“[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”
How later courts described this case
- “[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”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1736V
Filed: July 7, 2022
PUBLISHED
Special Master Horner
JOYCE GRUSZKA,
Petitioner, Finding of Fact; Shoulder Injury
v. Related to Vaccine
Administration (SIRVA);
SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Onset
HUMAN SERVICES,
Respondent.
Michael G. McLaren, Black McLaren et al., PC. Memphis, TN, for petitioner.
Christine Becer, U.S. Department of Justice, Washington, DC, for respondent.
FINDING OF FACT 1
On November 8, 2018, petitioner filed a petition under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), 2 alleging that as a result of her
August 18, 2017, influenza vaccination, she suffered a left Shoulder Injury Related to
Vaccine Administration (“SIRVA”). (ECF No. 1.) 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. (ECF No. 21.) For the reasons described below, I
now issue the below finding of fact. I conclude that there is not preponderant evidence
that petitioner suffered onset of new or significantly aggravated left shoulder pain within
48 hours of her August 18, 2017, flu vaccination.
1
Because this finding of fact contains a reasoned explanation for the special master’s action in this case,
it will be posted on the United States Court of Federal Claims’ website in accordance with the E-
Government Act of 2002. See 44 U.S.C. § 3501 (2018) (Federal Management and Promotion of
Electronic Government Services). This means the document 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 the special master, upon review, agrees that the identified material fits within this definition, it
will be redacted from public access.
2All references to “§ 300aa” below refer to the relevant section of the Vaccine Act at 42 U.S.C. § 300aa-
10-34 (2018).
I. Procedural History
Petitioner filed her petition on November 8, 2018. (ECF No. 1.) This case was
initially assigned to the Court’s Special Processing Unit (“SPU”) on November 9, 2018.
(ECF No. 4.) On November 12, 2018, petitioner filed an affidavit, medical records, and
a statement of completion. (ECF Nos. 6, 7.) Subsequently, petitioner filed additional
medical records and her second affidavit. (ECF Nos. 10, 11, 13.) On November 30,
2019, respondent filed his Rule 4 report, recommending that entitlement be denied in
this case. (ECF No. 21.) Respondent raised the issue that “the record does not
establish that petitioner suffered SIRVA from a vaccination within forty-eight hours and
she had significant underlying chronic shoulder issues[.]” (Id. at 5.) Specifically,
respondent noted that petitioner’s treating physicians had identified advanced
osteoarthritis of the affected shoulder and petitioner had reported on multiple occasions
during her treatment that she had a prior history of left shoulder pain from 2015. (Id. at
4.) On December 10, 2019, this case was removed from the SPU and reassigned to my
docket. (ECF No. 23.)
On January 8, 2020, petitioner filed a status report indicating that the parties
“conferred regarding the onset issue and [could] not come to an agreement[.]” (ECF
No. 24.) The parties agreed to schedule a fact-hearing for the court to hear testimony
on onset and duration of symptoms. (Id.) However, on January 10, 2020, I instead
ordered petitioner to produce any records related to her neck and/or left shoulder pain
from 2015. (ECF No. 25.) Subsequently, on January 16, 2020, petitioner filed her third
affidavit, a statement from her son, Joe Gruszka, and a statement from her daughter,
Cynthia Kuklinski. (ECF No. 26.) On April 13, 2020, petitioner filed additional medical
records from Premier Ortho and Sports. (ECF No. 29.)
On April 29, 2020, a status conference was held where I informed the parties that
a fact hearing was not beneficial at this time, prior to resolving the threshold issue of
petitioner’s degenerative condition unrelated to vaccination. (ECF No. 30.) Petitioner
was unable to produce any contemporaneous medical records corroborating her
recollection that her complained-of 2015 shoulder pain was actually neck rather than
shoulder pain. (Id.) Therefore, I ordered petitioner to file any additional records
reflecting her treatment in 2015. (Id.) Between May and October 2020 petitioner filed
additional medical and insurance records. (ECF Nos. 31, 32, 34, 36, 37, 39.) On
November 13, 2020, petitioner filed a status report indicating that she had no additional
records to file for respondent’s and the court’s review. (ECF No. 41.) On November 13,
2020, I ordered petitioner to file either a motion for a ruling on the record or an expert
report to support her case. (ECF No. 42.)
On January 8, 2021, petitioner filed updated medical records from Premier
physical therapy and an expert report from Dr. Srikumaran. (ECF Nos. 43, 44.)
Respondent filed an expert report from Dr. Cagle Jr. on March 26, 2021. (ECF No. 47.)
On May 11, 2021, a status conference was held, and the parties agreed that a fact
hearing was appropriate. (ECF No. 49.) A one-day fact hearing was held on October 6,
2021. (ECF No. 51; See Transcript of Proceedings (“Tr”) filed 11/16/2021.)
2
Subsequently, the parties filed a joint status report on November 5, 2021, wherein
petitioner requested time to review the transcript prior to a formal fact finding. (ECF No.
54.) On November 12, 2021, the parties filed another joint status report, deferring to the
court regarding any post-hearing briefing. (ECF No. 55.) I issued a NON-PDF order
indicating that the parties need not file briefs in support of their respective positions, but
ordered the parties to file a joint status report regarding the issue(s) presented for a
finding of fact. (See Dkt. Text 11/12/2021.)
On November 16, 2021, the parties filed a joint status report requesting
resolution of the following factual issue: “[w]hether Petitioner suffered onset of new or
significantly aggravated left shoulder / arm pain within 48 hours of her August 18, 2017,
flu vaccination.” (ECF No. 56.) The case is now ripe for such a finding of fact.
II. Factual History
a. Medical Records
i. Pre-vaccination records
Petitioner’s prior medical history is significant for bilateral knee pain, right foot /
ankle pain, osteoarthritis, and ankylosing spondylitis. (Ex. 6, pp. 56-75, 91-149; Ex. 9,
pp. 72-74, 76-77; Ex. 21, p. 11.) On October 21, 2015, petitioner presented to Gregory
Kirwan, D.O., at Premier Orthopaedic & Sports Medicine Group (“Premier Ortho”), for a
right foot assessment. (Ex. 5, p. 1.) Petitioner’s past surgical history included carpal
tunnel release. (Id.) Petitioner was assessed with right foot pain, right ankle pain,
cellulitis in her right lower extremity, and rheumatoid arthritis in her foot. (Id. at 4-5.)
On March 27, 2017, petitioner presented to Mariclaire Schultz, D.C. for an initial
exam. (Ex. 3, p. 1.) In her initial findings Dr. Schultz noted posterior right knee pain in
extension, cervical instability with a prior cervical fracture, and bilateral ankle swelling.
(Id.) There was no mention of shoulder or arm pain. (See id.) However, on physical
examination, petitioner showed reduced range of motion in her shoulders bilaterally,
and in her cervical and thoraco-lumbar regions. (Id. at 2.) Subsequently petitioner
returned to Dr. Schultz for additional adjustments on April 3, April 10, June 5, July 18,
and August 7, 2017. (See id. at 2-3.)
On May 22, 2017, petitioner presented to Michael S. Rosen, M.D., complaining of
ongoing paresthesia in her legs, left greater than right. (Ex. 6, p. 46.) She reported a
history of diabetes. (Id.) Dr. Rosen observed that her ankylosing spondylitis was
otherwise well managed. (Id.) He ordered an ultrasound to rule out a Baker’s cyst and
ordered petitioner to return in 6 weeks. (Id. at 47.)
On June 7, 2017, petitioner underwent an EMG evaluation, complaining of
burning pain in her calves. (Ex. 6, p. 41.) Extensive EMG evaluations were completed
in the muscles of both lower extremities, innervated by lumbar nerve roots L2 through
S2. (Id.) Daniel Kane, M.D., indicated that the electrodiagnostic testing in conjunction
3
with petitioner’s history and physical exam revealed “electrical evidence of a very mild
generalized peripheral neuropathy.” (Id. at 41-42.) He further noted that this condition
was both demyelinating and axonopathic, affecting both petitioner’s motor and sensory
nerves. (Id. at 42.) However, Dr. Kane observed that “[t]here is really not a lot of
evidence to suggest a significant lumbar radiculopathy” and while there were some
reinnervation potentiate noted throughout her legs, he concluded that the results were
“really not too bad for patients 74 years old [sic].” (Id.) There was no evidence of
lumbosacral plexopathy nor myopathy contributing to petitioner’s symptoms. (Id.)
On July 28, 2017, petitioner presented to Nicholas Giuliani, M.D., for a follow-up
visit, with no pain or stiffness, and no further paresthesia in her right leg. (Ex. 6, p. 38.)
