Opinion

Kent v. Secretary of Health and Human Services

Court: United States Court of Federal Claims
Filed: Apr 10, 2019
Status: Unpublished
On the bench: Nora Beth Dorsey
Cited by: 0 cases
Authority: More cited than 7.4%

explaining that a special master must decide what weight to give evidence including oral testimony and contemporaneous medical records

How later courts described this case

explaining that a special master must decide what weight to give evidence including oral testimony and contemporaneous medical records
medical records are generally trustworthy evidence

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-73V

Filed: February 12, 2019

Unpublished

****************************

DEBORAH KENT, *

Petitioner, * Ruling on Entitlement; Causation-In-

* Fact; Influenza (Flu) Vaccine;

v. * Shoulder Injury Related to

* Administration (SIRVA); Vaccine

SECRETARY OF HEALTH * Findings of Fact; Onset of Petitioner’s

AND HUMAN SERVICES, * Shoulder Pain; Special Processing Unit

* (SPU)

Respondent. *

****************************

Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.

Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.

FINDINGS OF FACT AND RULING ON ENTITLEMENT1

Dorsey, Chief Special Master:

On January 17, 2017, Deborah Kent (“petitioner”) filed a petition for

compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.

§300aa-10, et seq.,2 (the “Vaccine Act” or “Program”) for injuries, including left shoulder

adhesive capsulitis and a supraspinatus tendon tear, caused in fact by the influenza

vaccination she received on October 2, 2015. Petition at 1, ¶¶ 2, 14 (ECF No. 1). The

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

1The undersigned intends to post this ruling on the United States Court of Federal Claims' website. 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, the undersigned

agrees that the identified material fits within this definition, the undersigned will redact such material from

public access. Because this unpublished ruling contains a reasoned explanation for the action in this

case, undersigned is 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).

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

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

300aa (2012).

During a fact hearing held on June 26, 2018 in Grand Rapids, Michigan, the

undersigned made factual findings regarding petitioner’s prior condition, the onset of her

pain, scope of her pain and limited range of motion, and lack of other condition or

abnormality. Additionally, she discussed the requirements for causation, finding that

there is preponderant evidence of causation in this case. Accordingly, the undersigned

finds that petitioner is entitled to compensation.

I. Procedural History

Along with the petition, petitioner filed many of the medical records required by

the Vaccine Act. See Exhibits 1-6; see also § 11(c)(2) (for a description of the required

medical records). A few weeks later, petitioner filed additional medical records and a

statement indicating all records had been filed. See Exhibit 7, filed Jan. 30, 2017 (ECF

No. 6); Statement of Completion, filed Jan. 30, 2017 (ECF No. 7). An initial status

conference was scheduled for March 7, 2017.

During the call, the staff attorney managing this SPU case mentioned several

issues which required further clarification: 1) a three-month delay in treatment of

petitioner’s shoulder injuries; 2) the lack of any discussion regarding petitioner’s

shoulder injury when undergoing a hearing check and being treated for a rash during

this three-month period; and 3) the fact that petitioner had overlapping medical records

from different providers. See Order, issued Mar. 10, 2017, at 1 (ECF No. 9). She

suggested that a detailed affidavit from petitioner providing additional information

regarding these issues would be helpful. Id. at 1-2. Additionally, the staff attorney

noted that some of the medical records filed were copies contained in the medical

records from other providers. She indicated petitioner should obtain all medical records

directly from the providers seen by petitioner. Id. at 1.

On April 20, 2017, petitioner’s current counsel, Amy Senerth, entered her

appearance in this case.3 (ECF No. 10). During May and June 2017, petitioner filed

her additional medical records and detailed affidavit. See Exhibits 8-13 (ECF Nos. 11,

13). On July 7, 2017, respondent filed a status report indicating “respondent [wa]s

interested in pursuing a litigative risk settlement in this case.” (ECF No. 14).

Over the subsequent four months, the parties engaged in settlement discussions.

See Status Reports, filed Aug. 21 and Oct. 6, 2017 (ECF Nos. 16, 19). On November 9,

2017, petitioner filed a status report indicating the parties had reached an impasse in

their settlement discussions and that respondent wished to file a Rule 4 report by

December 27, 2017.

