Hall v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 20-1066V

LEIGH ANNE HALL,

Chief Special Master Corcoran

Petitioner,

v.

SECRETARY OF HEALTH AND Filed: November 8, 2024

HUMAN SERVICES,

Respondent.

Michael G. McLaren, Black McLaren, et al., PC, Memphis, TN, for Petitioner.

Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.

FINDINGS OF FACT AND CONCLUSIONS OF LAW DISMISSING TABLE CASE1

On August 25, 2020, Leigh Anne Hall filed a petition for compensation under the

National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the

“Vaccine Act”). Petitioner alleged that as a result of an influenza (“flu”) vaccine

administered to her on October 1, 2018, she suffered a shoulder injury related to vaccine

administration (“SIRVA”), a Vaccine Table injury. Petition (ECF No. 1) at Preamble. The

case was assigned to the Special Processing Unit (“SPU”) of the Office of Special

Masters.

For the reasons discussed below, I find that the evidence preponderates against

the conclusion that the onset of Petitioner’s symptoms occurred within the specified Table

1 Because this ruling and decision contains a reasoned explanation for the action in this case, I am required

to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act

of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government

Services). This means this Ruling/Decision will be available to anyone with access to the internet. In

accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other

information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I

agree that the identified material fits within this definition, I will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease

of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §

300aa (2012).

timeframe of 48 hours, meaning Petitioner’s Table claim is not viable. Petitioner will,

however, be given an opportunity to establish an “off-Table” claim, based on the same

facts.

I. Relevant Procedural History

The claim was initiated on August 25, 2020, and the relevant medical records were

filed on August 31, 2020. ECF Nos. 1, 6. The initial status conference was held on October

26, 2020, after which Petitioner was invited to submit a demand to Respondent. (ECF No.

14). Petitioner filed additional medical records on October 30, 2020, and a status report

on November 24, 2020, indicating that she had submitted a demand to Respondent. (ECF

No. 16).

On October 1, 2021, Respondent submitted a status report indicating that he

intended to defend this case. (ECF No. 22). Respondent later filed his Rule 4(c) Report

on December 3, 2021 (ECF No. 23), and in it he contended that the medical records fail

to demonstrate the onset of her alleged shoulder pain was within 48 hours, that her pain

was not limited to her left shoulder, that there was no evidence that Petitioner experienced

reduced range of motion (“ROM”), and that her left shoulder pain resolved within six

months of vaccination. Report at 7-8. Petitioner subsequently filed several affidavits from

Petitioner, her husband, her daughter, and a friend on January 25, 2022, and February

22, 2022. (ECF Nos. 24 & 25). I issued a scheduling order on November 14, 2022, for

Petitioner to file a Motion for a Ruling on the Record. (ECF No. 27).

On January 12, 2023, Petitioner filed the instant Motion for a Ruling on the Record

arguing that she had met the severity requirement and otherwise established entitlement

to compensation for a SIRVA Table Injury. Petitioner’s Motion for Ruling on the Record

and Brief in Support of Damages (“Mot.”) (ECF No. 29).

Respondent opposed the motion on February 28, 2023, reiterating the arguments

set forth in the Rule 4(c) Report, that Petitioner did not meet the requirements to prove

he suffered a SIRVA within 48 hours and suffered residual effects for more than six

months after vaccination. Respondent’s Response to Petitioner’s Motion for Ruling on the

Record (“Resp.”) (ECF No. 30). Petitioner filed his reply on March 23, 2023. Petitioner’s

Reply Brief in Support of Petitioner’s Motion for Ruling on the Record and Brief in Support

of Damages (“Reply”) (ECF No. 20. The matter is ripe for resolution.

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II. Relevant Medical History

1. Medical Records

Petitioner was 40 years old when she received a flu vaccine in her left arm at St.

Jude’s Children’s Research Hospital, where she was employed as a pediatric ICU nurse.

Ex. 2 at 1. Petitioner’s medical history indicated that she had reported neck and left

shoulder pain in September 2016, although no cause was identified for the pain and it

appears to have fully resolved prior to her receipt of the vaccination. Ex. 11 at 5-8.

On November 6, 2018 (36 days after vaccination), Petitioner visited her primary

care physician (“PCP”), Dr. Rebecca Phillips, with a complaint of left posterior shoulder

pain and upper back pain that began “about 5 days after [receiving a] flu shot in [her] left

arm. Ex. 3 at 19. Dr. Phillips provided Petitioner with exercise material which might help

her shoulder but nothing was prescribed and no further tests were ordered. Id. at 21.