On examination Dr. Giuliani noted no synovitis, and no change in range of motion in
petitioner’s lumbar spine. (Id. at 39.) Petitioner’s routine labs were normal, and she
was ordered to return in four months. (Id. at 39-40.)
ii. Vaccination and post-vaccination records
Petitioner received an influenza vaccination in her left arm / deltoid on August 18,
2017. (Ex. 2, p. 4.) On August 22, 2017, petitioner presented to Richard Ziegler, M.D.,
at Premier Ortho for chronic right foot pain. (Ex. 9, pp. 28-29.) In addition to right foot
pain, petitioner complained of decreased mobility, difficulty sleeping, joint tenderness,
limping, night pain, swelling, and weakness. (Id. at 28.) Dr. Ziegler noted that petitioner
was previously seen for her right foot on 10/21/15 with Dr. Kirwan. (Id.) Petitioner also
mentioned that she saw Dr. Rosen for treatment of her arthritis. (Id.) There was no
mention of left shoulder pain. (Id. at 28-29.)
On August 31, 2017, petitioner returned to Premier Ortho to Spencer Monaco,
DPM, for right ankle pain. (Ex. 5, p. 14-19.) Dr. Monaco reviewed her right foot MRI
and assessed petitioner with a mild ankle varus deformity. (Id. at 18-19.) There was no
mention of shoulder pain. (Id. at 17-22.) Petitioner returned to Dr. Monaco again on
September 28, 2017, complaining of right foot pain. (Id. at 20-23.) Dr. Monaco
recommended an ankle brace and noted that petitioner was doing well with nonsurgical
treatment. (Id.) Still, there was no mention of shoulder pain. (Id. at 23-26.)
On October 5, 2017, petitioner returned to Dr. Schultz complaining of left
shoulder discomfort. (Ex. 3, p. 3.) Petitioner “[r]eported just receiving flu shot in left arm
a few weeks ago (8/18/17).” (Id.) Dr. Schultz noted decreased range of motion to
flexion, extension, hyperabduction, adduction, internal rotation, external rotation. (Id.)
No shoulder range of motion measurements were provided. (Id.) Dr. Schultz performed
a deep tissue massage on petitioner’s left shoulder and adjusted her proximal humerus
and superior / lateral scapula. (Id.) On November 2, 2017, petitioner returned to Dr.
Schultz still experiencing pain in her shoulder. (Id. at 4.) Dr. Schultz repeated the same
adjustments on petitioner’s left shoulder. (Id.)
On November 28, 2017, petitioner returned to Dr. Rosen complaining of bilateral
knee pain and “left shoulder pain for the past 2 months with abduction.” (Ex. 6, p. 35.)
4
Dr. Rosen further remarked that petitioner was “doing better taking the Remicade every
4 weeks instead of every 5 weeks. She has ankylosing spondylitis along with
osteoarthritis.” (Id.) On physical examination, Dr. Rosen observed “[h]er upper and
lower extremities reveal no loss of strength or motion. [Range of motion] is full.” (Id. at
36.) Furthermore, he observed crepitation of the knees bilaterally and impingement in
the left shoulder, with abduction at 160 degrees. (Id.) Petitioner’s updated diagnoses
included ankylosing spondylitis of multiple sites in the spine and primary generalized
osteoarthritis. (Id.) Dr. Rosen ordered x-rays of the left shoulder and physical therapy,
noting that if her pain continued, he planned to inject the left shoulder with steroids.
(Id.)
On December 6, 2017, petitioner presented to Jonathan Mayer, PT, DPT, at
Excel Physical Therapy. (Ex. 4, pp. 5-17.) She presented with left shoulder pain,
mostly in the lateral deltoid region and worse when raising her arm overhead, reaching
in overhead cabinets, reaching behind back for dressing, bathing, groom, and
lifting/carrying. (Id. at 13.) She described her pain as a dull ache, rated at 3/10 at best
and 8/10 at worst. (Id.) Petitioner’s pain “began back in August and came on
gradually.” (Id.) Mr. Mayer further indicated that she had “a similar pain in the past
about 5 years ago of [left] shoulder that responded very well with physical therapy.”
(Id.) On examination, petitioner’s impingement, Empty Can, Hawkin’s – Kennedy,
Neers, painful arc, and infraspinatus tests were positive. (Id. at 14.) Mr. Mayer
assessed petitioner with rotator cuff tendinitis and degenerative changes. (Id. at 16.)
She completed ten physical therapy sessions. 3 (Ex. 4.)
On December 7, 2017, petitioner underwent x-rays of her left shoulder which
revealed no fractures or dislocations, a large osteophyte overlying the inferior portion of
the humeral head; degenerative changes and subchondral cysts in the region of the
ureter and lesser tubercle; mild cortical irregularity overlying the lesser tubercle; no
abnormal soft tissue calcifications; and mild degenerative changes in the
acromioclavicular joint. (Ex. 6, p. 14.)
On December 11, 2017, petitioner presented to Dr. Schultz for a deep tissue
massage and left shoulder adjustment. (Ex. 3, p. 4.) Petitioner complained of shoulder
pain on passive range of motion, especially in flexion at 80 degrees and hyperabduction
at 80 degrees. (Id.) She noted that she could not put dishes away overhead. (Id.) Dr.
Schultz further noted “[c]urious is there a correlation between flu shot and pain /
[decreased range of motion].” 4 (Id.)
3Petitioner’s final treatment session was on January 11, 2018. (Ex. 4, pp. 57-64.) In her discharge
summary Mr. Mayer noted that petitioner’s “shoulder was feeling much better overall. Only slight
discomfort when reaching for heavier items.” (Id. at 62.) She demonstrated “great improvements of [left]
shoulder ROM, strength, stability” and was discharged home with an independent home exercise
program. (Id. at 64.)
4 Subsequently, petitioner returned for 18 additional deep tissue and left shoulder adjustments between
February 27, 2018, and May 14, 2019. (Ex. 3, pp. 4-9; Ex. 12.) By July 23, 2018, Dr. Schultz observed
that petitioner “continues with shoulder exercises, but no real progress seen.” (Id. at 8.) No mention of
petitioner’s vaccination is made in the records from the remaining visits. (See Ex. 3, Ex. 12.)
5
On February 26, 2018, petitioner presented to a rheumatologist, Nicholas
Giuliani, M.D. (Ex. 6, p. 10-12.) She reported that she had shoulder pain for about one
year, and that PT had helped but she still had pain on abduction. (Id.) Petitioner
described the pain as burning, and worse with movement, better with rest. (Id.) She
also complained of right knee pain, and previous injections in both knees. (Id.) Dr.
Giuliani remarked that her ankylosing spondylitis was otherwise doing well on
Remicade. (Id.) On examination, petitioner had limited range of motion in the left
shoulder with fluid in the joint. (Id.) The fluid was aspirated and showed rare white
blood cells and crystals. (Id.) Petitioner was given a steroid injection. (Id.)
On June 4, 2018, petitioner returned to Dr. Rosen for a follow-up for left shoulder
pain. (Ex. 6, pp. 2-4.) Petitioner had a transient response to the bursa steroid injection
in her left shoulder, but the pain returned. (Id.) Dr. Rosen remarked that she had
“known osteoarthritis of both joints” and physical therapy had not been very helpful.
(Id.) On physical examination, petitioner could abduct the left shoulder to only 60
degrees. (Id.) Dr. Rosen noted that “[he] believe[d] the shoulder is significantly affected
with osteoarthritis so a repair of the rotator cuff would not be practical” and referred her
to Dr. Towsen for evaluation for a left total shoulder arthroplasty. (Id.) Dr. Rosen
further observed petitioner’s “ankylosing spondylitis is doing well with Remicade[.]” (Id.)
On June 18, 2018, petitioner presented to Adrienne Towsen, M.D., for a left
shoulder evaluation. (Ex. 5, p. 24-28.) Petitioner described her symptoms as “chronic
non-traumatic.” (Id. at 24.) Dr. Towsen noted that petitioner “had an injection of the left
shoulder in 2015 which gave her good relief and “she notes left shoulder pain for a few
months.” (Id.) Dr. Towsen’s assessment was primary osteoarthritis of the left shoulder.
(Id. at 28.) Her impression was that petitioner had:
[v]ery advanced [degenerative joint disease] in her shoulder and her [range
of motion] is limited. This is her non-dominant arm, but she is still very
functionally limited with this arm. Her pain is constant. She did have an
injection a few year[s] ago which helped her for a while. We discussed
option[s] including TSA. I think she would be a great candidate for this. She
has done PT in the past as well, which helped a little but I think it would only
aggravate it now.
(Id.) Petitioner received an injection in her left shoulder and Dr. Towsen ordered her to
follow-up as needed. (Id.)
On October 8, 2018, petitioner returned to Dr. Rosen complaining of chronic
shoulder pain, reporting that she saw an orthopedic surgeon and “feels she needs a
total shoulder arthroplasty.” (Ex. 10, pp. 20-23.) In the plan portion Dr. Rosen noted no
change to petitioner’s treatment regimen. (Id.) Subsequently petitioner continued with
anti-inflammatory drugs and Remicade for petitioner’s ankylosing spondylitis through
March 2019. (Id. at 5-15.)