In his Rule 4 report, respondent argued that compensation was not appropriate in

this case. Respondent’s Rule 4 Report (“Rule 4 Report”) filed Dec. 27, 2017, at 6 (ECF

No. 23). While noting that petitioner did not allege a Table Injury and observing that

petitioner’s case was filed prior to the addition of shoulder injury related to vaccine

3For the first four months of this case, petitioner was represented by C. Clark Hodgson, III, another

attorney at the law firm of Muller Brazil, LLP.

administration (“SIRVA”) to the Vaccine Table,4 respondent maintained that the Table’s

Qualification and Aids to Interpretation (“QAI”) for SIRVA are instructive in this case.

The QAI for SIRVAs states:

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).

42 C.F.R. § 100.3(c)(10) (2017). Respondent asserted that the onset of petitioner’s

pain “was not clearly within forty-eight hours.” Rule 4 Report at 6. While acknowledging

“the physicians who evaluated petitioner for her shoulder pain noted the temporal

association between flu shot and the shoulder pain,” respondent stressed that

petitioner’s “orthopedist specifically noted that the flu shot did not cause the pain.” Id.

Respondent claimed petitioner failed to establish that she suffered a SIRVA within 48

hours of vaccination and thus, “has failed to meet her evidentiary burden.” Id. The

4Effective for petitions filed beginning on March 21, 2017, SIRVA is an injury listed on the Table. See

National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, Final Rule, 82

Fed. Reg. 6294 (Jan. 19, 2017); National Vaccine Injury Compensation Program: Revisions to the

Vaccine Injury Table, Delay of Effective Date, 82 Fed. Reg. 11321 (Feb. 22, 2017) (delaying the effective

date of the final rule until March 21, 2017).

June 26, 2018 fact hearing was scheduled to address whether the onset of petitioner’s

pain occurred within 48 hours of vaccination.

Following the hearing, petitioner filed updated medical records (see Exhibit 16,

filed Sept. 17, 2018 (ECF No. 31)) and two articles, one of which was discussed by the

undersigned during the hearing, and petitioner’s Medicaid lien information (see Exhibits

17-19,5 filed Oct. 4, 2018 (ECF No. 32)). On January 29, 2019, the OSM staff attorney

managing this SPU case contacted the parties to ask if they wished to supplement the

record before the undersigned ruled on entitlement. See Informal Remark, dated Feb.

12, 2019. Both replied in the negative.

The matter of entitlement is now ripe for adjudication.

II. Factual History

During most of 2014, petitioner received her primary medical care from the Hart

Family Medicine Center (“the Hart Center”), part of the Mercy Health Physician

Partners. See Exhibit 2 at 53-88. From late 2014 through mid-July 2015, petitioner was

seen on several occasions at Pentwater Family Medicine (see exhibit 4 at 7-56, 64-71).

The medical records from these providers indicate that prior to vaccination, petitioner

suffered occasional vertigo, routine illnesses, and common conditions. There is no

mention of any shoulder issues in these records.

On October 2, 2015, petitioner transferred back to the Hart Center (referred to

hereinafter as petitioner’s primary care provider (“PCP”)). See Exhibit 2 at 92. At this

visit for a comprehensive physical, she received the vaccination alleged as causal. See

id. at 90-95. The vaccination was administered intramuscularly in petitioner’s left upper

arm. See Exhibit 1; Exhibit 2 at 95.

A few days after vaccination, on October 5, 2015, petitioner followed up by

telephone regarding the insurance coverage for the calcium supplement she was taking.

See Exhibit 2 at 94 (indicating follow-up would occur), 96 (telephone call from petitioner

indicating the supplement would be covered). On October 6, 2015, she visited the lab

to have blood drawn for testing. See id. at 97-98. Petitioner faxed her completed

Health Risk Assessment on October 12, 2015. See id. at 99-103.

On December 1, 2015, petitioner called her PCP regarding a referral to get her

hearing checked. See Exhibit 2 at 104. She was seen on December 7, 2015, and

referred to ear, nose, and throat. See id. at 105-07. There is no mention of shoulder

5These articles are S. Atanasoff et al., Shoulder injury related to vaccine administration (SIRVA), 28

Vaccine 8049 (2010), filed as Exhibit 17 (the one discussed by the undersigned) and M. Bodor and E.

