Opinion

Belker-Frechette v. Secretary of Health and Human Services

Court
United States Court of Federal Claims
Filed
Jan 6, 2025
Status
Unpublished
On the bench
Brian H. Corcoran
Cited by
0 cases
Authority
More cited than 33.5%

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 21-2043V

DEBORAH BELKER-FRECHETTE,

Chief Special Master Corcoran

Petitioner,

Filed: December 6, 2024

v.

SECRETARY OF HEALTH AND

HUMAN SERVICES,

Respondent.

David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.

Sarah Black Rifkin, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT 1

On October 19, 2021, Deborah Belker-Frechette 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 alleges that she suffered a left shoulder injury related to

vaccine administration (“SIRVA”), a defined Table injury, due to an influenza (“flu”)

vaccine she received on October 5, 2020. Petition at 1, ¶¶ 3, 16.

Respondent disputes Petitioner has established pain onset timing consistent with

the requirements of a Table SIRVA. For the reasons discussed below, I find that the onset

1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made

publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or

at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government

Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government

Services). This means the Ruling 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 (2018).

of Petitioner’s left shoulder pain occurred within 48 hours of vaccination, and that she has

satisfied the other requirements of a compensable Table SIRVA injury. Petitioner is thus

entitled to compensation under the Vaccine Act.

I. Relevant Procedural History

After several months of records-filing, the case was activated and assigned to the

“Special Processing Unit” (OSM’s adjudicatory system for resolution of cases deemed

likely to settle). ECF No. 13. Because the vaccination record did not indicate the site of

administration (Exhibit 1 at 14), I allowed Petitioner the opportunity to present additional

situs evidence and briefing. ECF No. 16; see Exhibits 10-12, ECF No. 18; Petitioner’s

Motion for Ruling on the Record Regarding Vaccine Situs, ECF No. 19. On April 6, 2023,

I issued a fact ruling determining that the flu vaccine was most likely administered in

Petitioner’s left deltoid, as alleged. ECF No. 22.

The parties thereafter attempted to settle the claim, but reached an impasse in

August 2023. Status Report, ECF No. 28. They subsequently filed additional documents

presenting their arguments related to entitlement. ECF Nos. 29-32. In his last filing,

Respondent confirmed that his only objection to compensation related the onset Table

requirement. Respondent’s Response to Petitioner’s Motion for Ruling on the Record at

5, 5 n.6 (stating “Respondent does not contest that [P]etitioner meets the remaining QAI

for SIRVA”). The issue of entitlement is now ripe for adjudication. 3

II. Finding of Fact Regarding Onset

At issue is whether Petitioner’s first symptom or manifestation of onset after

vaccine administration (specifically pain) occurred within 48 hours as set forth in the

Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table

SIRVA. 42 C.F.R. § 100.3(a)XIV.B. (influenza vaccination); 42 C.F.R. § 100.3(c)(10)(ii)

(required onset for pain listed in the QAI).

A. Authority

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,

3 In her last filing, Petitioner also addressed the question of compensation, stating that she seeks

$72,000.00 for her pain and suffering. ECF No. 32. Because all prior filings addressed only the issue of

entitlement, I will allow the parties to provide further briefing before determining the appropriate pain and

suffering award in this case. I will, however, briefly discuss my initial assessment regarding damages in this

ruling. See infra Section IV.

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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

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

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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).

B. Analysis

I make the following onset finding after a complete review of the record to include

all medical records, affidavits or declarations, and additional evidence filed. As the record

shows:

• Approximately eleven months before receiving the 2020 flu vaccine alleged

as causal (in late October 2019), Petitioner visited her current primary care

provider (“PCP”) expressing a desire to discuss recent events and to obtain

a “full baseline check.” Exhibit 1 at 15. It was noted that Petitioner “does not

seek out medical care routinely” (id.), and the record indicates the visit was

“to establish care” (id. at 18).

• During this PCP visit, Petitioner described a recent episode of mid-chest

discomfort and mild numbness in her left arm (characterized as a chronic

condition) after loading 600 pounds of corn into her truck. Exhibit 1 at 15.

When listing her past symptoms over the last one to two years, she reported

an earlier episode of chest discomfort, “intermittent neck pain, numbness of

[her] upper left arm at times,” and itching in her right armpit. Id. The PCP

assessed Petitioner as having noncardiac-related chest pain, prescribed

medication for acid reflux, and administered a flu vaccine. Id. at 9 (list of

immunizations), 9-13 (testing), 17-18 (PCP’s assessment and instructions).

• On October 5, 2020, Petitioner (then 62 years old) visited her PCP clinic for

administration of the flu vaccine alleged as causal, and received it at that

time. Exhibit 1 at 14; see id. at 9 (list of immunizations).