6
On January 3, 2020, petitioner presented to Charles L. Getz, M.D., at Rothman
Orthopaedics, complaining of shoulder pain of one week. (Ex. 21, p. 284.) Petitioner
reported that she fell onto her left shoulder getting out of a car, resulting in a dislocation.
(Id.) Dr. Getz observed that petitioner “has had a history of left shoulder problems for
quite sometime and had an injection about five or six years ago.” (Id.) Dr. Getz ordered
and reviewed petitioner’s x-rays showing a reduced shoulder joint and advanced
osteoarthritis / rheumatoid arthritis of the left shoulder. (Id.) On physical examination,
Dr. Getz observed active forward flexion elevation on the left to 30 degrees, neutral
external rotation, significant crepitation through range of motion, normal internal and
external rotation strength testing, normal deltoid strength in the left shoulder, and
decreased active and passive range of motion in the right shoulder. (Id.) Dr. Getz
concluded that petitioner was a candidate for shoulder replacement “based on her
preexisting arthritis.” (Ex. 21, p. 284-85.)
On January 22, 2020, petitioner presented to rheumatologist Michael R.
Lattanzio, M.D., for a follow-up visit. (Ex. 20, p. 7.) Dr. Lattanzio noted that petitioner
fell and dislocated her shoulder and was told she needs a left total shoulder
arthroplasty. (Id.) Petitioner deferred shoulder replacement at this point. (Id.) On
physical examination, he observed no change in her range of motion of the spine. (Id.
at 8.) Petitioner was ordered to return in four months for a follow-up. (Id.)
b. Letter and Testimony from Dr. Schultz
On May 1, 2020, petitioner filed an undated letter written by Dr. Mariclaire
Schultz. (Ex. 17.) Dr. Schultz indicates that her treatment of petitioner began in March
2017. (Id. at 1.) During that time, she was treating petitioner for “typical age-related
issues.” (Id.) Dr. Schultz notes that “[o]n October 5, 2017’s visit, [petitioner] complained
of an acute pain in her left shoulder with marked decrease to her shoulder [range of
motion] (induced pain at the end ROM especially in forward flexion and abduction near
75 degrees; she could reach 90 degrees with my assistance.” (Id.) From that time
forward Dr. Schultz began to adjust petitioner’s left AC joint, encouraged ADL
modification and recommended home/aquatic exercises. (Id.) According to Dr. Schultz,
the onset was “sudden and did not follow the typical pathway of a normal, systemic
degenerative disease.” (Id. (emphasis in original.)) Dr. Schultz “grew pretty concerned
upon hearing that [petitioner] had just received the [flu] shot, especially because it was
done at a pharmacy.” (Id.)
Dr. Schultz also testified at the fact-hearing regarding her records and petitioner’s
treatment. (Tr. at 57-92.) Dr. Schultz testified that in her first evaluation with petitioner
on March 27, 2017, petitioner did not have any significant injuries to her left shoulder.
(Id. at 61.) She testified that petitioner had “limitation bilaterally, both sides of the
shoulder, that, to me, were age-related and pretty typical. It didn’t put up a red flag for
me.” (Id.) Petitioner was not in active pain at that visit, though Dr. Schultz testified that
petitioner “didn’t have full range of motion, but she – it was pretty balanced on both her
shoulder, but no pain.” (Id. at 62.)
7
Dr. Schultz testified that petitioner discussed neck pain with her in her initial visit,
on March 27, 2017, “but that was a history, just to clarify, cervical instability.” (Tr. at 66.)
Dr. Schultz explained that petitioner would have a sore neck if she slept incorrectly, but
nothing alarming. (Id.) In her course of treatment, Dr. Schultz testified that she spends
about 40 minutes on every patient and she “deal[s] with the primary problem that [they]
come in for, if [they] have one, and then [she] work[s] through, from head to toe, every
single joint.” (Id.) In every visit Dr. Schultz works through range of motion exercises on
both sides, “[s]o even though I haven’t written that down, that’s my protocol for years
and years.” (Id. at 67.) Therefore, “if [she] had seen or felt or observed a change in
[petitioner’s] range of motion in her shoulders, [she] would have noted that.” (Id.) Dr.
Schultz confirmed that the lack of any notation indicates that petitioner was not
complaining about shoulder problems. (Id.) On October 5, 2017, Dr. Schultz testified
that petitioner presented with left shoulder discomfort, reporting that she had just
received the flu shot in her left arm a few weeks prior. (Tr. at 68.) At that time “basically
every single range of motion was impeded, and that’s the first time I’ve ever
experienced that with her.” (Id.) Dr. Schultz did not recall having any discussions with
petitioner at this visit, or her visit on November 2, 2017, about the administration of the
vaccine. (Id. at 69-70.) In the November visit, Dr. Schultz testified “[m]aybe I thought,
too, that, you know, it was age-related, that it was taking her a little bit longer to recover
from it.” (Id. at 70.) However, in the November visit she also observed that petitioner’s
active range of motion was between 80 and 90 degrees, which was “something she had
never experienced before with me in any of her prior visits.” (Id. at 71.) Dr. Schultz
testified that this change was atypical, “when somebody would go through a typical
degenerative process or an autoimmune disease, [her] experience over 24 years is that
it’s more of a progressive occurrence, especially with RA…[b]ut this was more this isn’t
getting better at all,” she noted that “it’s only on one side and it’s extreme.” (Id. at 74.)
In her letter Dr. Schultz noted that petitioner’s diagnosis is frozen shoulder
syndrome. (Tr. at 86; Ex. 17.) She testified that frozen shoulder syndrome is “when
you can’t get your arm into full range of motion in almost all ranges of motion, if not all.”
(Tr. at 86.) In contrast, she explained that “[b]ursitis and tendinitis ha[ve] more range of
motion, per se, than a frozen shoulder would.” (Id.) With a rotator cuff tear, Dr. Schultz
opined that “an internal and external rotation will be the greatest deficit that you’ll see.”
(Id.) However, she acknowledged that diagnosing a rotator cuff injury is difficult without
an MRI. (See id.) Dr. Schultz never received or viewed MR images, and petitioner
primarily provided verbal updates on her visits with her other doctors. (Id. at 87.)
On cross-examination, Dr. Schultz acknowledged that crepitus was not noted in
petitioner’s records until March 27, 2018. (Tr. at 89; see Ex. 3, p. 5.)) However, based
on her recollection, Dr. Schultz testified that petitioner’s crepitus began around
November or December 2017. (Tr. at 89.) She also confirmed that throughout
petitioner’s treatment, she adjusted petitioner’s neck for mechanical improvement. (Id.
at 90.) Dr. Schultz described petitioner’s onset of pain following vaccination as sudden.
(Tr. at 82.) However, Dr. Schutlz could not recall petitioner’s description of the onset of
her shoulder pain. (Tr. at 91.) Regarding her October 2017 visit, Dr. Schultz testified
that she “didn’t write anything more specific as to, [] where exactly was she injected. We
8
didn’t have a discussion on that, just that it was painful afterwards and [] that’s all I can
recall.” (Id.) Dr. Schultz further testified that petitioner distinguished the pain at the top
of her shoulder versus the pain in her arm: “[t]he initial pain was more of a – like a
muscle pain and the – as it advanced, it became more of a deeper pain, situated around
the AC joint. So that’s where all of my treatments were.” (Tr. at 92.) Lastly, Dr. Schultz
opined that osteocytes can cause crepitus, however, it would present as a more gradual
presentation. (Id. at 94.)
c. Petitioner’s Affidavits and Testimony
Petitioner filed her first affidavit on November 12, 2018. (Ex. 1.) Prior to
receiving her flu vaccination on August 18, 2017, petitioner avers that she never had
any pain or loss of range of motion in her left shoulder, nor had she suffered any
significant injuries or trauma to her left arm / shoulder “similar to the persistent pain
[she] experienced after this vaccination.” (Id. at 1-2.) Petitioner contends that the pain
began “Immediately, within 48 hours, in [her] muscle after injection.” (Id. at 2.) Over the
next several days, petitioner described pain that “moved from [her] muscle(s) into [her]
arm and shoulder with noticeable reductions of range in motion with certain activities.”
(Id.)