Montalvo, Vaccination Related Shoulder Dysfunction, 25 Vaccine 585 (2007), filed as Exhibit 18.

Petitioner’s Medicaid lien information was filed as Exhibit 19.

pain at this visit, and under the musculoskeletal portion of the physical examination

section, it is noted only that petitioner’s gait was normal.6 See id. at 106.

On January 4, 2016, petitioner was seen by her PCP, complaining of left upper

arm pain which began when she received the influenza vaccination. See Exhibit 12 at

1. She questioned whether the nurse had hit a bone during administration or the needle

could be stuck in her arm. She described the pain as achy, like a toothache, and

denied any neck pain, numbness, or tingling. See id. Upon examination, Jennifer Tate,

PA,7 observed limited range of motion (“ROM”) and tenderness below the deltoid, but

no shoulder swelling or tenderness. See Exhibit 12 at 2. Petitioner was sent for x-rays,

performed the next day, which showed no fracture or other abnormality. See id. at 2-3.

On January 11, 2016, petitioner called her PCP for the results of her x-rays. See

Exhibit 2 at 110. After being informed they were normal, petitioner was referred to

orthopedics and an MRI was ordered.8 See id. at 110-11. Conducted on January 14,

2016, the MRI showed “[p]rominent tendinosis in her supraspinatus and infraspinatus

tendons” and “a small full-thickness tear in the lateral supraspinatus tendon.” Exhibit 3

at 1. In light of these findings, petitioner’s PCP worked diligently from January 18

through 25, to obtain an orthopedic appointment earlier than the one initially scheduled

for August 2016.9 See Exhibit 2 at 111-12. On January 25, 2016, an appointment was

procured with a different orthopedist for the end of February 2016. Id.

During this time, on January 20, 2016, petitioner visited her PCP for a rash which

began approximately two months earlier. See id. at 113. Petitioner attributed the rash

to nerves, and a topical cream was prescribed. See id. at 114. During this visit, it was

noted that petitioner was in no acute distress. Id. at 113. Under the musculoskeletal

portion of the physical examination, it was reported only that petitioner’s gait was

normal. Id. at 114.

6 This notation is found throughout the medical records from petitioner’s PCP, usually accompanied by an

additional notation that petitioner’s digits/nails did not show “clubbing, cyanosis, inflammation, or

ischemia.” See, e.g., Exhibit 2 at 70, 94. In this case, only the notation regarding petitioner’s gait was

included. See id. at 106.

7When petitioner visited her PCP, she was usually treated by Ms. Tate, who is a physician’s assistant.

See, e.g., Exhibit 2 at 92 (listing Jennifer Tate as petitioner’s provider).

8 These two options were initially presented to petitioner as alternatives, with petitioner choosing a referral

to orthopedics. See Exhibit 2 at 110. When petitioner was unable to get an appointment until August

2016, an MRI was ordered. Id. at 111.

9Because Petitioner was a Medicaid recipient, her PCP encountered difficulty getting her an orthopedic

appointment in Kent county.

Petitioner was seen by Randolph Grierson, DO,10 for left shoulder pain on

February 29, 2016. See Exhibit 11 at 2-11; see also Exhibit 2 at 18-21 (copy of record

sent from Dr. Grierson to Jennifer Tate, PA). At this visit, petitioner reported that her left

shoulder pain began in October after receiving an influenza vaccination. She further

reported that the injection was painful and that she had no left shoulder pain or

weakness prior to the injection. Describing her pain as aching, she rated its severity as

an eight out of ten. See id. at 8. Examining petitioner, Dr. Grierson observed

“profoundly limited active and passive motion of the left shoulder with pain.” Id. at 10.

After reviewing petitioner’s MRI, Dr. Grierson expressed his belief that “the painful

injection did not cause the rotator cuff tear [which] was present before the injection,” but

described this finding as “incidental.” Id. at 11. Regarding the cause of petitioner’s

pain,11 Dr. Grierson concluded it “comes from an adhesive capsulitis” and indicated that

her pain should subside with formal physical therapy (“PT”). Id. He added that other

treatments, such as injections, manipulation under anesthesia, and surgery, could be

considered if PT was unsuccessful. Id.