Petitioner’s next medical visit was five months later - April 9, 2019 - when she

returned to Dr. Phillips for a regular checkup and labs. Ex. 3 at 15. There was no reference

to any left shoulder pain recorded at this visit. Petitioner had another doctor’s visit on July

18, 2019, when she saw her gastroenterologist concerning her Crohn’s disease. Ex. 13.

During this visit, she complained of left shoulder pain which she described as “a constant

burning sensation” and noted that her primary physician felt that this was a “referred pain

possibly from her GI tract” although the gastroenterologist did not believe that Petitioner’s

shoulder pain was associated with any gastrointestinal symptoms. Id. at 10.

Petitioner had another regular checkup with Dr. Phillips on November 5, 2019. At

that checkup, she noted that she had shoulder pain since November of the prior year that

had improved when she had her checkup in April but had recently worsened again. Id. at

11. At this time, Petitioner again indicated that her left shoulder pain began about five

days after receiving a flu shot in her left arm, but that she “does not think the flu shot

caused the symptoms.” Id. Petitioner was diagnosed with left shoulder pain of unspecified

chronicity, Dr. Phillips again printed rotator cuff rehabilitation material and advised treating

the shoulder with heat and cold, and to rest the shoulder for a few days, and Petitioner

was referred to an orthopedist. Id. at 12-13.

On November 19, 2019, Petitioner visited Dr. Thomas Knox, an orthopedist, for

left shoulder pain of one-year duration which was increasing, with occasional

paresthesias into her small and ring fingers. Ex. 3 at 34. At this time, Petitioner indicated

that she “was lifting a patient when she noted the onset of some pain soreness of her left

shoulder. However, the symptoms seemed to go on without too much trouble. However

over the last few months the symptoms have increased with pain soreness” and she

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reported pain levels of 6 out of 10. Id. X-rays were taken which revealed “very impressive

acromioclavicular arthritis” with type III acromion, and Petitioner was diagnosed with

“chronic subacromial bursitis of the left shoulder with biceps tendinosis” and “a probable

supraspinatus rotator cuff tear.” Id. at 35.

Petitioner underwent an MRI on November 25, 2019, which showed edema within

the acromioclavicular joint, slight undersurface spurring, irregular bones corresponding to

degenerative changes, and supraspinatus tendinopathy but no full-thickness tear. Ex. 4

at 43. Based on this MRI, Dr. Knox diagnosed Petitioner with chronic impingement

syndrome of the left shoulder due to acromioclavicular arthritis, as well as chronic

supraspinatus and biceps tendinosis. Id. at 23.

On January 8, 2020, Petitioner underwent arthroscopic surgery of her left shoulder,

including subacromial bursectomy, coracoacromial ligament release, abrasion

acromioplasty, and partial lateral claviculectomy. Ex. 4 at 59, Ex. 5 at 16-25. Between

January 20 and March 16, 2020, Petitioner attended 11 sessions of PT after which she

reported some improvement but still noted pain. Petitioner underwent a second MRI on

March 5, 2020, which revealed “large effusion and rotator cuff injury” which was believed

to be a “partial tear without retraction of the rotator cuff” and postoperative in nature. Ex.

4, at 42. The following day, Petitioner discussed the MRI results with Dr. Knox and elected

to proceed with a second shoulder surgery. Id. at 13.

On March 28, 2020, Petitioner underwent a second shoulder surgery including a

subacromial bursectomy and synovectomy. Ex. 4 at 58. Petitioner had a follow-up with

Dr. Knox on April 4, 2020, when she complained of pain and redness in her left shoulder.

Id. at 12. Dr. Knox prescribed doxycycline and performed an aspirate of her left shoulder

for culture. Id. On April 16, 2020, Dr. Knox notified Petitioner that her inflammatory screen

was negative but that based on her continued shoulder pain, he was concerned that she

was starting to develop early perioperative adhesive capsulitis. Id. at 11.

On April 22, 2020, Petitioner saw Dr. Wesley Cox, an orthopedist, complaining of

intense left arm pain. Dr. Cox’s notes mention the October 2018 flu vaccination and state

that Petitioner “was turning a patient and had increased pain.” Ex. 7 at 65. They further

state that Petitioner “began having nerve pain and [she] began dropping things,” that Dr.

