Appealed from U.S. Claims Court; Judge Gibson.
Markey, Mayer, and Lourie, Circuit Judges.
The Secretary of Health and Human Services appeals the judgment of the Claims Court, 18 Cl. Ct. 834 (1989), compensating Conway Beverley Carter Brown under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (1988) (current version at 42 U.S.C.A. §§ 300aa-10 to -34 (West Supp. 1990)). We reverse in part and remand.
As an infant, in 1967 Brown contracted polio after she was given the Sabin oral polio vaccine. The disease left her with permanent disabilities, including muscle atrophy and paralysis in one arm and weakness in her legs. To alleviate these disabilities, her parents spent large sums, and despite her remarkable progress, additional expenses for corrective surgery and continuing therapy are foreseeable throughout her life.
In 1986, Congress established the National Vaccine Injury Compensation Program (the Program) as an alternative to tort suits for persons seeking compensation for vaccine-related injuries or death. The Program not only provides relief for those injured after it was established, but also, at a reduced level, for those injured before its enactment. Because her injury occurred in 1967, Brown qualifies under section 300aa-15(b), 42 U.S.C.A. § 300aa-15(b) (West Supp. 1990), which provided compensation for injuries incurred before October 1, 1988, the effective date of the Program.
Brown filed her claim for compensation on September 30, 1988. The Secretary answered on March 10, 1989, but his counsel from the Department of Justice subsequently withdrew from the case, apparently because of understaffing and budgetary constraints. Pursuant to section 300aa-12(c) of the Program, 42 U.S.C. § 300aa-12(c) (1988), Brown's claim proceeded before a special master who issued his report and recommended decision on September 13, 1989, awarding a total of $881,442.76: $652,590 for medical and rehabilitative expenses, $200,000 for pain and suffering and emotional distress, and $28,852.76 for attorneys' fees and costs. The Secretary's counsel then filed a notice of appearance and objected to the special master's report on October 3, 1989. In response, the Claims Court conducted a de novo review of the master's report pursuant to section 300aa-12(d)(1), id. § 300aa-12(d)(1),*fn* and reduced the award to $525,462.26: $324,575.50 for medical and rehabilitative expenses, $175,000 for pain and suffering, and $25,886.76 for attorneys' fees and costs. The Secretary appeals because he believes the Claims Court erred both in its construction of the limitations imposed by section 300aa-15(b), 42 U.S.C.A. § 300aa-15(b) (West Supp. 1990), on Brown's compensation award, and in its award to Brown for wheelchairs and future architectural modifications to her house as part of medical and rehabilitative expenses.
As a threshold matter, Brown argues that the Secretary's failure to participate in the proceedings before the special master precludes his appeal of any issue. We think not. When this case came before the Claims Court, it had the authority under section 300aa-12(d)(1), 42 U.S.C. § 300aa-12(d)(1) (1988), to decide de novo any matter decided by the special master, including findings of fact and conclusions of law. That section explicitly said either party could raise an objection to the master's findings or conclusions in the Claims Court, and nowhere conditioned the right to object upon their participation before the special master. The preceding section, in fact, described the masters as "adjuncts" to the Claims Court. Id. § 300aa-12(c)(2).
Brown also argues that the Secretary's absence from the special master proceeding prejudiced her case. She reasons that if the Secretary had participated, she could have shaped her case to meet the objections he raised in the Claims Court. But the main issue raised by the Secretary is whether the special master and the Claims Court correctly interpreted section 300aa-15(b), 42 U.S.C.A. § 300aa-15(b) (West Supp. 1990), a question of law not dependent on the sufficiency of the evidence. There is no question of Brown's entitlement to some compensation under the Program because she meets the requirements for eligibility set forth in section 300aa-13. 42 U.S.C. § 300aa-13 (1988). We see no prejudice in the Secretary's absence from the special master phase.
The crux of the appeal is the Claims Court's construction of section 300aa-15(b). Because it has been amended twice, our first task is to determine which version applies. The original law limited recovery in cases of pre-Program injury to unreimbursed actual expenses and reasonable projected expenses, including diagnosis, medical and remedial care, rehabilitation and the like. National Vaccine Injury Compensation Program, Pub. L. No. 99-660, § 311, 100 Stat. 3755, 3768 (1986). The 1987 amendments, which were part of the Program when it became effective, permitted some compensation for lost wages, pain and suffering, and attorneys fees. As amended, section 300aa-15(b) provided that:
Compensation awarded under the Program to a petitioner under section 300aa-11 of this title for a vaccine-related injury or death associated with the administration of a vaccine before October 1, 1988 may not include the compensation described in paragraph (1)(B) of subsection (a) of this section [relating to actual unreimbursable expenses incurred before the judgment] and may include attorneys' fees and other costs included in a judgment under subsection (e) of this section, except that the total amount that may be paid as compensation under paragraphs (3) and (4) of subsection (a) of this section [for lost wages and pain and suffering] and included as attorneys' fees and other costs under subsection (e) of this section may not exceed $30,000.
42 U.S.C. § 300aa-15(b) (1988) (emphasis added). This was the version in force when this case ...