On March 8, 2016, petitioner began formal PT at Lakeside Comprehensive

Rehabilitation (“Lakeshore Rehab”). See Exhibit 8 at 1-4 (initial evaluation). Petitioner’s

pain was depicted as occurring five months earlier (id. at 3), with onset listed as October

2015 (id. at 1). During examination, “[s]evere pain [was] noted with all shoulder ROM.”

Id. at 2. Petitioner’s left deltoid pain was described as “consistent with supraspinatus

pain referral pattern.” Id. Petitioner reported difficulty when lifting, sleeping, and

performing overhead and recreational activities. Id. at 3. Petitioner was assessed as

“motivated with good potential to reach goals,” but it was noted that she would be

moving to another area of Michigan in three weeks. Id.

Petitioner attended seven PT sessions at Lakeshore Rehab from March 9

through 28. See Exhibit 8 at 5-18 (in reverse order). During this time, her pain

improved from a level of three out of ten prior to PT and ten out of ten after PT to a prior

level of one out of ten and post-level of six out of ten. Compare id. at 15 with id. at 5.

She reported that her stretching was becoming easier (id. at 11) and that she was able

to dress with greater ease (id. at 7). At her last session, on March 28, 2016, it was

reported that petitioner’s PT would be suspended while she was out of town. Id. at 5.

During February and March 2016, petitioner was seen at her PCP on three

occasions, complaining of dry eyes, a rash, vaginitis, cough, and sore throat. See

Exhibit 2 at 22-33. In the records from these visits under the reviewed problems

section, it is noted that petitioner suffered from a “[d]isorder of bone and cartilage” with

onset listed as October 2, 2015. Id. at 22, 25, 28. Presumably, this entry is referencing

petitioner left shoulder condition. There is no further mention of petitioner’s left shoulder

10 Dr. Grierson is an orthopedic surgeon in Ludington, Michigan. See

https://www.healthgrades.com/physician/dr-randolph-grierson-2frqm (last visited on Dec. 27, 2018). In a

later record, he is described as an orthopedic surgeon. See Exhibit 10 at 5.

11 The distinction between petitioner’s rotator cuff tear and left shoulder pain is discussed in more detail

later in this ruling. See infra Section V.B.

pain, and the section titled review of systems (ROS) does not include a subsection for

the musculoskeletal system. Id. at 23-24, 27, 30-31.

After petitioner moved closer to Grand Rapids, she resumed PT at a new facility,

Northern Physical Therapy Services (“Northern PT”). See Exhibit 6. Her initial

evaluation indicated she was referred by Jennifer Tate, PA. Exhibit 6 at 53. At this first

visit, petitioner described her left shoulder pain as a “sharp pain, after flu shot, [which]

never went away,” rating its severity as between four and seven. Id. She shared the

results of her x-rays and MRI and indicated “Dr. Greer[12] called it frozen shoulder d/t

disuse.” Id. The evaluation lists petitioner’s date of injury as November 30, 2015, but

the origin of that date is not clear. Under past medical history, the record includes a

notation that “[t]he patient relates this condition began on: 11-01-15.” Id. The physical

therapist who evaluated petitioner, Erin Willett, DPT,13 assessed petitioner’s tolerance

during evaluation and rehabilitation potential as good. Id. at 57. She recommended

twice weekly sessions for six weeks. Id.

From April 14 through June 9, 2016, petitioner attended 16 PT sessions at

Northern PT. At her last session on June 9, 2016, she rated her level of pain as three

out of ten and described her pain as intermittent, occurring primarily when she reached

behind her back or out to the side. Exhibit 6 at 3. At her June 7, 2016 session,

petitioner reported she would be seeing an orthopedist specialist, Dr. Howard, the

following week. Id. at 8. Petitioner was discharged from PT on July 19, 2016. Id. at 1.

Noting that petitioner’s last visit was on June 9, 2016, the record indicates staff spoke to

petitioner “who stated she no longer needs PT.” Id. The record further indicates

petitioner met approximately one-third of her goals (four out of twelve). Id. at 1-2.

On May 12, 2016, petitioner visited Grand Valley Health Plan for a health

assessment. See Exhibit 7 at 16-20. In this record, it is noted that petitioner

experienced a left rotator cuff tear in October 2015, for which she is undergoing PT. Id.

at 16. It appears that petitioner had switched to this clinic for her primary care, as she

was also seen in June 2016 for a headache (see id. at 12-15), in July 2016 for a spider

bite (see id. at 7-11), and in September 2016 for a skin lesion (see id. at 4-6).

