Williams v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17-1046V

Filed: April 1, 2020

Refiled in Redacted Form: July 1, 2020

UNPUBLISHED

Special Master Horner

ROBERT WILLIAMS,

Petitioner, Finding of Fact; Shoulder Injury

v. Related to Vaccine

Administration; SIRVA;

SECRETARY OF HEALTH AND Influenza (flu) Vaccine; Onset

HUMAN SERVICES,

Respondent.

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for

petitioner.

Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.

FINDING OF FACT1

On August 3, 2017, petitioner filed a petition under the National Childhood

Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that as a result of a

pneumococcal (“PCV13”) vaccination that he received on February 16, 2016, he

suffered a left Shoulder Injury Related to Vaccine Administration (“SIRVA”).

Respondent recommended that compensation be denied, arguing, inter alia, that there

is not preponderant evidence that petitioner’s shoulder pain began within a timeframe

that would support a finding of vaccine causation, namely 48 hours. For the reasons

described below, I now issue the below finding of fact. I conclude that petitioner

experienced onset of shoulder pain within 48 hours of receiving his vaccination.

1 When this decision was originally filed the undersigned advised his intent 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). In accordance

with Vaccine Rule 18(b), petitioner filed a motion to redact certain information. This decision is being

reissued without specific named reference to petitioner’s primary care physician, primary care office

nurse, primary care office/clinic, or the chronic condition referenced herein. Except for those changes

and this footnote, no other substantive changes have been made. This decision will be posted on the

court’s website with no further opportunity to move for redaction.

I. Procedural History

This case was first assigned to Special Master Millman. (ECF No. 4.) On April

26, 2018, respondent filed his Rule 4 report, recommending that entitlement be denied

in this case. (ECF No. 14.) Respondent raised the issue that “the most

contemporaneous documentation does not establish that the onset of petitioner’s pain

occurred within forty-eight hours of the vaccination.” (Id. at 6.) Eventually, Special

Master Millman ordered petitioner to file an expert report to support his case.

Subsequently, this case was reassigned to my docket on June 5, 2019. (ECF

No. 26.) On July 15, 2019, petitioner filed a motion to amend schedule, requesting

petitioner’s deadline to file an expert report be temporarily suspended in light of ongoing

discussions regarding the scheduling of depositions. (ECF No. 27.) A status

conference was held on August 6, 2019 to discuss petitioner’s motion, which was

ultimately granted. Petitioner’s deadline was suspended and petitioner was granted

authority to serve subpoenas on his primary care physician (“PCP”) and a primary care

office nurse (“PCN”) to appear for depositions. (ECF Nos. 29-30.) On November 29,

2019, petitioner filed additional records and transcripts of the depositions of the PCP

and the PCN. (ECF No. 32.)

On January 14, 2020, petitioner filed a motion for a finding of fact requesting a

finding that onset of petitioner’s shoulder injury was within 48 hours of receiving his

February 16, 2016 pneumococcal vaccination.2 (ECF No. 35.) Petitioner argues that

the medical records show that petitioner “consistently reported to his medical providers

that his pain began with the injection he received on February 16, 2016.” (Id. at 7.)

Additionally, petitioner argues that the deposition testimony from his PCP shows that

petitioner is reliable, a good historian, and a truthful person, and further that his PCP

recalled petitioner telling him that the shoulder pain was immediate after the vaccination

was administered. (Id. at 8.) Moreover, his PCP did not dispute that petitioner reported

shoulder pain during an intervening visit although his records did not indicate such

report of shoulder pain. (Id.) Therefore, petitioner argues that the medical records

make clear that petitioner’s pain began within 48 hours of receiving his vaccination. (Id.

at 9.)

On February 13, 2020, respondent filed a response to petitioner’s motion for a

finding of fact. (ECF No. 36.) Respondent “maintains that the record as a whole does

not support a finding that a preponderance of the evidence supports a finding that the

onset of petitioner’s left-sided shoulder pain began within forty-eight hours of his PCV13

vaccination.” (Id. at 1.) Respondent points to several instances where petitioner failed

to report shoulder pain, including the phone call to the PCP the day after vaccination

and during the visit with the PCP three months after vaccination. (Id. at 10.)