Petitioner filed her second affidavit on May 3, 2019. (Ex. 11.) She avers that the
prior pain mentioned by her physical therapist in records from December 6, 2017,
referred to “neck pain that [she] experienced in 2015.” (Id. at 1.) Petitioner further
avers that she underwent physical therapy for that pain, which helped. (Id.) The pain
she felt in 2015 in her neck was “very different from the pain in [her] arm/shoulder now,
which is in [her] upper arm area.” (Id.) Petitioner states that she received an injection in
2015 for neck stiffness, which was “not related to shoulder pain at all.” (Id.) She
describes difficulty turning her head from side to side at the time she received the
injection in 2015. (Id.) Petitioner also underwent physical therapy beginning in
December 2017 that was not helpful. (Ex. 11, p. 2.) In the summer of 2017, petitioner
avers that she presented to an orthopedic specializing in foot and ankle issues for a torn
ligament. (Id.) Though she may have mentioned her shoulder at those visits, petitioner
stresses that the primary reason for going was for the torn ligament. (Id.)
Petitioner filed her third affidavit on January 16, 2020. (Ex. 15.) Petitioner
additionally avers that she has arthritis in several joints, and from time to time they flare
up, though the pain subsides. (Id. at 1-2.) In contrast, her shoulder pain has never
subsided, but increased. (Id.) Regarding the inconsistencies in her medical records,
petitioner explains that when she saw her doctors, especially early on, she had not
come to realize that her vaccination was the likely cause of her pain and in her visits,
she gave an “approximate time frame” for the onset of her shoulder pain. (Id. at 2.)
Looking back, she avers that “the injection site was unusually high on [her] arm.” (Id.)
Petitioner describes constant, daily, pain and struggles with activities of daily living. (Id.
at 2-3.)
During the hearing, petitioner testified that she was in good health in August of
2017. (Tr. at 11.) She has had arthritis for approximately 20 years, and she “can go
9
weeks, months” without any pain, but suffers occasional flare-ups, in particular, in her
right knee. (Id. at 12.) Petitioner also had a prior history of neck pain—“it was pain
upon turning my head sideways[.]” (Tr. at 17-18.) She testified that she would often
wake up with neck pain and used a special pillow to help while sleeping. (Id.) The
references in her medical records to shoulder pain in 2015, treated with an injection,
referred to injections she received “in the back along the shoulder” for her neck pain.
(Id. (see Ex. 5, p. 28.)) She testified that she did not have any shoulder pain prior to the
vaccination at issue. (Id. at 18-19.) Petitioner also receives Remicade infusions every
four weeks to treat her ankylosing spondylitis. (Id. at 19.) Most recently, petitioner
testified that she underwent back surgery on May 4th, 2021, to treat the degeneration of
discs in her back and the nerves that were being impinged upon—which was causing
pain in the back of her legs from her hips down to her knees. (Id. at 12-13.)
Regarding onset, petitioner testified that her pain and dysfunction began “within a
couple of days after the vaccine.” (Tr. at 14-15.) She described “[t]he soreness after
the vaccination would be a tenderness…[b]ut after a couple of days that you figure you
shouldn’t feel that anymore if you go to use that arm, and it’s a different type of pain. It’s
not the soreness – or tenderness would be a better word. It’s painful.” (Id. at 16.)
Unlike her neck pain, petitioner testified that “[t]he shoulder pain or the arm pain that
I’ve had since the vaccination comes from the top of my arm down to my elbow. I call it
arm pain; some people might call it shoulder pain.” (Id. at 20.) At her first visit post-
vaccination, on August 22, 2017, petitioner testified that she presented to her podiatrist
for foot pain after a heavy weight fell on her foot. (Tr. at 21-22 (see Ex. 9, pp. 28-29))
At the time she was suffering shoulder pain, although she did not discuss it with her
doctor because it was not his expertise. (Tr. at 23.) On October 5, 2017, petitioner
complained of left shoulder pain to her chiropractor, Dr. Shultz. (Id. at 23-24 (see Ex. 3,
p. 3.)) She waited approximately five to six weeks because she “thought it would go
away” and didn’t realize “that it was pain from the vaccine, it was just something that I
thought would go away.” (Tr. at 24.) Petitioner testified, though, that she associated
the pain in her shoulder with the flu shot “within a few days” or “after like 24 hours
[when] it didn’t feel any better, it didn’t go away.” (Id.)
Petitioner testified that she has degenerative changes in her shoulder(s) and was
referred to physical therapy. (Tr. at 26.) The physical therapist performed
manipulations on petitioner’s arm in addition to home exercises. (Id.) She described
the physical therapy as “[n]ot very good.” (Id.) Petitioner’s medical record from
December 6, 2017, indicates that her shoulder pain “began back in August and came on
gradually.” (Id. at 27 (citing Ex. 4, p. 13.)) She testified during the hearing that she
described the onset as gradual “because in the fact that the pain was there, but
gradually as [she] tried to do different things, then [she] realized the limitations.” (Id.)
Regarding the note indicating that she suffered “similar pain in the past about five years
ago,” petitioner testified that the pain she was experiencing was in her neck. (Id. at 28
(see Ex. 4, p. 13.)) When talking about her pain with medical providers, petitioner
testified that when she discussed pain from the vaccination, it was in her lower arm,
from the shoulder down (gesturing to the bicep), whereas oftentimes she referred to
10
shoulder pain or preexisting shoulder pain in the top of her shoulder, it was through the
neck (gesturing along the clavicle). (Id. at 28-29.)
A record from February 26, 2018, indicates that petitioner suffered left shoulder
pain for about one year, or approximately February 2017. (Tr. at 32-33 (see Ex. 6, pp.
10-12.)) Petitioner testified that she was “not sure why it would say that. Possibly when
I was giving that information, I was – my timeline was off.” (Tr. at 33.) She also testified
that it may have had something to do “with the fact that there was a calendar year
change[.]” (Id.) The primary reason for that visit was for her knee(s), petitioner testified.
(Id.) When reporting to a specialist, petitioner typically discussed “[w]hatever the body
part is that [she’s] there to talk about.” (Tr. at 36.) She described going to a doctor for
the first time, “you’ve got paperwork to fill out before he even sees you. That’s when you
can put down everything that is a health issue. But then when you go to see him….you
only get to talk about the part that’s actually bothering you or hurting, whatever is
wrong.” (Tr. at 36.)
On cross-examination, petitioner testified that the reference to “shoulder pain for
the past 2 months” in Dr. Rosen’s report on November 28, 2017, did not refer to the
pain in her shoulder post-vaccination. (Tr. at 45-46.) That reference to shoulder pain,
according to petitioner, was pain located in the “top and back part of [her] shoulder” and
closer to her neck. (Id. at 46-47.) She explained that what “[Dr. Rosen’s] referring to
here is the ankylosing spondylitis is in the spine but it also progresses out to the
shoulder area.” (Id. at 47.) This pain, she testified, was also separate from the neck
pain she experienced in 2015. (Id.) She maintained that the pain caused by her
influenza vaccination was in her upper arm. (Id. at 47-48.) Later petitioner returned to
Dr. Rosen, on June 4th, 2018, who noted that petitioner had osteoarthritis in her
shoulder. (Id. at 48 (see Ex. 6, p. 3.)) Petitioner testified that she had osteoarthritis in
her right shoulder, but not the left shoulder. (Tr. at 48.) She further testified that her
treating doctor(s) recommended total shoulder replacement in her left shoulder, but only
after she dislocated her shoulder after a fall in 2019. (Tr. at 26-27, 48-49; but see Ex. 6,
p. 3 (recommending left total shoulder arthroplasty on 6/4/2018).)
When I asked petitioner why she discussed her prior episode of shoulder / neck
pain from 2015 – in the context of her post-vaccination shoulder pain – she testified that
“it’s two totally different things, two totally different areas, and two totally different pains.”
(Tr. at 54.) Again, when I asked petitioner, why then, she discussed the 2015 injury if it
was distinct, she testified that she “[didn’t] recall doing that,” but suggested that Dr.
Rosen “would have notes in his chart – in my chart that would be sent to him from other
doctors.” (Id.) Lastly, she testified that, in her discussions with Dr. Schultz, petitioner
told her “about the pain and where it was and then telling [sic] her about the flu shot and
she then concurred that that was a possibility that that’s the reason why I was still
having the pain.” (Id. at 55.)
11
III. Witness Statements and Testimony
a. Joesph Gruszka
On January 16, 2020, petitioner filed a statement from her son, Joe Gruszka.
(Ex. 13.) Mr. Gruszka indicated that he resides with petitioner, as well as his wife and
two children. (Id.) He recalls petitioner telling him “right after she received the shot how
much it bothered her and that it was more painful then what she remembered from
previous years.” (Id.) Mr. Gruszka describes petitioner’s difficulty performing daily
functions, including cleaning, dressing, and cooking. (Id.)
Mr. Gruszka also testified during the fact hearing. (Tr. at 97-116.) He testified
that petitioner had prior issues with her neck and recalled her receiving trigger point
injections for her discomfort. (Tr. at 101.) Mr. Gruszka indicated that petitioner had no
prior injuries or previous left shoulder problems prior to the vaccination at issue. (Id. at
102.) He testified that after petitioner’s vaccination, he observed that the injection site
was higher than normal, remarking that the Band-aid was higher up on petitioner’s arm
as compared to his own vaccination he received a few months later. (Id. at 102-03.)