On June 14, 2016, petitioner was seen at a new PT facility, Spectrum Health

Rehab. See Exhibit 9 at 11-12, 16-17 (questionnaire completed by petitioner); 25-27

(record from visit). The record from this visit indicates that petitioner reported that her

left shoulder pain began in November 2015, after she received the influenza

vaccination. Id. at 25. It was noted that petitioner’s pain, rated at a level of three to

seven on a scale of ten, limited her activities such as sleeping, lifting, grooming,

dressing, and performing yardwork. Id. She was observed to have “reduced shoulder

ROM, strength and posture deficits as might be expected with adhesive capsulitis.” Id.

at 26. Petitioner reported that she previously had attended PT and had made good

progress. Id. at 25-26. Petitioner expressed her desire to be able to lift her grandson

12 Presumably, Dr. Greer is meant to be Dr. Grierson.

13 DPT stands for Doctorate of Physical Therapy.

and use her arm normally. Id. at 26. It was noted that she should benefit from

additional PT, and twice weekly sessions for four to six weeks was recommended. Id.

at 26-27.

It appears petitioner’s first visit to Dr. Howard, the orthopedist mentioned during

an earlier PT session, occurred on June 22, 2016. See Exhibit 10 at 2-29. At that visit,

petitioner reported that her shoulder pain occurred suddenly and was related to her

influenza vaccination. Id. at 5. She described her pain as located in the lateral upper

arm, mild and stabbing, and “aggravated by flexing or extending the shoulder, lifting,

lying on the affected side, and overhead activity.” Id. Petitioner reported that she had

undergone an MRI, been evaluated by an orthopedic surgeon and her PCP, and

participated in 26 sessions of PT. Id. at 5-6. An evaluation of petitioner’s shoulder

revealed tenderness, limited ROM, and normal strength. Id. at 7. Petitioner shared her

belief that “her shoulder [wa]s gradually improving over the last six months because of

the consistent physical therapy she had been receiving” and expressed her lack of

interest in a cortisone injection or surgery. Id. at 8. Dr. Howard cautioned that it often

takes a long time to recover from adhesive capsulitis. He ordered additional PT. Id.

Between June 14 and August 4, 2016, petitioner attended 8 PT sessions at

Spectrum Health Rehab. See Exhibit 9 at 56. On August 4, 2016, she indicated her

level of pain had decreased, rating the severity between zero and seven. She added

that she was able to do more, but continued to have difficulty reaching overhead,

especially when lifting heavier objects, and behind her back. Id. Petitioner was

assessed as showing improvement in her ROM, strength, and ability to perform certain

activities. Id. at 57. It was noted that petitioner had improved her ROM by between 10

to 15 degrees (id. at 58), but some limitation was still observed (id. at 57, ranking ROM

at four out of five). Petitioner had partially met her goal of being able to lift her grandson

to eye level without pain. Id. at 58.

III. Legal Standard for Entitlement

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). § 13(a)(1)(A). In making this determination, the special master or court should

consider the record as a whole. § 13(a)(1). Petitioner’s allegations must be supported

by medical records or by medical opinion. Id.

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

severity of petitioner’s injury, and the lack of other award or settlement,14 a petitioner

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

14 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).

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

received. § 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. § 14(a).

Because this petitioner’s claim predates the inclusion of SIRVA on the Table, she

must prove her claim by showing that her injury was caused-in-fact by the vaccination in

question. § 11(c)(1)(C)(ii). The Federal Circuit has held that to establish causation, a

petitioner must “prove . . . that the vaccine was not only a but-for cause of the injury but

also a substantial factor in bringing about the injury.” Shyface v. Sec’y of Health &

Human Servs., 165 F.3d 1344, 1352 (Fed. Cir. 1999). The received vaccine, however,

need not be the predominant cause of the injury. Id. at 1351.

The Circuit Court has indicated that a petitioner “must show ‘a medical theory

causally connecting the vaccination and the injury’” to establish that the vaccine was a

substantial factor in bringing about the injury. Shyface, 165 F.3d at 1352-53 (quoting

Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992)). The

Circuit Court added that "[t]here must be a ‘logical sequence of cause and effect

showing that the vaccination was the reason for the injury.’” Id. The Federal Circuit

subsequently reiterated these requirements in a three-pronged test set forth in Althen v.

Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). Under this test,

a petitioner is required

to show by preponderant evidence that the vaccination

brought about her injury by providing: (1) a medical theory

causally connecting the vaccination and the injury; (2) a

logical sequence of cause and effect showing that the

vaccination was the reason for the injury; and (3) a showing

of a proximate temporal relationship between vaccination and

injury.

Id. All three prongs of Althen must be satisfied. Id. Circumstantial evidence may be

considered, and close calls regarding causation must be resolved in favor of the

petitioner. Id. at 1280.

IV. Fact Hearing

A. Applicable Legal Standard for Factual Findings

A petitioner must prove, by a preponderance of the evidence, the factual

circumstances surrounding her claim. § 13(a)(1)(A). 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 &

Human 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 & Human 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 & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec.

Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V,

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

B. Testimony

During the fact hearing held in Grand Rapids, Michigan on June 26, 2018, the

undersigned heard testimony from petitioner and her husband. Petitioner testified first

and described the details surrounding the vaccination alleged as causal, the

subsequent treatment she received, and severity and effects of her injury. Petitioner’s

husband provided testimony regarding his interactions with his wife following

vaccination and limitations he observed.

Petitioner testified that she received the vaccination alleged as causal when

visiting the Hart Clinic for a physical on October 2, 2015. Transcript (“Tr.”) at 5-7.

Although she indicted she had been going to the clinic for approximately two and a half

years, she testified that she had not seen the nurse who administered the vaccination

previously. Tr. at 6. Petitioner recalled many of the details surrounding the vaccination,

indicating that it occurred after the doctor left the room and was administered in her left

arm while she was sitting with her top off and the nurse was standing. Tr. at 6-7.

Petitioner stated that, due to a fear of needles, she tried not to look while the

vaccination was being administered but felt immediate pain upon injection, worse than

what she had felt with previous vaccinations. Tr. at 7-8. She asked the nurse if she

broke the needle off in her arm. Tr. at 7. Petitioner testified that the nurse reacted

harshly and, in response to petitioner’s request to speak to the doctor, informed her that

she had left because it was homecoming. Tr. at 8. When petitioner’s counsel asked

petitioner if she had suffered from any prior shoulder injuries, petitioner replied that she

had not. Tr. at 9-10.

Describing the events following vaccination, petitioner indicated she returned

home and cried to her husband. Tr. at 10. In response, he gave her an ice pack and

told her that the nurse may have bruised her bone. In addition to the ice pack, petitioner

took Tylenol and tried heat to see if that would alleviate her pain. She stated that she

slept in the recliner that night. When asked to describe the injection site, petitioner

testified that she did not notice any redness or swelling but did have tenderness which

felt better when she pressed on it slightly. Tr. at 10. She continued to apply ice and

heat the next day and accompanied her husband to the store when he cautioned that

she did not want her shoulder to become stiff. Tr. at 11.

Petitioner testified that, a few days later, she returned to the laboratory, located

at the back of her doctor’s office, to have blood drawn. Tr. at 11. She stated that she

informed the technician of her left arm pain and was told that a man who was seen

before her had a similar complaint. Tr. at 12. After examining her arm, the technician

assured her that some people take longer to heal after a vaccination and that she

should continue to apply ice and heat and to take Tylenol. Petitioner testified that she

complained of her pain again when she called the clinic a few days later to obtain her

cholesterol results. Tr. at 12. After being reassured that some people take longer to

heal and being asked if she was experiencing a fever, petitioner declined to make an

appointment. Tr. at 12-13. Petitioner could not recall to whom she spoke but guessed

that it may have been Dana, a nurse with whom she was familiar. Tr. at 13.

Petitioner then described the difficulties she experienced sleeping and

performing common tasks such as shampooing her hair. Tr. at 13. She indicated that

eventually, her arm became frozen to her side, as if hanging in a sling. Tr. at 14. She

stated that her husband had to do everything for her. Tr. at 15.

Regarding treatment, petitioner testified that she was seen by her PCP in

January 2016 and underwent x-rays and an MRI. Tr. at 17. Although she could not

recall the name of the orthopedist she saw in February 2016, she remembered that he

prescribed medication, including muscle relaxers which made her sick, gave her

exercises to perform, and arranged formal PT. Tr. at 18. She described the PT, began

on March 8, 2016. Tr. at 21-23.