Knox told her she had a bone spur with impingement, that following her first surgery she

felt better at week two but by three and a half weeks, when she was in PT, her biceps

muscle would knot up, that she had a cortisone injection with no relief, and that she had

redness in the shoulder which went away after Petitioner was prescribed Clindamycin for

one week. Id. Dr. Cox noted that “at least twice yearly I see patients with shoulder pain

following flu injections. The most common shoulder infection is an odd bug and is called

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cuti bacteria.” Id. Dr. Cox also noted a bulging disc at C5 as something that could cause

Petitioner’s symptoms. Id. Dr. Cox prescribed doxycycline and also recommended

Neurotonin, a nerve pain drug which could help rule out nerve irritation from a nerve block.

Id. at 66.

Petitioner underwent a third MRI on May 1, 2020. Ex. 4 at 41. On May 15, 2020,

Dr. Cox reviewed the MRI with Petitioner, indicating that her AC joint looked like it hurt

and that this “is the exact pattern we expect to see in ACJ arthritis.” Ex. 7 at 26.

On June 4, 2020, Petitioner underwent a third arthroscopic surgery by Dr. Cox,

which involved extensive debridement, subacromial decompression, and distal clavicle

excision for cultures. Ex. 17 at 39-41. Post-surgery, Dr. Cox diagnosed Petitioner with

acromioclavicular degenerative joint disease, type 1 SLAP lesion, capsular inflammation

most likely consistent with adhesive capsulitis, and rotator cuff impingement and bursitis

without evidence of rotator cuff tearing. Id.

Petitioner saw Dr. Cox on July 10, 2020, for a post-surgery appointment. She

complained of left shoulder pain but denied numbness or tingling in her left arm. Ex. 19

at 49-56. Petitioner attended eight PT sessions between July 17 and August 6, 2020, at

the end of which she was still reporting pain in her left shoulder. Ex. 18 at 8.

On August 25, 2020, Petitioner saw Dr. Cox with concerns about “systemic

infection due to tachycardia episodes.” Ex. 19 at 12. Dr. Cox did not think there was an

infection of Petitioner’s shoulder but that he thought the pain might be a result of thyroid

disease because “tacycardic goes hand in hand with thyroid disease and it can also go

hand in hand with a lot of other issues.” Id. at 13.

2. Affidavit Evidence

Petitioner has submitted five affidavits in support of her claim. The first affidavit is

from Petitioner and is dated August 7, 2020. Ex. 1. In this affidavit, Petitioner indicates

that she was not experiencing any left shoulder pain or loss of ROM at the time of her

October 1, 2018, flu vaccination. Id. at 1. She goes on to note that she “associated onset

of pain within 24-48 hours. Notably, I experienced an injection given higher than normal

that resulted in more than normal pain which persisted throughout the week while I was

not working as a night weekend nurse.” Id. at 1-2. She further notes that she “experienced

an aching and pain beyond the normal feeling after a vaccination, but I chose to hope it

would go away before I returned to work that weekend” and that “she noticed her pain

“particularly after returning to work and trying to perform my work duties, such as lifting

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patients.” Id. at 2. Petitioner notes that she despite the pain, she was not able to schedule

an appointment with her PCP until November 2018. Id.

Petitioner submitted a second affidavit, dated February 22, 2022. Ex. 23. She now

noted that her 2016 neck and left shoulder pain was the result of a neck strain and not

similar or associated with her left shoulder pain in 2018, that her left shoulder pain began

immediately after her flu vaccine within 24 hours, and that she did not originally think her

vaccination could cause such significant pain despite her occupation as a nurse. Id. at 1-

2. She goes on to further explain that “the comment about five days stemmed from

noticing it at work rather than just pain being present” and that she “did not hurt my

shoulder lifting a pediatric patient. It was only when I performed this normal job task that

the new shoulder pain I was experiencing after the vaccination became obvious and

debilitating at work.” Id.

Petitioner’s third affidavit is from her husband, Mr. Brad Hall, dated January 21,

2022. Ex. 20. Mr. Hall states that Petitioner “told me she got her flu shot and her arm and

shoulder were hurting bad” on October 1, 2018. Id. at 1. He further states that “I could

see a welp and thought it felt hot and seemed very high up on her shoulder. . . . She

asked me to massage it every day for weeks after the shot but never got better.” Id.