Mr. Gruszka observed petitioner’s decreased range of motion and recalled pinning
petitioner’s shirt up because her shoulder was drooping. (Id. at 104.) He testified that
petitioner’s onset of shoulder pain was “pretty sudden,” meaning that he “notic[ed] it
within, [] a week to, you know, also that she couldn’t do a lot of the chores, menial
tasks.” (Id.)
Mr. Gruszka additionally testified that he transported petitioner to some of her
appointments. (Tr. at 98, 105.) He recalled that during petitioner’s appointments with
Dr. Rosen, for complaints involving her foot, petitioner “sa[id] something about her
shoulder and the vaccine and he didn’t want to discuss that. He was interested in the
foot at that time.” (Id.) Mr. Gruszka testified that, based on his daily observations,
petitioner’s left shoulder problems began “[l]ike the end of August of 2017.” (Id. at 108.)
Regarding his written statement, Mr. Gruszka testified that by ”right after the shot” he
meant that “in the week or two following, [he] noticed that those things were beginning
to take effect.” (Id. at 110.)
b. Cynthia Kuklinski
On January 16, 2020, petitioner also filed a statement from her daughter, Cynthia
Kuklinski. (Ex. 14.) Ms. Kuklinski indicated that “[t]he pain in [petitioner’s] arm started
instantly, and she lost full use of her arm.” (Id.) She states that petitioner’s pain and
limited use did not subside. (Id.) She also describes petitioner’s limitations which
include (1) unable to reach her left arm higher than her wrist, (2) dressing herself is
uncomfortable with limited use of her arm, (3) difficulty bathing herself without full use of
both arms (4) unable to use a brush and hair dryer at the same time (5) can’t put on and
take off a necklace and (6) unable to use a drive-thru bank or restaurant since she can’t
accept items with her left arm through the window. (Id.) According to Ms. Kuklinski,
petitioner’s pain and limited use of her left arm “all started with a flu vaccine.” (Id.)
12
Ms. Kuklinski also testified during the fact hearing regarding petitioner’s
shoulder dysfunction. (Tr. 120-132.) She testified that petitioner complained of
soreness in her arm the day of her influenza vaccination, August 18, 2017, or “[i]f not, it
was the very next day.” (Id. at 120.) Ms. Kuklinski recalled that petitioner “felt like [the
vaccine] was administered like higher up on the arm than she had remembered in the
past.” (Id. at 121.) She testified that in the years prior to vaccination, petitioner had no
left shoulder problems. (Id.) Ms. Kuklinski also testified that she speaks with petitioner
every week, sometimes a couple times a week. (Id.) Petitioner’s pain, she testified, did
not subside with icing; and petitioner complained of pain that was unlike the initial
soreness of the vaccination. (Id. at 123.) Despite the fact that petitioner had several
doctors’ appointments in the first month to two months post-vaccination where she
specifically did not mention shoulder pain to her medical providers, Ms. Kuklinski
testified that petitioner was in pain during that time. (Id. at 125-26.) She testified that
petitioner likely refrained from mentioning her shoulder pain “if it was an appointment for
something else, she was focusing on what that appointment was for or she thought [] it
was going to go away.” (Id. at 126.) Ms. Kuklinski did not accompany petitioner to any
of petitioner’s doctor’s appointments in 2017. (Id.)
IV. Expert Reports 5
a. Petitioner’s Expert, Uma Srikumaran, M.D. 6
Regarding petitioner’s onset, Dr. Srikumaran opined that petitioner consistently
and reliably reported immediate shoulder pain after vaccination to her varied medical
providers, at various clinical settings. (Ex. 24, p. 10.) The first contemporaneous record
to support this timing was on October 5, 2017, during petitioner’s visit to her
chiropractor. (Id. (citing Ex. 3, p. 2.)) Decreased range of motion in her shoulder was
also documented in that visit. (Id. at 10-11.) Next, on November 28, 2017, petitioner’s
rheumatologist noted her shoulder abduction was 160 degrees, and described “painful
impingement,” which Dr. Srikumaran opines is consistent with bursitis or tendonitis, not
5Of note, the expert opinions filed in this case were filed prior to the fact hearing. Accordingly, these
opinions do not reflect consideration of the testimonial evidence. Although the expert reports are
summarized in the interest of completeness, the instant fact finding does not extend to the ultimate
question of vaccine-causation.
6
Dr. Srikumaran serves as an associate professor in the Shoulder Division at the Johns Hopkins School
of Medicine and serves as the Shoulder Fellowship Director and Chair of Orthopaedic Surgery for the
Howard County General Hospital. (Ex. 24, p. 1.) He also serves as the Medical Director of the Johns
Hopkins Musculoskeletal Service Line in Columbia, Maryland. (Id.) Each year Dr. Srikumaran sees
approximately 2500-3000 patients for shoulder issues and performs 400-500 shoulder surgeries annually.
(Id.) He has treated approximately ten to twelve patients with shoulder dysfunction after vaccination in
the past five years. (Id.) Dr. Srikumaran received his medical degree from Johns Hopkins School of
Medicine in 2005. (Ex. 24, p. 1.) He completed his orthopaedic residency at Johns Hopkins Hospital and
completed a shoulder surgery fellowship at Massachusetts General Hospital. (Id.) Dr. Srikumaran is
board certified in orthopaedic surgery. (Id. at 10.) He has published numerous articles in the field of
shoulder surgery, though none specifically related to SIRVA. (Ex. 26, p. 1.) He also peer reviews journal
articles for several orthopaedic journals including The Journal of Bone & Joint Surgery, Orthopedics,
Clinical Orthopedics and Related Research, and The Journal of Shoulder and Elbow Surgery. (Id.)
13
arthritis. (Id. at 11.) On December 6, 2017, petitioner reported that her pain began
back in August 2017, starting gradually. (Ex. 4, p. 14.) Dr. Srikumaran opines that
multiple examination findings from this visit are consistent with rotator cuff tendonitis or
bursitis—including positive impingement signs, painful arc, and positive infraspinatus
tests. (Ex. 24, p. 11.) He further opines that petitioner’s radiographs demonstrate
findings consistent with arthritis as well as rotator cuff pathology, specifically, the
subchondral cysts of the greater and lesser tubercle. (Id.) Dr. Srikumaran explains that
these are chronic degenerative conditions, and while vaccination did not cause these
degenerative conditions, petitioner’s vaccination “was the likely trigger that instigated
inflammation in the bursal tissue leading to exam findings consistent with bursitis and
tendonitis, and later symptoms more consistent with osteoarthritis.” (Id.) Ultimately, he
opines that “the vaccination was the trigger that initiated inflammation in [petitioner’s]
shoulder joint, which we would expect to have underlying age-related degeneration,
causing her asymptomatic state to convert to a symptomatic one.” (Id.)
Dr. Srikumaran opines that the vast majority of patients do not have their pain
(outside of acute traumas/emergency room situations) evaluated within 48 hours. (Ex.
24, p 12.) He explains that most people are hopeful things will improve with time and
basic measures and try several over the counter remedies for many weeks or months
before seeking professional evaluation (particularly when they expect there is to be
some pain as after any vaccination). (Id.) Dr. Srikumaran adds that patients have
different abilities to tolerate pain and there are also costs to consider when seeking
medical care. (Id.) In fact, he stresses that it is quite normal for someone to wait weeks
or even longer prior to formal evaluation as in petitioner’s case. (Id.)
Dr. Srikurmaran opines that whether the pain was sudden or gradual in onset is
not relevant in petitioner’s case because both can be consistent with a SIRVA injury.
(Ex. 24, p. 12.) He opines that the onset of petitioner’s symptoms is consistent with
causation and is reliable based upon his experience and that of the scientific literature.
(Id.) Dr. Srikumaran cites Arias et al., as “the best evidence as to latency of the
development of symptoms” where the authors suggest a possible range from immediate
to 2 months. (Id. (citing L.M. Arias et al., Risk of bursitis and other injuries and
dysfunctions of the shoulder following vaccinations, 35(37) VACCINE 4870 (2017) (Ex.
26.)) Further, Dr. Srikumaran opines that “the actual amount of or type of antigenic
material injected into the bursa may explain the variable symptoms patients present with
as well as the variable timeframes of their presentation.” (Ex. 24, p. 12.) He opines that
it is plausible in some situations for a portion of the vaccination to be injected deep into
the bursa while the remaining portion is injected appropriately into the muscle belly
yielding variations in timing and severity of symptoms. (Id.) Alternatively, Dr.
Srikumaran suggests that individuals are also well known to have varied immune
responses based on genetics, medical co-morbidities, medications, tolerances to pain,
or general well-being (stress) which can also lead to variation in timing and severity of
symptoms. (Id.) Finally, Dr. Srikumaran opines that there were no other injuries or
activities (like a fall or “unusual event”) during in this time period that that may have
alternatively ‘triggered’ the inflammation resulting in petitioner’s symptoms. (Id.)