Petitioner testified further regarding the activities she was unable to do, such as

lifting her iron skillet, knitting, or holding her grandson, and ways she had adapted such

as using a stool when getting items from the cabinet. Tr. at 25-28.

When asked why she declined a cortisone shot, petitioner expressed her dislike

for doctors, needles, and surgery. Tr. at 29. Regarding the notation in the medical

records from Northern PT, indicating petitioner’s pain began on November 30, 2015,

petitioner surmised that it may be a typo or that she may have provided that date. Tr. at

29. However, she could think of no reason why she would have indicated November

30, 2015, adding that she believed she was at her daughter’s house for Thanksgiving

on that day. Tr. at 29-30.

During cross examination, respondent’s counsel asked petitioner if she had

called the doctor’s office regarding her left shoulder pain at any time besides the call to

Dana which had already been discussed. Petitioner thought she had called an

additional time before traveling to her daughter’s house for Thanksgiving but could not

understand why that call was not noted in the medical records. Tr. at 33-34. When

respondent’s counsel asked about specific activities: lifting her iron skillet, washing her

hair, and putting on her bra, petitioner stated she could do all activities with an

adjustment needed when lifting the iron skillet. Tr. at 40.

In response to questioning from the undersigned, petitioner pointed to the

physical location where she received the influenza vaccination, “where the humerus

inserts into the shoulder joint.” Tr. at 41. When the undersigned asked if anyone else

had indicated the vaccination was administered too high, petitioner replied that Dr.

Howard had. She added that he was “the only one who believed [her, and that] . . . he

had heard of this flu vaccine having resulted in injuries to the shoulder on many of his

patients.” Tr. at 43. According to petitioner, Dr. Howard “recommended a better

physical therapy program at a fitness spa,” which was why she stopped going to

Northern PT. Tr. at 43. Presumably, the PT facility recommended by Dr. Howard was

Spectrum Health Rehab, which petitioner visited in June through early August 2016.

Petitioner confirmed that she had stopped formal PT because she had reached her

goals, had not gone to an orthopedist since last seeing Dr. Howard in June 2016, and

that she had not received and did not plan to receive a cortisone injection or undergo

surgery. Tr. at 54.

During his testimony, petitioner’s husband confirmed that petitioner had

complained of her shoulder pain shortly after vaccination and that he was required to

help her with many of her normal activities. Tr. at 57-63. He testified that petitioner

experienced pain the evening after vaccination and was unable to sleep. Tr. at 58. He

did not recall the events of the next day but verified that he recommended petitioner

seek medical care. Tr. at 60. When asked about petitioner’s current condition, he

indicated she was doing well. He stated that he still helps petitioner put away dishes

that are kept in a higher location but attributed that in part to her short stature. Tr. at 63.

He testified that he knew of no shoulder injury experienced by petitioner prior to the

vaccination alleged as causal. Tr. at 64.

During cross examination, respondent’s counsel asked petitioner’s husband for

additional details regarding his time as a military medic, which he had mentioned earlier.

he stated he worked as a medic from 1964 to 1966 and often gave shots as part of his

duties. Tr. at 64-65. He also provided details regarding the preparation of his affidavit

and confirmed he was present when his wife first complained of her left shoulder pain

during a telephone call to her PCP. Tr. at 65-66.

C. Factual Findings

Respondent does not dispute that petitioner received the vaccination alleged as

causal intramuscularly in her left deltoid on October 2, 2015. Rather, the primary

disagreement in this case involves the timing of the onset of petitioner’s left shoulder

injury.

1. Onset of Pain

While acknowledging the case predates the inclusion of SIRVA as a Table injury,

respondent argues that compensation is not appropriate because the onset of

petitioner’s pain “was not clearly within forty-eight hours,” the time period required for a

Table SIRVA. Rule 4 Report at 6; see 42 C.F.R. § 100.3(a)(XIV)(B) (noting onset for a

Table SIRVA following receipt of the influenza vaccination must occur within 48 hours).