Respondent also stresses that the first time petitioner is recorded to have been suffering

shoulder pain was on June 1, 2016, when petitioner presented to urgent care, more

than three months after vaccination. (Id. at 10-11.) Therefore, respondent argues that

2Petitioner also urged me to further hold that petitioner is entitled to compensation (ECF No. 35, p. 10);

however, this ruling is limited to determining the onset of petitioner’s shoulder symptoms.

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“while the medical record and factual testimony support a finding that petitioner

experienced shoulder pain at some point following the PCV13 vaccination, neither the

medical records nor the factual testimony establish by a preponderance of the evidence

that petitioner’s left-sided shoulder pain began within forty-eight hours of the

administration of the PCV13 vaccination.” (Id. at 11-12.)

Petitioner filed no reply.

II. Factual History

a. Medical Records

Petitioner received a pneumococcal vaccination in his left deltoid on February 16,

2016, during a routine follow-up visit with his PCP at the PCP’s office/clinic. (Ex. 6, p.

1154.) On the same day, petitioner received a Hep B vaccination in his right deltoid.

(Id.) According to the PCN, petitioner tolerated the vaccine well and there was no pain

or reaction at the injection site. (Ex. 3, p. 262.) The following day on February 17,

2016, petitioner called his doctor’s office inquiring about his medication and the PCP

indicated that the office had issues with the pharmacy. (Id. at 258.)

On April 5, 2016, petitioner presented for lab work. (Ex. 9, p. 508.) On May 10,

2016, he had a routine follow-up visit with his PCP to discuss his lab work and possible

adjustments to his medications for a chronic condition unrelated to his alleged injury.

(Id. at 524.) Petitioner did not have any specific complaints. (Ex. 2, p. 116; Ex. 3, pp.

196-198.) The PCP noted that petitioner denied having any problems and was “feeling

well except wearing sunglasses due to light sensitivity.” (Ex. 2, p. 116; Ex. 3, p. 196.)

Petitioner’s chronic condition was stable and petitioner was told to continue his

medication. (Ex. 3, p. 197.) Petitioner did not need any vaccines at that visit and was

scheduled to return in four months. (Id.)

On June 1, 2016, petitioner presented to urgent care for left shoulder pain (“c.o

left shoulder pain x 3 months after receiving hep b vaccine”).3 (Ex. 2, p. 152; Ex. 9, p.

586.) He reported “[n]o trauma, redness, fever, chills, n/v, HA, dizziness.” (Id.) Reason

for visit was listed as “[p]ain to left arm [status post] vaccine; VACINATION [sic.] PAIN.

(Ex. 9, p. 561.) Petitioner had an x-ray of his shoulder, which had no significant

findings, and was discharged the same day. (Ex. 2, p. 151; Ex. 9, p. 588.) His

discharge diagnosis was “shoulder pain,” which was characterized as “likely tendinitis.”

(Ex. 9, p. 588.)

Petitioner returned to his PCP on July 5, 2016 for “Lt shoulder pain after vaccine

shot on 02/2016.” (Ex. 9, p. 625.) He complained of “stabbing pain from left deltoid to

3 Notably, this report attributes petitioner’s pain to the wrong vaccination. Petitioner received his Hep B

vaccine in his right shoulder and his pneumococcal vaccination in his left shoulder. The location of

petitioner’s injections was initially an issue litigated by the parties; however, on October 12, 2018,

respondent confirmed that he agrees petitioner received his pneumococcal vaccine in his left deltoid.

(ECF No. 21; ECF No. 36, p. 1.)

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elbow.” (Ex. 2, p. 156; Ex. 3, p. 117.) Petitioner reported that he had pain “since

injection in L deltoid in Feb” and denied any recent or remote injury. (Id.) Petitioner

reported frequent stabbing pain and difficulty using his left arm. (Id.) Petitioner was

assessed with likely frozen shoulder syndrome versus rotator cuff injury versus deltoid

tendonitis. (Ex. 3, p. 118.) The PCP doubted petitioner had a vaccine reaction but

considered that vaccination could have led to local inflammation leading to capsulitis.