14
b. Respondent’s Expert, Paul J. Cagle, M.D. 7
Dr. Cagle opines that there is no clear link between the vaccination event and
pain within 48 hours, though petitioner was seen multiple times after the vaccination
without reporting the pain. (Ex. A, p. 8.) Dr. Cagle agrees with Dr. Srikumaran that
there are multiple barriers patients experience to care access, and “in reality a 48 hour
presentation can be difficult,” however, he stresses that these points presume that the
injury is acute / new. (Id.) In petitioner’s case, Dr. Cagle opines that petitioner has
“clear and undisputed preexisting shoulder pathology.” (Id.) Therefore, a failure to
report an onset of pain in relation to her flu vaccine prevents a causal link from being
drawn. Without the causal 48-hour link, Dr. Cagle maintains that the pain petitioner
experienced subsequently in her shoulder is easily and rationally explained by her
severe shoulder arthritis. (Id.) Moreover, two different surgeons suggested petitioner
undergo a total shoulder replacement, a treatment only recommended for long standing
chronic end stage shoulder arthritis – not a recent flare up. (Id. (citing Michael Khazzam
et al., Management of Glenohumeral Joint Osteoarthritis, 28 J. AM. ACAD. ORTHROP.
SURG. 781(2020) (Ex. C); Salvador Israel Macias-Hernandez et al., Glenohumeral
osteoarthritis: overview, therapy, and rehabilitation, 39(16) DISABILITY & REHAB. 1674
(2017) (Ex. D).) Dr. Cagle suggests that petitioner did not have any barriers to care
where, in addition to many other office visits, petitioner was seen at Orthopaedic &
Sports Medicine Associates, LTD, on August 22, 2017 (4 days post vaccination) and on
August 31, 2017 (13 days post vaccination). (Ex. A, p. 8.) At these visits, Dr. Cagle
points out that there is no record of shoulder pain related to a flu vaccine or any
complaints of shoulder pain at all. (Id.) Thus, it is Dr. Cagle’s opinion that the findings
associated with the shoulder pain are not correlated with the vaccination and were not
caused by the vaccination. (Id. at 10.)
V. 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
7
Dr. Cagle serves an as assistant professor and Associate Program Director in the Department of
Orthopaedic Surgery at the Icahn School of Medicine at Mount Sinai. (Ex. A, p. 1.) He is a member of
the American Shoulder and Elbow Surgeons, and a faculty member of an internationally recognized
shoulder surgery fellowship. (Id.) His current practice focuses on the shoulder, representing 95% or
more of the patients and pathology he treats. (Id.) Dr. Cagle conducts clinical, biomechanical, and basic
science research. (Id.) He has presented scientific work nationally and internationally; and has published
over twenty articles related to shoulder injuries and surgery. (Ex. B, pp. 11-12.) Dr. Cagle is a peer
reviewer for the Journal of Orthopaedic Research, Techniques in Shoulder and Elbow Surgery, and the
Journal of Shoulder and Elbow Surgery. ( Id. at 13.) He received his medical degree from Loyola
University Chicago Stritch School of Medicine in 2008. (Id. at 2.) Dr. Cagle completed his orthopaedic
residency at the University of Minnesota Academic Health center and Medical School. (Id.) He also
completed a shoulder and elbow fellowship at Mount Sinai Hospital in New York and is board certified in
orthopaedic surgery. (Id.)
15
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 generally considered 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).
However, there is no presumption that medical records are complete as to all of a
patient’s conditions. Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378, 1382-83
(Fed. Cir. 2021). Afterall, “[m]edical records are only as accurate as the person
providing the information.” Parcells v. Sec’y of Health & Human Servs., No. 03-1192V,
2006 WL 2252749, at *2 (Fed. Cl. Spec. Mstr. July 18, 2006). And, importantly, “the
absence of a reference to a condition or circumstance is much less significant than a
reference which negates the existence of the condition or circumstance.” Murphy v.
Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733 (1991) (quoting the decision
below), aff’d per curiam, 968 F.2d 1226 (Fed. Cir. 1992). The Murphy Court also
observed that “[i]f a record was prepared by a disinterested person who later
acknowledged that the entry was incorrect in some respect, the later correction must be
taken into account.” Id.
Although witness testimony may be offered to overcome the weight afforded to
contemporaneous medical records, it must be “consistent, clear, cogent, and
compelling.” Camery v. Sec'y of Health & Human Servs., 42 Fed. Cl. 381, 391 (1998)
(citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V, 1998 WL 408611, at
*5 (Fed. Cl. Spec. Mstr. June 30, 1998)). Further, the Special Master must consider the
16
credibility of the individual offering the testimony. Andreu, 569 F.3d at 1379; Bradley v.
Sec’y of Health & Human Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993). In determining
whether to afford greater weight to contemporaneous medical records or other evidence
there must be evidence that this decision was the result of a rational determination.
Burns v. Sec'y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993). The special
master is obligated to consider and compare the medical records, testimony, and all
other “relevant and reliable evidence contained in the record.” La Londe v. Sec'y Health
& Human Servs., 110 Fed. Cl. 184, 204 (2013) (citing § 12(d)(3); Vaccine Rule 8), aff'd,
746 F.3d 1334 (Fed. Cir. 2014); see also Burns, 3 F.3d at 417.
VI. Findings of Fact
The parties have requested a fact finding as to “[w]hether petitioner suffered new
or significantly aggravated left shoulder/arm pain within 48 hours of her August 18,
2017, flu vaccination.” (ECF No. 56.) For the reasons discussed below, I conclude that
there is not preponderant evidence that petitioner suffered new or aggravated left
shoulder pain within 48 hours of her vaccination.
After vaccination, petitioner had three orthopedic encounters where shoulder
pain was not recorded before she eventually complained of left shoulder pain to her
chiropractor on October 5, 2017. (Ex. 9, pp. 28-29; Ex. 5, pp. 14-23; Ex. 3, p. 3.)
However, though the record of the October 5, 2017 appointment indicates that petitioner
suffered shoulder discomfort subsequent to vaccination, it does not specify the timing of
onset. (Ex. 3, p. 3.) Petitioner’s second post-vaccination report of shoulder pain was to
her rheumatologist, Dr. Rosen, on November 28, 2017. (Ex. 6, p. 35.) At that time, she
reported pain “for the past 2 months with abduction.” (Id.) Rather than placing onset at
any time close to her vaccination, this would place onset at about the end of September
2017, a time falling shortly before her October 5, 2017 chiropractic appointment and
potentially after the three post-vaccination orthopedic encounters at which she did not
report shoulder pain.
About a week later, petitioner made a third post-vaccination report of shoulder
pain at a December 6, 2017, physical therapy evaluation. (Ex. 4, p. 13.) This time she
indicated that her pain “began back in August and came on gradually.” (Id.) It was also
noted, however, that the pain was “similar” to shoulder pain she had experienced in the
same shoulder five years prior that responded to physical therapy, which would be
around the 2012 timeframe. (Id.) The next day, petitioner presented for a left shoulder
x-ray. (Ex. 5, p. 33.) The impression was degenerative changes of the left shoulder
and the radiologist recorded a clinical history of “recurrent arthritis and pain on
abduction and elevation.” (Id.) Later, on February 26, 2018, petitioner made her fourth
report of shoulder pain to a second rheumatologist, Dr. Guiliani, indicating that at that
time she had been having shoulder pain “for about one year.” (Ex. 6, p. 10.) This would
place onset in about February of 2017, which would be about six months pre-
vaccination.
17
Petitioner first sought an orthopedic evaluation of her shoulder on June 18, 2018,
nearly a year after the vaccination at issue. (Ex. 5, pp. 24-28.) At that time, petitioner
identified her shoulder pain as “chronic non-traumatic” and reported that she had been
in pain for “a few months.” (Id.) Petitioner again noted she had prior treatment for her
left shoulder (a left shoulder injection in 2015). (Id. at 24.) The remainder of petitioner’s
medical records are less informative as to onset. However, in January of 2020,
petitioner later suffered a dislocation of her shoulder after a fall and at that time
reiterated to a second orthopedist that she had a history of left shoulder problems dating
as far back as five or six years prior, i.e. about 2014 or 2015. (Ex. 21, p. 284.)
Several things are significant about the medical records spanning the year
following petitioner’s August 2017 flu vaccination. First, petitioner repeatedly sought
orthopedic care in late August and September of 2017 without reporting her shoulder
condition. 8 Second, although two of the notations of onset are potentially consistent
with petitioner’s allegation (Ex. 3, p. 3; Ex. 4, p. 13), none of the records explicitly place
onset of petitioner’s condition within the two days following her vaccination. Third, and
relatedly, at the majority of these encounters – all but those with her chiropractor –
petitioner did not even identify her vaccination as a relevant factor. In fact, petitioner
instead reported to both her physical therapist and orthopedist that the pain she was
experiencing was similar to pain she had previously experienced years prior. (Ex. 4, p.