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• On November 13th, Petitioner returned to her PCP complaining of left

shoulder pain and limited range of motion (“ROM”) which she attributed to

the vaccination she received six weeks earlier. 4 Exhibit 1 at 19. She

reported that her pain began “[f]airly abruptly” after vaccination, and that

she believed the vaccine had been administered “higher than usual.” Id.

Stating that she preferred to avoid medications, Petitioner described

difficulty sleeping, lifting her arm overhead or behind her back, and one

episode of left shoulder numbness. Id.

• Encouraging Petitioner to apply ice and heat and to take over the counter

pain medication, the PCP prescribed topical gel and physical therapy (“PT”).

Exhibit 1 at 21. Although he noted that such injuries are rare, the PCP

opined Petitioner was suffering from a “[p]possible shoulder injury related

to vaccination.” Id.

• At her initial PT evaluation, Petitioner again reported left shoulder pain and

limited ROM post-vaccination. Exhibit 8 at 10. Specially, she characterized

her pain onset as “[s]udden” (id. at 9), providing an onset date of October

5, 2020 (id. at 6) - the date of her vaccination. Describing her pain as

constant, Petitioner estimated her severity was initially four out of ten, but

lessened to two out of ten after four weeks. Id. at 7.

• Petitioner continued to improve over the course of nine PT sessions in

December 2020 to January 2021, but was directed to return to her PCP for

further diagnostic testing after experiencing a few days of increasing pain

prior to her last session on January 4th. Exhibit 8 at 16-17. At that time, it

was noted that her pain ranged from two to seven. Id. at 16.

• When seen by her PCP the next day (January 5th), Petitioner again reported

left shoulder pain after receiving a flu vaccine that was administered too

high. Exhibit 1 at 22. In this record, it was noted that she “[c]orrelates onset

to after receiving seasonal influenza vaccination.” Id. After Petitioner shared

a reluctance to use the prescribed gel due to a concern about its potential

side effects (id.) and declined a steroid injection, the PCP referred her to an

orthopedist and suggested acupuncture, if desired. Id. at 24.

• Petitioner was discharged from PT without receiving further treatment on

February 11, 2021. Exhibit 8 at 8.

4 Petitioner also described ongoing difficulties related to acid reflux. Exhibit 1 at 19-21.

5

• At her first acupuncture session on January 12th, Petitioner again reported

left shoulder pain after receiving a flu vaccine three months earlier. Exhibit

3 at 1.

• By her fourth acupuncture session on January 22nd , Petitioner reported 50

percent improvement, even after shoveling snow. Exhibit 3 at 3. However,

her pain had increased by her next session on January 24 th, a change

attributed to the use of a massage gun. Id. at 4.

• On March 10th, Petitioner began attending massage therapy. Exhibit 4 at 5.

She again reported that her left shoulder pain was due to the vaccine she

received, characterizing her injury as a “SIRVA – shoulder injury due to

vaccine administration.” Id. at 6.

• During her next PCP appointment (held telephonically on March 24th),

Petitioner reported “[s]ome improvement in ROM but no change in pain.”

Exhibit 1 at 25. Noting that she had tried PT, Petitioner indicated she was

attending acupuncture and had started massage therapy and yoga. She

again declined a steroid injection, indicating she was “[t]errified of another

injection.” Id. The PCP ordered an MRI and prescribed pain medication and

a muscle relaxant. Exhibit 1 at 26-27.

• When undergoing an MRI on April 8th, Petitioner again reported “[s]houlder

pain following vaccination fall 2020.” Exhibit 1 at 7. The MRI revealed “mild

tendinosis of the supraspinatus and subscapularis tendons, [n]o rotator cuff

tear, . . . [g]lenohumeral joint capsulitis, . . . [m]ild tendinosis of the long

head biceps tendon, . . . [and] [m]ild degenerative arthrosis of the AC joint .

. . [but] [n]o subacromial-subdeltoid bursal fluid.” Id. at 7-8.

• Petitioner continued to attend acupuncture sessions throughout April, May,

and early June 2021. Exhibit 5 at 3-22. She attended massage therapy until

November 2021. Exhibit 6 at 4, 8-10.

• In her initial signed declaration, Petitioner described left shoulder pain onset

immediately upon vaccination. Exhibit 2 at ¶ 8. She indicated that she

believed the vaccine was given “much higher than any of [her] previous flu

shots.” Id.

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• In her supplemental signed declaration, Petitioner maintains that the left

shoulder pain she experienced after vaccination was different than her 2019

soreness. Exhibit 10 at ¶¶ 5-7, 9.

• In their signed statements, Petitioner’s friends recalling observations and

communications from Petitioner which support her claims of immediate pain

onset. Exhibits 11 at ¶¶ 5-6; Exhibit 12 at ¶ 5.