Petitioner’s fourth affidavit is from her daughter, Ms. Ashley Hall, dated January

24, 2022. Ex. 21. Ms. Hall states that Petitioner “always calls me on the way home from

work and Monday, October 1, 2018 was no different. Mom complained of having really

bad arm pain, she said more than a normal ache like usual, she felt the shot was given

too high on her arm.” Id. at 1. She goes on to note that Petitioner complained the rest of

the week of her arm pain although she “is not a complainer,” that as a nurse she “did not

feel like she needed to keep going to the doctor every month because it would get better

and it was crazy to think that a flu shot could cause her so much pain” and recounts how

Petitioner went to several different doctors concerning her symptoms. Id. at 1-2.

Petitioner’s fifth affidavit is from Ms. Sherry Opler, a coworker of Petitioner at St.

Jude Children’s Research Hospital, dated January 25, 2022. Ex. 22. Ms. Opler states that

she remembers Petitioner “complaining of her flu shot really hurting after receiving her

shot at work around 5:00 a.m. that Monday morning. . . . she showed me her arm and

where her shot was given which she felt was given a lot higher than normal.” Id. at 1. She

goes on to state that when Petitioner came to work that next weekend, she was “really

complaining about her arm still hurting and that she felt like the flu shot caused her pain

so bad that she could hardly move her arm.” Id. at 2. Ms. Opler also states that Petitioner

said to her “’I know it sounds crazy, but I really think the flu shot caused all the pain I am

having.’” Id. She finally notes that Petitioner complained of pain for over a year before

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seeking out orthopedic care “because everyone she complained to and said her arm hurt

after receiving a flu shot just blew her off.” Id.

III. Parties’ Respective Arguments

Petitioner argues that the medical records and affidavits clearly demonstrate that

she suffered a SIRVA injury following receipt of the flu vaccine on October 1, 2018. She

maintains that onset of his symptoms began within 48 hours of vaccination, that she

experienced associated decreased range of motion, and that her symptoms persisted for

longer than six months. Mot. at 1-2. Respondent has argued in reaction that Petitioner’s

claim fails because Petitioner fails to show by a preponderance of evidence that the onset

of her shoulder pain occurred within 48 hours of vaccination, and that the submitted

evidence does not reflect Petitioner suffered any range of motion loss, or that Petitioner’s

alleged injury lasted for longer than six months, and that the records reflect other

conditions or abnormalities that would explain her symptoms. Response at 9-13.

IV. Applicable Law

Before compensation can be awarded under the Vaccine Act, a petitioner must

demonstrate, by a preponderance of evidence, all matters required under Section

11(c)(1), including the factual circumstances surrounding her claim. Section 13(a)(1)(A).

In making this determination, the special master or court should consider the record as a

whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or

by medical opinion. Id.

To resolve factual issues, the special master must weigh the evidence presented,

which may include contemporaneous medical records and testimony. See Burns v. Sec'y

of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special

master must decide what weight to give evidence including oral testimony and

contemporaneous medical records). Contemporaneous medical records are presumed to

be accurate. See Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed.

Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a

petitioner may present testimony which is “consistent, clear, cogent, and compelling.”

Sanchez v. Sec'y of Health & Hum. Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed.

Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Hum. Servs., No. 90–

2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).

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In addition to requirements concerning the vaccination received, the duration and

severity of petitioner’s injury, and the lack of other award or settlement,3 a petitioner must

establish that she suffered an injury meeting the Table criteria, in which case causation

is presumed, or an injury shown to be caused-in-fact by the vaccination she received.

Section 11(c)(1)(C).

The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,

identifies the vaccines covered under the Program, the corresponding injuries, and the

time period in which the particular injuries must occur after vaccination. Section 14(a).

Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48

hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). The

Vaccine Injury Table’s qualifications and aids to interpretation (“QAI”) for SIRVA provide

as follows:

Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests

as shoulder pain and limited range of motion occurring after the

administration of a vaccine intended for intramuscular administration in the

upper arm. These symptoms are thought to occur as a result of unintended

injection of vaccine antigen or trauma from the needle into and around the

underlying bursa of the shoulder resulting in an inflammatory reaction.