(Id.) An MRI was ordered, which was later completed on September 16, 2016.4 (Ex. 3,

p. 118; Ex. 9, pp. 719, 721-22.)

In a follow up consultation note seeking a referral to orthopedics, the PCP

relayed that petitioner had a “5 month hx of L shoulder pain and decreased mobility

following deltoid IM injection in 2/2016 (13 valent pneumococcal conjugate vaccine).”

(Ex. 6, p. 28.) He was advised to resubmit the referral request after an MRI was

complete. (In a further follow up note two months later, he stressed regarding the

vaccination that “[p]atient certainly believes that this was cause and the problem did

start very soon after immunization.” (Id.)) The PCP also referred petitioner for physical

therapy on July 6, 2016, reporting again that petitioner had a five-month history of left

shoulder pain and decreased mobility following his pneumococcal vaccination. (Ex. 3,

pp. 240, 256.)

On September 20, 2016, the PCP again referred petitioner for an orthopedics

consultation, stating that petitioner “had IM injection of PCV 13 vaccine in L deltoid in

Feb 2016 and subsequently has had pain [decreased range of motion] of L shoulder

that is debilitating and has not responded to NSAIDs and ROM exercises.” (Ex. 3, p.

257.) He added that petitioner was concerned that the PCV13 vaccination caused his

condition. (Id.)

Subsequently, on June 29, 2017, petitioner presented for physical therapy. (Ex.

5, p. 4.) At that time, he indicated that his shoulder pain and reduced range of motion

began “the next day” following his February 2016 vaccination. (Id.)

b. Petitioner’s Affidavit

Petitioner affirmed that he went to his PCP’s office/clinic for a four-month

checkup on February 16, 2016, where he received two injections, one in each shoulder.

(Ex. 4.) Petitioner stated that that he was given a pneumococcal vaccine in his left

shoulder and a Hepatitis B vaccine in his right. (Id. at 1.) Petitioner indicated that the

next day following his vaccinations, petitioner “felt quite a bit of discomfort in [his] left

shoulder around the injection site,” and he “thought it would just go away, but it didn’t. It

only intensified.” (Id.) Petitioner stated that he called the clinic a few days later

because he couldn’t move his left arm without experiencing extreme pain and was told

to come in to the clinic. (Id.) Petitioner stated that he went to the clinic, where he was

4Notably, the MRI study report indicates petitioner’s pain had been present “x 5 months.” (Ex. 9, p. 721.)

This is consistent with the PCP’s notation at the time he ordered the MRI; however, the MRI report was

not generated until two months later.

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examined and had an x-ray. (Id.) Petitioner recalled being told he had a frozen

shoulder. (Id.)

c. Depositions

On September 20, 2019, depositions of petitioner’s PCP and PCN were taken.

(Ex. 7 (“PCP Tr.”); Ex. 8 (“PCN Tr.”).) The PCP testified that petitioner has been his

patient for over five years and that petitioner has been truthful and is a good historian

when giving his medical facts. (PCP Tr. 8-10.) He could not specifically recall when

petitioner first reported his shoulder injury but only that it was sometime between

petitioner’s February 2016 appointment and his July 2016 visit. (PCP Tr. 11.) He

testified that there was a visit in between February and July, but he could not recall

whether petitioner discussed his shoulder pain at the May 10, 2016 visit. (Id. at 11-12.)

The PCP testified that petitioner was convinced his pain was related to his vaccination

because “nothing else had happened to his left shoulder that would explain the pain.”