The above medical records establish that when seeking treatment, Petitioner

consistently described left shoulder pain that she attributed to a flu vaccine she received

on October 5, 2020. Characterizing her pain as sudden and abrupt on at least one

occasion, she provided the date of vaccination as the onset date for her pain. Petitioner

provided these histories during the year following vaccination to her PCP, physical

therapist, acupuncturist, massage therapist, and the technician performing her April 2021

MRI. And in both medical records and her first signed declaration, she described the flu

vaccine as improperly administered – given too high in her left deltoid.

While originating from Petitioner, these statements are also set forth in

contemporaneous records, and should therefore be afforded greater weight than any

subsequent assertion or witness statement. The Federal Circuit has stated that “[m]edical

records, in general, warrant consideration as trustworthy evidence . . . [as they] contain

information supplied to or by health professionals to facilitate diagnosis and treatment of

medical conditions.” Cucuras, 993 F.2d at 1528 (emphasis added). Thus, the Circuit has

instructed that greater weight should be accorded to this class of information, even when

the record in question simply memorializes what the petitioner said at the time.

In addition, there is a dearth of evidence supporting a different pain onset. I thus

determine, based on the entire record, that Petitioner has provided preponderant

evidence establishing that her pain occurred within 48 hours of vaccination.

III. Additional Requirements for Entitlement

A. Legal Standards

In addition to requirements concerning the vaccination received, the pain onset

(discussed above in Section II), symptoms duration, and the lack of other award or

settlement,5 a petitioner must establish that she suffered an injury meeting the Table

5 In summary, a petitioner must establish that he 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 his injury for more than six months, died from his injury, or

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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 a flu vaccine. 42 C.F. R. § 100.3(a)(VIX)(B). The criteria

establishing a SIRVA under the accompanying QAI are 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;

(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).

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 Section 11(c)(1)(A)(B)(D)(E).

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42 C.F.R. § 100.3(c)(10).

B. Analysis

Respondent has stated no further objections to compensation, and I find Petitioner

has otherwise satisfied all criteria for a Table SIRVA injury following receipt of the flu

vaccine. Although Petitioner experienced several instances of itching, numbness, and

pain in her upper arm, as well as chest and neck, these episodes do prevent Petition from

satisfying the QAI requirements related to a prior condition or alternative cause, especially

considering Respondent’s lack of objection. See 42 C.F.R. § 100.3(c)(10)(i), (iv) (first and

fourth QAI criteria). And Petitioner exhibited pain and limitations in ROM solely in her left,

injured shoulder. E.g., Exhibit 1 at 20, 23 (PCP visits); Exhibit 6 at 8-10 (acupuncture

records); Exhibit 8 at 5, 8, 16-17 (PT records); see 42 C.F.R. § 100.3(c)(10)(iii) (third QAI

criterion).

As I have determined in this ruling, the record supports a finding that Petitioner

suffered pain within 48 hours of vaccination. See supra Section II.B.; 42 C.F.R. §

100.3(c)(10)(ii) (second QAI criterion). Additionally, the medical records show Petitioner

suffered the residual effects of her injury for more than six-months. Exhibit 1 at 7-8 (MRI

performed on March 8, 2021), 25-27 (March 24, 2021 PCP vists); see Section

11(c)(1)(D)(i) (six-month severity requirement). And the vaccine record shows Petitioner

received the flu vaccine at her PCP’s clinic in Chanhassen, Minnesota. Exhibit 1 at 9, 14;

see Section 11(c)(1)(A) (requiring receipt of a covered vaccine); Section 11(c)(1)(B)(i)

(requiring administration within the United States or its territories). Furthermore, there is

no evidence that Petitioner has collected a civil award for his injury. See Section

11(c)(1)(E) (lack of prior civil award). Thus, Petitioner has satisfied all requirements for

entitlement under the Vaccine Act.

IV. Appropriate Amount of Compensation

Although I have found Petitioner entitled to compensation, I do not expect the

amount awarded for Petitioner’s past pain and suffering to be significant. Throughout the

medical records, Petitioner reported moderate pain levels (from two to seven). And she

did not seek treatment initially until more than a month post-vaccination. Although her

pain increased again in early January 2021, Petitioner received some relief from PT

sessions in December 2020. In 2021, Petitioner declined two offers of a steroid injection

from her PCP, preferring to treat her symptoms using acupuncture and massage therapy.

And there is some evidence in these records showing her symptoms were aggravated by

her continued physical activity, and included pain in other areas that appear unrelated to

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her SIRVA. See, e.g., Exhibit 5 at 3-4 (describing back and arm pain after weeding and

muscle tension primarily in her trapezius). In attempting to resolve damages, the parties

should keep in mind that this does not appear to be a case in which a significant pain and

suffering award is warranted.

Conclusion

Based on the entire record in this case, I find that Petitioner has provided

preponderant evidence satisfying all requirements for a Table SIRVA. Petitioner is

entitled to compensation in this case.

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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