee 4th Cir 2001 | Gonzales v Estelle * 543 F.2d 754 5th Cir 1976 | 29 CFR 1917.44 - General rules applicable to vehicles. 4 | Arqueologos de EEUU descubren en Florida un barco espanol del siglo XVI sepultado en la arena | anunci de la societat cooperativa albarrosa relatiu a la dissolució de la cooperativa. | beschluss des rates vom 19 november 2004 über die ernennung eines deutschen mitglieds des wirtschafts- und sozialausschusses | Case of Tribunal Superior de Justicia Sevilla Andalucía Sala de lo Contencioso-Administrativo of October 31 2001 | 42 usc 5113 sec 5113 information and service functions by appropriate administrative arrangeme... | smith vs seacor marine llc 5th cir 2007 | RESOLUCION de 3 de febrero de 1997, de la Delegacion Provincial de Cordoba, sobre propuesta de baja en el Censo de Centros Colaboradores de la Direccion General de Forma... | resolucion de 3 de diciembre de 1993, de la universidad de extremadura, por la que se publica el plan de estudios para la obtencion ... | RESOLUCION ECF/3334/2006 de 5 de octubre por la que se hace publico el resultado de la 227 subasta de pagares de la tesoreria de la Generali...