13; Ex. 5, p. 27.) She also reported to the orthopedist that her shoulder pain was
“chronic non-traumatic” and the physical therapist recorded that the mechanism of injury
was “overuse.” (Id.) Her radiologist recorded that her pain was due to a history of
recurrent arthritis. (Ex. 5, p. 33.) And, fourth and finally, several of petitioner’s medical
records identify periods of onset that are incompatible with petitioner’s allegations. (Ex.
6, p. 35 (placing onset about a month post-vaccination); Ex. 6, p. 10 (placing onset
about 6 months pre-vaccination); Ex. 5, p. 24 (placing onset “a few months” prior to
June of 2018). Thus, considered as a whole, the medical records do not support onset
of shoulder pain within 48 hours of vaccination.
An additional consideration arises in that petitioner’s chiropractor, Dr. Schultz,
also testified. 9 Dr. Schultz is the sole treater to whom petitioner reported her shoulder
8 Given that petitioner was presenting for other complaints relating to her foot and ankle, this is not
dispositive. There is no presumption that petitioner’s orthopedic encounter records are complete as to
conditions unrelated to the problem for which she was seeking treatment. Kirby v. Sec'y of Health &
Human Servs., 997 F.3d 1378, 1382-83 (Fed. Cir. 2021). However, as explained further below, petitioner
is also unpersuasive in seeking to explain why she did not initially report her shoulder pain to her treaters
at Premier Orthopedics.
9 While treating physician opinions expressed in written records are considered very often in this program,
treating physician testimony is comparatively rare. Although special masters are obligated to consider
only medical opinion that has a reliable basis, cross-examination of treating physicians is generally not
considered necessary because their own medical records are in themselves generally considered facially
trustworthy. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1383 (Fed. Cir. 2009) (citing
Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).) However, when a
treating physician offers a statement that is not contemporaneous to events and is not within the context
of diagnosis and treatment, a special master does not err in concluding that it is not entitled to the same
deference as contemporaneous medical records, even records created by the same physician. See Milik
18
pain as a post-vaccination phenomenon. (Ex. 3, p. 3.) Additionally, Dr. Schultz
specifically questioned in her notes whether there was any correlation between
petitioner’s flu vaccine and her shoulder injury. (Ex. 3, p. 4 (noting “[c]urious is there a
correlation between flu shot and pain/dec r.o.m.”).) Ultimately, however, Dr. Schultz’s
testimony did not bolster petitioner’s allegations with regard to onset. Dr. Schultz
testified at length regarding the fact that petitioner’s presentation was different pre- and
post-vaccination; however, petitioner’s first post-vaccination appointment with Dr.
Schultz was two months after her prior August 7, 2017 encounter and more than a
month and a half post-vaccination, meaning she was not in a position to personally
observe the onset of petitioner’s shoulder pain as it developed. (Ex. 3, p. 3.) With
regard to onset of left shoulder pain, Dr. Schultz indicated that petitioner had
experienced a “sudden” onset; however, she ultimately testified as follows:
Q. When you were answering Mr. Webb’s questions, he asked you about
your characterization of Petitioner’s – the onset of Petitioner’s pain as
being sudden.
A. Yes.
Q. And I understood your answer to be focusing primarily on your
observations comparing your initial evaluation of her range of motion and
the range of motion when she first presented to you with this problem.
Can you recall anything about how Petitioner described the onset of this
shoulder pain when she first saw you?
A. Honestly, no. I don’t remember specifics since it’s been a while. The
only thing that – again, you’re referring to December, right, when we
talked about things in December?
Q. I was thinking of October when she first came to you after the
vaccination.
A. She – yeah, I didn’t – I didn’t write anything more specific as to, you
know, where exactly was she injected. We didn’t have a discussion on
that, just that it was painful afterwards and – yeah, that’s all I can recall.
(Tr. at 90-91.)
Thus, Dr. Schultz could not meaningfully add to her contemporaneous records in
terms of identifying the onset of petitioner’s condition. And, as discussed above, when
considering the contemporaneous medical records as a whole, including Dr. Schultz’s
records, there is not preponderant evidence of onset occurring within 48 hours of
vaccination. Dr. Schultz’s characterization of petitioner’s shoulder pain as “sudden” is
v. Sec’y of Health & Human Servs., 822 F.3d 1367, 1381-82 (Fed. Cir. 2016). For example, in Milik, a
treating physician recorded in his initial treatment record that a child’s developmental delay had been
“longstanding” in contrast to an “acute” onset of limping. Id. In a much later letter written to the court, the
doctor sought to recharacterize the word “longstanding” as meaning in effect only preexisting, which the
special master thought incompatible with the original record that contrasted “longstanding” against
“acute.” Id. The Federal Circuit held that it was not error for the special master to credit the plain
meaning of the original treatment record over the physician’s subsequent reinterpretation of the notation.
Id. Accordingly, Dr. Schultz’s testimony is subject to the same credibility determination as any other
witness, as explained in the preceding section.
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not supported by her own contemporaneous records and is directly contradicted by
other of petitioner’s contemporaneous medical records. (See Ex. 4, p. 13 (petitioner
reporting “[p]ain began back in August and came on gradually”).) And again, pertinent
to this point, Dr. Schultz did not actually see petitioner until October 5, 2017 – two
months since she had last seen her and more than a month and a half post-vaccination.
Moreover, petitioner confirmed in her own hearing testimony that she did perceive the
onset of her shoulder condition to be gradual and confirmed that she had reported a
gradual onset to her physical therapist. (Tr. 27.)
Contrary to the above, petitioner testified in accordance with her allegations that
she did experience shoulder pain within 48 hours of vaccination. (Tr. at 14-15.) In that
regard, petitioner attempted to explain away the medical records incompatible with her
claim. (Id. at 26-36, 45-50.) However, this testimony was not persuasive enough to
overcome the evidentiary weight of the contemporaneous medical records.
Petitioner testified that she did not initially report her shoulder pain on August 22,
2017, because she was seeing a podiatrist at that time, suggesting her shoulder
complaint was outside his expertise. (Tr. at 21-22.) Petitioner suggested that when
seeing a specialist she typically limited her discussion to the specific body part
prompting the appointment. (Id. at 33.) However, though she was seeking care for her
foot and ankle, petitioner was at that time seeking treatment at an orthopedic and sports
medicine practice. (See Exs. 5, 9, passim.) Moreover, she did ultimately seek
treatment for her shoulder condition from that same practice group and, contrary to her
stated rationale, did raise her shoulder complaint with her rheumatologist despite being
there to be seen with regard to knee pain. (Ex. 5, p. 24; Ex. 6, p. 35.) Additionally,
petitioner confirmed her ability to get an appointment with this orthopedic practice group
within one to two weeks. (Tr. at 22.) Accordingly, even if petitioner did refrain from
raising her shoulder pain because her specific appointment was in relation to her foot,
she does not appear to have been prevented from seeking a separate appointment for
her shoulder during this period.
Petitioner also indicated in her affidavit that the inconsistencies in her earlier
records are explained by the fact that she had not yet come to realize that her
vaccination was the likely cause of her pain. (Ex. 15, p. 2.) She averred that
I realize there is some perceived inconsistencies regarding the start of my
pain following the vaccine based on people’s review of my medical records.
When I was seeing my doctors, especially early on, I had not come to realize
that the vaccination was the likely cause of my pain. I certainly was not
focused on the exact date when everything started, I gave an approximate
time frame with the goal of receiving relief.
(Ex. 15, p. 2.) During the hearing, however, petitioner testified:
Q. Did you associate the pain in your shoulder with the flu shot from the
very beginning?
20
A. Within a few days, I did.
Q. At what point did you determine that this was not the normal pain after
a vaccination that you’ve experienced in years past?
A. When after like 24 hours it didn’t feel any better, it didn’t go away.
(Tr. at 24-25.)
Thus, during the hearing petitioner directly contradicted her previously stated
rationale for having provided differing periods of onset to her treating physicians.
Moreover, petitioner’s medical records reflect that these inconsistencies occurred after
she had raised a suspicion of post-vaccination shoulder pain to Dr. Schultz. That is,
after noting the fact of her prior vaccination when reporting her symptoms to Dr. Schultz
on October 5, 2017, petitioner subsequently reported differing periods of onset to three
different doctors and a physical therapist without ever again having her vaccination
recorded as potentially relevant. (Ex. 4, p. 13; Ex. 5, p. 24; Ex. 6, pp. 10, 35.)