SIRVA is caused by an injury to the musculoskeletal structures of the

shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological

injury and abnormalities on neurological examination or nerve conduction

studies (NCS) and/or electromyographic (EMG) studies would not support

SIRVA as a diagnosis (even if the condition causing the neurological

abnormality is not known). A vaccine recipient shall be considered to

have suffered SIRVA if such recipient manifests all of the following:

(i) No history of pain, inflammation or dysfunction of the affected shoulder

prior to intramuscular vaccine administration that would explain the alleged

signs, symptoms, examination findings, and/or diagnostic studies occurring

after vaccine injection;

(ii) Pain occurs within the specified time frame;

3 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered

either in the United States and its territories or in another geographical area but qualifying for a limited

exception; suffered the residual effects of her injury for more than six months, died from her injury, or

underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected

an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).

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(iii) Pain and reduced range of motion are limited to the shoulder in which

the intramuscular vaccine was administered; and

(iv) No other condition or abnormality is present that would explain the

patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,

brachial neuritis, mononeuropathies, or any other neuropathy).

42 C.F.R. § 100.3(c)(10)(emphasis added).

Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a

preponderance of the evidence, the matters required in the petition by Vaccine Act

Section 11(c)(1). A special master must consider, but is not bound by, any diagnosis,

conclusion, judgment, test result, report, or summary concerning the nature, causation,

and aggravation of petitioner’s injury or illness that is contained in a medical record.

Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy

evidence. The records contain information supplied to or by health professionals to

facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in

the balance, accuracy has an extra premium. These records are also generally

contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993

F.2d 1525, 1528 (Fed. Cir. 1993).

Accordingly, where medical records are clear, consistent, and complete, they

should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-

1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule

does not always apply. “Written records which are, themselves, inconsistent, should be

accorded less deference than those which are internally consistent.” Murphy v. Sec’y of

Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,

1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd

per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as

incorrect the presumption that medical records are accurate and complete as to all the

patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378,

1383 (Fed. Cir. 2021).

The United States Court of Federal Claims has outlined four possible explanations

for inconsistencies between contemporaneously created medical records and later

testimony: (1) a person’s failure to recount to the medical professional everything that

happened during the relevant time period; (2) the medical professional’s failure to

document everything reported to her or him; (3) a person’s faulty recollection of the events

when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did

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not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),

aff’d, 746 F.3d 1335 (Fed. Cir. 2014).

The Court has also said that medical records may be outweighed by testimony that

is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y

of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health

& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).

The credibility of the individual offering such fact testimony must also be determined.

Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley

v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).

A special master may find that the first symptom or manifestation of onset of an

injury occurred “within the time period described in the Vaccine Injury Table even though

the occurrence of such symptom or manifestation was not recorded or was incorrectly

recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may

be made only upon demonstration by a preponderance of the evidence that the onset [of

the injury] . . . did in fact occur within the time period described in the Vaccine Injury

Table.” Id.

The special master is obligated to fully consider and compare the medical records,

testimony, and all other “relevant and reliable evidence contained in the record.” La

Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.

Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within

the special master’s discretion to determine whether to afford greater weight to medical

records or to other evidence, such as oral testimony surrounding the events in question

that was given at a later date, provided that such determination is rational).

V. Analysis

The record preponderates against the finding that Petitioner experienced onset of

shoulder pain symptoms in the required 48-hour timeframe. In reaching this conclusion, I

have considered both the contemporaneous medical records and the testimony provided

by Petitioner and others in the submitted affidavits. At bottom, the two sets of information

stand in direct contradiction of each other.

The contemporaneous medical records reflect a consistent story from Petitioner -

in which she first noticed left shoulder pain approximately five days after vaccination,

when she was at work as a nurse and had to move a patient. In Petitioner’s first medical

visit post-vaccination, on November 6, 2018, Petitioner reported to her PCP that her left

shoulder pain began “about 5 days after flu shot in left arm.” Ex. 3 at 19. Her next checkup

at her PCP, on April 9, 2019, did not contain any mention of left arm pain other than a

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note under her past medical history that “Stomach pain sometimes refers to left shoulder.”

Id. at 15. Her PCP visit after that, on November 5, 2019, over one year after her flu

vaccination, again references left shoulder pain that “[s]tarted about 5 days after flu shot

in the left arm” and that Petitioner “does not think the flu shot caused the symptoms.” Id.

at 11. After a referral to an orthopedist, Dr. Knox, the medical records reflect that petitioner

indicated that while working as a nurse she “was lifting a patient when she noted the onset

of some pain soreness of her left shoulder.” Id. at 34.