However, there are additional Vaccine Act provisions the undersigned finds instructive

in this case. Under Section 13 of the Act, the special master may find the time period

for the first symptom or manifestation of onset required for a Table injury is satisfied

“even though the occurrence of such symptom or manifestation was not recorded or

was incorrectly recorded as having occurred outside such a period.” § 13(b)(2). “Such

a finding may be made only upon demonstration by a preponderance of the evidence

that the onset . . . occur within the time period described in the Vaccine Injury Table.”

Id.

As the undersigned stated at the fact hearing, there are multiple entries in the

medical records which provide circumstantial evidence that the onset of petitioner’s pain

occurred within 48 hours of vaccination. Tr. at 70-71. When first treated for her left

shoulder pain by her PCP on January 4, 2016, petitioner reported that her pain began

when she received the influenza vaccination in early October 2015. See Exhibit 12 at 1.

Dr. Grierson’s record from his initial visit with petitioner on February 29, 2016, reflects

that the onset of petitioner’s pain was in October, “after the flu shot.” Exhibit 11 at 8;

Exhibit 2 at 18. Records from visits to petitioner’s PCP for other conditions in February

and March 2016, list the onset of petitioner’s bone and cartilage disorder as October 2,

2015. Exhibit 2 at 22, 25, 28. The medical record from petitioner’s initial PT evaluation

at Lakeshore Rehab on March 8, 2016, depicts petitioner’s pain as occurring five

months earlier. Exhibit 8 at 3. Onset is listed as October 2015. Id. at 1. When

petitioner visited Grand Valley Health Plan for a health assessment in May 2016, she

reported that she suffered a left rotator cuff tear in October 2015, for which she was

undergoing PT. Exhibit 7 at 16. When seen by Dr. Howard in June 2016, petitioner

indicated that her left shoulder pain occurred suddenly and was related to her influenza

vaccination. Exhibit 10 at 5.

The undersigned recognizes these entries are from medical histories provided by

petitioner. As the Federal Circuit has noted, it is appropriate for a special master to

give greater weight to evidence contained in medical records created closer in time to

the vaccination, even if the information is provided as part of a medical history. Cucuras

v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (medical

records are generally trustworthy evidence). The Circuit Court explained that

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.

Id.

The only medical records containing entries which suggest petitioner’s onset

was later are those from PT sessions at Northern PT beginning on April 14, 2016, and

at Spectrum Health Rehab beginning on June 14, 2016. The records from Northern PT

list November 30, 2015 as the date of petitioner’s injury. E.g., Exhibit 9 at 53. However,

those records also indicate petitioner’s condition began on November 1, 2015, and that

her pain, described as sharp, began after her flu shot and never went away. E.g., id.

Entries found in the records from Spectrum Health Rehab state that petitioner reported

her pain began in November 2015, but also link onset to the influenza vaccination. E.g.,

Exhibit 9 at 25. Throughout the medical records, including those which provide an

onset date in November 2015, petitioner consistently indicated her pain was immediate,

upon vaccination.

At the hearing, petitioner testified that her pain was sharp and immediate upon

vaccination. As indicated at the hearing, the undersigned finds petitioner’s testimony

persuasive and credible. Tr. at 71. Even without this testimony, the evidence contained

in the medical records supports petitioner’s assertion that her pain was immediate.

The undersigned finds that the overwhelming preponderance of the evidence, as

well as petitioner’s testimony, establish that the onset of petitioner’s pain was immediate

and thus, within 48 hours of vaccination.

2. Prior Condition

At the hearing, the undersigned issued further findings regarding the criteria for a

Table SIRVA. Regarding petitioner’s prior condition, she stated that she finds the

petitioner “had no history of pain, inflammation, or dysfunction of her left shoulder prior

to her . . . flu vaccine administration.” Tr. at 69. She based this finding on a review of

systems performed by petitioner’s PCP on April 2, 2014, the assessment by Dr.

Grierson in late February 2016, and the testimony of petitioner and her husband. Tr. at

69. In the April 2, 2014 record, under the musculoskeletal portion of the review of

systems, it is noted that petitioner had “No muscle or joint pain, weakness, swelling or

inflammation. No restriction of motion, no atrophy or backache.” Exhibit 2 at 69.

Referring to petitioner’s influenza vaccination, Dr. Grierson indicated that petitioner “did

not have any pain or weakness in the left shoulder before this injection.” Exhibit 11 at 8;