(Id. at 14.) He testified that he explained to petitioner that vaccine reactions were

uncommon events, but do occur, and prescribed petitioner ibuprofen, warm or ice

compressions, and range of motion exercises to manage petitioner’s frozen shoulder

syndrome. (Id.) The PCP testified that it was his impression that petitioner started

experiencing pain immediately after the vaccination. (Id. at 16, 25-27.) He did recall

that petitioner told him that the pain occurred at the time of the vaccination and that it

was more severe than pain that petitioner had experienced with vaccinations previously.

(Id. at 16, 25.)

The PCP testified that he did not have a specific recollection of petitioner

mentioning his shoulder pain during his May 2016 visit and added “I don’t believe that

it’s incorrect.” (Id. at 16-17.) Additionally, the PCP explained that it is possible that

petitioner could have complained about shoulder pain and that he would not have noted

it in the record if he thought the pain was part of the normal response to vaccination.

(Id. at 21-22.) He explained that if the pain was something that was out of the ordinary

and needed immediate attention, then he would have noted it. (Id.) He indicated that

there are patients who have lingering pain at the vaccination site three months

subsequent to immunization. (Id. at 22.) The PCP also explained that nursing

personnel usually input the chief complaint and that he has the ability to modify if need

be. (Id.)

The PCN testified that he could not recall whether he saw petitioner at the clinic

within seven days after petitioner received his vaccination. (PCN Tr. 6-7.) He testified,

however, that he did not specifically ask petitioner to get an x-ray. (Id. at 7.) The PCN

did recall administering the vaccines at issue, but did not remember any immediate

reports of unusual pain from petitioner after administrating the vaccine. (Id. at 8.) He

recalled making an addendum to his notes of the day that he administered petitioner’s

vaccination. (Id. at 8-9.) The PCN testified that he was prompted to go back to his

notes when petitioner asked him to testify, but that adding the addendum was self-

initiated. (Id. at 9.) Additionally, he added that his notation of no pain or reaction at the

injection site is the “standard language” that he uses and that he could not recall his

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“exact action” in recording that notation. (Id.) Although the PCN could not recall the

timeframe, he did recall that petitioner made a phone call regarding his reaction to the

vaccination. (Id. at 10-11.) However, he believed he made a record of that phone call.

(Id. at 12.)

III. Legal Standard Applied

The process for making determinations in Vaccine Program cases regarding

factual issues begins with consideration of the medical records. 42 U.S.C. § 300aa-

11(c)(2). The special master is required to consider “all [ ] relevant medical and

scientific evidence contained in the record,” including “any diagnosis, conclusion,

medical judgment, or autopsy or coroner's report which is contained in the record

regarding the nature, causation, and aggravation of the petitioner's illness, disability,

injury, condition, or death,” as well as “the results of any diagnostic or evaluative test

which are contained in the record and the summaries and conclusions.” 42 U.S.C. §

300aa-13(b)(1).

The special master is then required to weigh the evidence presented, including

contemporaneous medical records and testimony. See, e.g. Burns v. Sec'y of Health &

Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993). Specifically, “[t]he special master or

court may find the first symptom or manifestation of onset or significant aggravation of

an injury, disability, illness, condition, or death described in a petition 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.” 42 U.S.C. § 300aa-13(b)(2).

Medical records that are created contemporaneously with the events they

describe are presumed to be accurate and trustworthy because they “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.” Cucuras v. Sec'y of Health & Human Servs., 993 F.2d 1525, 1528

(Fed. Cir. 1993); see also Doe v. Sec'y of Health & Human Servs., 95 Fed. Cl. 598, 608

(2010) (“[g]iven the inconsistencies between petitioner's testimony and his

contemporaneous medical records, the special master's decision to rely on petitioner's

medical records was rational and consistent with applicable law”); Rickett v. Sec'y of

Health & Human Servs., 468 Fed. Appx. 952 (Fed. Cir. 2011) (non-precedential

opinion). Accordingly, if the medical records are clear, consistent, and complete, then

they should be afforded substantial weight. Lowrie v. Sec'y of Health & Human Servs.,

No. 03-1585V, 2005 WL 6117475, at *19-20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005).