Petitioner attempts to rebut the evidence of a five-day onset solely through affidavit

evidence. In her first affidavit, dated August 7, 2020, she states that “I associated onset

of pain within 24-48 hours. Notably, I experienced an injection given higher than normal

that resulted in more than normal pain which persisted through the week while I was not

working as a night weekend nurse.” Ex. 1, ¶ 4. She goes on to state that she noticed her

pain “particularly after returning to work and trying to perform my work duties, such as

lifting patients.” Id. ¶ 5. A second affidavit from Petitioner, dated February 22, 2022,

attempts to explain the five-day onset reflected in the medical records, stating that

because it was approximately five days after receiving the flu vaccination that she

returned to work, she was not aware of the extent of her pain, but that pain and discomfort

began immediately after the shot, within 24 hours. Ex. 23, ¶¶ 2-3. Three other affidavits,

from Petitioner’s husband, her daughter, and her co-worker, which were all taken in

January 2022, all reference a flu shot being administered too high into Petitioner’s left

arm. Ex. 20 at 1; Ex. 21 at 1; Ex. 22 at 1.

In this case, the contemporaneous medical records provide a more reliable

recitation of the facts than Petitioner’s affidavits, four of which were submitted after

Respondent contested the case through his Rule 4(c) Report. For example, Petitioner’s

co-worker, Ms. Sherry Opler, recounts that Petitioner told her that “’I know it sounds crazy,

but I really think the flu shot caused all the pain I am having.’” Ex. 22 at 1. But in her

November 5, 2019, visit with her PCP, Petitioner indicated that she “did not think the flu

shot caused the symptoms.” Ex. 3 at 11.

The affidavit submitted by Petitioner’s daughter, Ms. Ashley Hall, states that

Petitioner “complained of having really bad arm pain, she said more than a normal ache

like usual, she felt the shot was given too high on her arm.” Ex. 21, at 1. However,

Petitioner also submitted contemporaneous text messages between her and her daughter

into the record which do not substantiate as strong of a position. On October 3, 2018,

Petitioner indicated that the “flu shot [was] kicking my butt this year or maybe just working

all those long days.” Ex. 24 at 2. On October 7, 2018, six days after vaccination, she

stated that her “shoulder is still killing [her].” Id. at 3. On October 30, 2018, approximately

one month after vaccination, she stated that she “lifted [a] coke container and now my

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shoulder is hurting more” but “it’ll be alright.” Id. at 4. Finally, on November 6, 2018,

Petitioner indicated that she had a doctor’s appointment in which they drew blood and x-

rayed her arm. Id. at 5. In response to a query from her daughter as to if they were looking

at her shoulder, Petitioner replied “[y]es my shoulder, definitely have tendinitis to 2

tendons, possible tear, did xray to make sure I didn’t have a bone spur causing it. Labs

for thyroid. Vitamin d check.” Id. These statements are ambiguous at best as to whether

Petitioner experienced onset of shoulder pain within 48 hours, or whether Petitioner even

associated her left shoulder pain with her flu vaccination.

Because onset cannot be preponderantly established, no Table SIRVA can be

maintained. This does not preclude a claim that Petitioner still experienced some form of

vaccine-related injury, under the standards applicable to a causation-in-fact claim. I note,

however, that the existing record is not particularly supportive of such a claim. For

example, none of Petitioner’s treating physicians appeared to correlate her October 1,

2018 vaccination with her left shoulder pain. Prior to her first shoulder surgery, Petitioner

was diagnosed with chronic impingement syndrome due to acromioclavicular arthritis. Ex

4 at 23. Issues following this surgery were determined to be “postoperative in nature” and

Petitioner’s treating physicians suspected both infection and nerve issues based on her

symptoms. One of Petitioner’s treating orthopedists, Dr. Cox, noted that her post-surgery

complications were “the exact pattern we expect to see in ACJ arthritis.” Ex. 7 at 26. And

the long treatment gaps also undermine vaccine causation. Petitioner should keep this in

mind if she hopes to continue this matter.

VI. Conclusion

Petitioner has not provided preponderant evidence to establish that she suffered

onset of symptoms within 48 hours as required to establish a Table SIRVA case.

Accordingly, Petitioner’s Table SIRVA claim is dismissed. The parties shall next engage

in a status conference, to evaluate whether a non-Table claim would be viable.

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

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