IV. Finding of Fact

In light of the above-discussed legal standard and based on my review of the

entire record, I find preponderant evidence that petitioner’s alleged vaccine-caused

shoulder pain began within 48 hours of his February 16, 2016 pneumococcal

vaccination. The contemporaneous treatment records repeatedly and consistently

reflect notations of an onset “after receiving” his vaccination, “following deltoid IM

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injection in 2/2016,” “after vaccine shot,” “since injection,” and “very soon after

immunization,” all of which together tend to suggest an immediate onset. (E.g., Ex. 2, p.

152; Ex. 3, pp. 14, 113, 117; Ex. 6, p. 28.) This is further confirmed by the testimony of

petitioner’s PCP, who testified that he considered petitioner a good historian generally

and that he did recall petitioner expressing that his shoulder pain began “immediately”

or “right after” his vaccination as well as the fact that petitioner was convinced that his

pain was related to his vaccination. (PCP Tr. 14, 16, 26-27.)

Respondent disagrees that the above-referenced notations regarding onset are

necessarily indicative of pain occurring within 48 hours of vaccination. (ECF No. 36, p.

12, n. 4.) Rather, respondent contends that these notations of “since,” “after,” etc,

indicate only onset occurring at some point following vaccination, but not necessarily

within 48 hours. However, in light of the specific facts of this case, and when viewing

the record as a whole, I disagree.

First, given the context of the notations – i.e. petitioner seeking a diagnosis for

his shoulder pain - I give some weight to the fact of the records indicating that petitioner

consistently and affirmatively associated onset of his pain directly to his vaccination

regardless of the fact that the medical providers used terms that were arguably vague

as to timing. Second, these notations also include further context in the form of

references to the duration of petitioner’s symptoms. For example, when petitioner first

reported his shoulder pain as occurring “after receiving” his vaccination the provider

also recorded that the pain had been present “x 3 months.” (Ex. 2, p. 152.) Thus,

although this notation again is not exact vis-à-vis the date of vaccination, it confirms that

the notation of pain “after” injection cannot be interpreted to refer to any point between

vaccination and the date of the medical visit.5 Petitioner’s PCP later, and similarly,

recorded in July of 2016 that petitioner had experienced symptoms “since” his injection

and then specifically reported in his referrals to both physical therapy and orthopedics

that petitioner had a five-month history of pain related specifically to his February 2016

vaccination. (Ex. 3, pp. 117, 240, 256.) Third and relatedly, the PCP, who was

responsible for at least some of the notations in question, confirmed in his deposition

that he understood petitioner to be reporting an immediate onset. (PCP Tr. 14, 16, 26-

27; Ex. 3, p. 117.) And finally, petitioner eventually reported more explicitly to his

physical therapist and in his affidavit that his pain began “the next day.” (Ex. 4, p. 1; Ex.

5, p. 4.) For these reasons, and based on the record as a whole, I find the notations

characterizing onset as “since,” “after receiving,” “following,” and “very soon after”

5

Given the dates of vaccination (February 16) and the appointment at which this history was given (June

1), an exacting calculation of a three-month history of pain would not extend as far back as petitioner’s

actual date of vaccination. However, it has been observed in prior SIRVA cases that histories of present

illness reported by patients may include imprecise or generalized recollections of onset that should not be

overanalyzed where they are consistent with the appropriate timeframe. See, e.g., Cooper v. Sec’y of

Health & Human Servs., No. 16-1387V, 2018 WL 1835179, n.13 (Fed. Cl. Spec. Mstr. Jan. 18, 2018).

Here, although the cited duration is clearly off by about two weeks, petitioner’s reported use of a whole-

month interval appears likely to be a generalization and petitioner explicitly linked onset to a specific

vaccination known to have been given on the date at issue. Moreover, given the record as a whole, the

fact that petitioner did not more precisely report a three-and-a-half-month history of pain is not as

significant as it otherwise could have been.

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injection are best understood as indicating onset was effectively immediate, or within 48

hours of, vaccination.

As noted above, however, respondent raises several additional counterpoints.

First, respondent stresses that petitioner’s records reflect that he did not report the

presence of shoulder pain until June of 2016, more than three months after his

vaccination. (ECF No. 36, pp. 10-11.) And actually, the first time that petitioner

reported shoulder pain to his PCP specifically was during a July 5, 2016 visit, about five

months after vaccination. (Id.) Respondent argues that this delay should cast doubt on

his claim of immediate onset. (Id. at 11-12.) Respondent also indicates that the day

after receiving his vaccination, petitioner had a phone call with his PCP regarding

medication and failed to reference any shoulder pain. (Id. at 10.) Additionally,

respondent notes that during that five-month period, petitioner returned to the PCP for

routine care of a chronic condition and was not recorded to have reported any shoulder

pain. (Id. at 2, 10.) Respondent also points out that the PCN did not recall petitioner

suffering any immediate or unusual pain. (Id. at 6.) In that regard, the nursing record

reflecting the administration of petitioner’s vaccinations indicates that “[patient] tolerated

vaccine well” and that there was “[n]o pain or reaction at site.” (Ex. 6, p. 1157.)

Petitioner averred that he called the clinic “a few days later” to report his shoulder pain.

(Ex. 4, p. 1.) He indicated that he was told to come in, was examined, and was x-rayed.

(Id.) However, there are no records to support petitioner’s recollection.

Although there was a delay in seeking treatment as well as an intervening

appointment and phone calls where the record is silent regarding any shoulder pain (Ex.

3, pp. 191-201), that intervening activity was for a specific and limited purpose (securing

and reviewing medications for his unrelated chronic condition) and I am not persuaded

in this case that the fact of this activity outweighs the remainder of the

contemporaneous records. In prior decisions it has been held that neither a delay in

seeking treatment in itself, nor a failure to report symptoms to a specialist or emergency

room provider prior to later seeking treatment, is necessarily dispositive of whether a

petitioner’s shoulder pain began within 48 hours of vaccination. See Forman-Franco v.

Sec’y of Health & Human Servs., No. 15-1479V, 2018 WL 1835203 (Fed. Cl. Spec.

Mstr. Feb. 21, 2018); Tenneson v. Sec’y of Health & Human Servs., No. 16-1664V,

2018 WL 3083140 (Fed Cl. Spec. Mstr. Mar. 30, 2018), mot. rev. denied 142 Fed. Cl.

329 (2019); Gurney v. Sec’y of Health & Human Servs., No. 17-481V, 2019 WL

2298790 (Fed. Cl. Mar. 19, 2019). Moreover, the PCP could not confirm that

petitioner’s shoulder pain was not raised at this appointment. (PCP Tr. 16-17.) He had

no specific recollection of the appointment but indicated that it is possible he could have

failed to record a report of shoulder pain. (Id. at 21-22.)

Additionally, petitioner’s recollection that he made a report of shoulder pain via a

call to the clinic is supported by the testimony of the PCN. Although he could not recall

the timing, the PCN recalled that petitioner had called him to complain about his

shoulder pain. (PCN Tr. 10-11.) With regard to the administration of petitioner’s

vaccination, he testified that he could not recall whether petitioner reported any

immediate pain. (PCN Tr. 7-8.) He explained that the notations in the medical record

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denying any pain or reaction at the injection site is a standard notation; however, he

could not independently recall making the notation. (Tr. 9.) Notably, however, the PCN

denied ever recommending that petitioner have an x-ray performed (PCN Tr. 7) and

petitioner’s records reflect that an x-ray was performed on June 1, 2016, rather than in

the days after his vaccination. (Ex. 3, p. 171.) Thus, the timing and events surrounding

petitioner’s interaction with the PCN remain unclear. Nonetheless, upon review of the

complete record, the evidence preponderates in favor of a finding that petitioner

experienced onset of left shoulder pain within 48 hours of his vaccination.

V. Conclusion

In light of all of the above, I find that there is preponderant evidence that

petitioner’s alleged left shoulder pain began within 48 hours of his February 16, 2016

pneumococcal vaccination.

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

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