Moreover, even apart from timing, petitioner offered histories including factors pointing
away from her vaccine as causally relevant. (See Ex. 4, p. 13 (reporting gradual onset
due to chronic symptoms, noting prior similar shoulder pain five years prior, and
identifying overuse as mechanism of injury); Ex. 5, p. 24 (reporting symptoms as
“chronic non-traumatic” and reporting relief from a prior left shoulder injection). Thus,
even if crediting that portion of petitioner’s testimony expressing an initial hesitation in
attributing her pain to her vaccination, that testimony still does not explain the histories
contained in her medical records.
Petitioner also sought in her testimony to distinguish her reports of post-
vaccination shoulder pain from other reports of shoulder pain in her records that she
contends referred instead to neck pain. (Tr at 28-30.) In her affidavit, petitioner
indicated that her 2015 complaint was “neck stiffness,” suggesting that “[i[t was not
related to shoulder pain at all. I had difficulty turning my head from side to side . . .” (Ex.
11, p. 2.) During the hearing, however, petitioner’s description of what constituted her
prior neck pain was somewhat ambiguous as petitioner confirmed that by “neck” she
really meant the top of her shoulder in the area of the clavicle. (Tr. 29.) Moreover,
petitioner does acknowledge experiencing flares of arthritis in her shoulder. (Tr. at 20-
21.)
In any event, regardless of how petitioner subjectively characterized her pain
anatomically in testimony, petitioner is unpersuasive in suggesting that her records from
the post-vaccination period can be parsed in this manner. Notable to this point,
petitioner reported her prior history of shoulder pain only to her orthopedists and
physical therapist (who were treating her shoulder specifically) rather than to either her
chiropractor or rheumatologists (who were treating cervical instability and ankylosing
spondylitis). (Compare Ex. 4 (Mr. Mayer (physical therapist)), Ex. 5 (Dr. Towsen), Ex.
21 (Dr. Getz) and, Ex. 3 (Dr. Schultz); Ex. 6 (Drs. Rosen and Giuliani).) Additionally,
her physical therapist explicitly indicated that the current episode of what was described
as shoulder pain was “similar” to the prior episode. (Ex. 4, p. 13) Petitioner’s records
also confirm that she had osteoarthritis and reduced range of motion inclusive of her left
21
shoulder prior to vaccination (Ex. 3, p. 2; Ex. 5, p. 30 10) and her own testimony
explained that she experienced occasional flares of her arthritis in her shoulder (Tr. at
20-21). Further to these points, as discussed above, petitioner did not confidently or
consistently identify a clear timing of onset. Instead, petitioner described onset as
gradual and reported her condition as chronic. Furthermore, she mostly did not discuss
the fact of her vaccination when seeking care and she referenced her prior history of left
shoulder pain repeatedly. 11
Nonetheless, petitioner testified as follows:
Q. Okay. Do you think discussing your prior episode of shoulder/neck pain
from 2015 is helpful in determining what is happening with your shoulder
post-vaccination?
A. It is helpful – it’s two totally different things, two totally different areas,
and two totally different pains.
Q: Right. If they are distinct, why bring them up when you’re giving the
history to the doctor is my question?
A. I don’t recall doing that. In other words, if its – if it’s Dr. Rosen, he would
have notes in his chart – in my chart that would be sent to him from other
doctors. It would be the same with my primary.
(Tr. at 54.)
However, the notations at issue are included in sections of the medical record
dealing with either subjective complaints or the history of present illness and are
interspersed with statements directly attributed to petitioner herself and/or confirming
she discussed her preexisting osteoarthritis with her physicians at the time, strongly
suggesting these notations originated from petitioner’s own provided history rather than
being copied over from prior notes. (Ex. 4, p. 13 (noting that “[p]atient denies any
clicking/popping. Patient has had a similar pain in the past about 5 years ago of the L
shoulder that responded very well with physical therapy. Patient denies any
numbness/tingling in LUE . . .” (emphasis added)); Ex. 5, p. 24 (“She had an injection of
the left shoulder in 2015 which gave her good relief. She notes left shoulder pain for a
few months” (emphasis added)); Ex. 21, p. 284 (noting in “HPI” that “[s]he has a history
of left shoulder problems for quite sometime [sic.] and had an injection about five or six
10 Although the x-ray confirming degenerative changes within petitioner’s left shoulder post-dates
petitioner’s vaccination, both parties’ experts agree that petitioner had preexisting osteoarthritis, though
petitioner’s expert opined it was asymptomatic. (Ex. A, p. 6; Ex. 24, p. 10.) Respondent’s expert more
specifically explains that this is confirmed by the December 7, 2017 x-ray. (Ex. A, p. 6.) Notably, the
clinical history associated with the x-ray is that petitioner presented “with a history of recurrent arthritis
and pain on abduction and evaluation. No trauma.” (Ex. 5, p. 30.)
11 To be clear, there is evidence of record suggesting petitioner also had a history of neck pain. (Ex. 3,
pp. 1-11.) However, the issue presented in this case is that petitioner is explicitly and specifically recorded
by her treating physicians as reporting prior shoulder pain at key medical encounters. Petitioner is
unpersuasive in suggesting her medical records should be reinterpreted so that the specific references to
shoulder pain are understood as neck pain, but this does not mean petitioner never had any neck pain.
22
years ago” and in “Notes” stating that “I discussed with the patient that she is a
candidate for shoulder replacement based on her preexisting arthritis”).) Further, these
reports of prior shoulder pain were made to three separate treaters at three separate
facilities. (Ex. 4, p. 13 (Mr. Mayer of Excel Physical Therapy), Ex. 5, p. 24 (Dr. Towsen
of Premier Orthopedics and Sports Medicine), and Ex. 21, p. 284 (Dr. Getz of Rothman
Orthopedics).) Additionally, petitioner’s medical records reflect that she continued to
report a prior history of left shoulder pain dating back to 2015 even after filing her
affidavit in this case purporting to clarify that her prior history was of neck pain rather
than shoulder pain. (Compare Ex. 11 (affidavit dated May 2, 2019) and Ex. 21, p. 284
(orthopedic encounter dated January 3, 2020).) Petitioner told Dr. Getz in January of
2020 that she had prior left shoulder problems dating back five or six years. (Ex. 21, p.
284.) This appointment was unequivocally in treatment of her shoulder as it was in
follow up to a previously reduced dislocation. Thus, it is clear that petitioner is
explaining her condition to the court in a manner inconsistent with how she is continuing
to discuss her condition with her treating orthopedist. For all these reasons, petitioner is
unpersuasive in asserting that her reports of prior left shoulder pain are in any way
misstated or otherwise appear in her records by error.
Petitioner also provided testimony from her children. Ms. Kuklinksi, who speaks
to petitioner once or twice a week, testified that petitioner complained of post-
vaccination pain either the day of the vaccination or the next day. (Tr. at 120-21.) Ms.
Kuklinksi, who did not accompany petitioner to any of her medical appointments in
2017, further testified that petitioner likely would not have reported her shoulder pain if
her appointment was for something else. (Id. at 126.) However, Joseph Gruszka, who
lives with petitioner and accompanied her to at least some medical appointments,
testified that petitioner did raise her shoulder pain at an appointment initially made for a
different condition. (Id. at 105.) He also testified that while petitioner had seemingly
normal post-vaccination discomfort, he first noticed petitioner having difficulty with her
shoulder within a week. (Id. at 104.) Petitioner herself also testified that she
experienced typical post-vaccination tenderness that was separate from the painfulness
she described as arising “after a couple of days.” (Id. at 16.) This testimony does not
have the consistency necessary to outweigh the competing medical record evidence.
Finally, an additional question is whether the expertise reflected in petitioner’s
expert medical opinion helps to inform the factual question at issue. Petitioner’s expert,
Dr. Srikumaran, opines that petitioner’s preexisting osteoarthritis is unlikely to explain
her post-vaccination symptoms. (Ex. 24, passim.) However, his assessment is based
on a mistaken assumption that “Ms. Gruska (sic.) consistently and reliably reports
immediate shoulder pain after vaccination to her varied medical providers, at various
clinical settings including office and treatment visits over a long period of time . . .” (Id.
at 10.) With regard to the above-discussed reports of prior shoulder injections from
2015, Dr. Srikumaran does provide evidence that petitioner’s October 6, 2014, Sodium
hyaluronate injection (Ex. 18, p. 49) is not approved for use in the shoulder; however,
he indicates that petitioner’s October 10, 2014, methylprednisolone injection (Ex. 18, p.
53) is routinely injected in all joints of the body. (Ex. 24, p. 10.)
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VII. Conclusion
In light of all of the above and considering the record as a whole, the evidence
preponderates in favor of a finding that petitioner experienced prior episodes of left
shoulder pain and also experienced a gradual onset of similar left shoulder pain with an
indeterminate initial onset occurring sometime between late August and early October
of 2017. However, there is not preponderant evidence that onset of left shoulder pain,
whether new or aggravated, occurred within 48 hours of her August 18, 2017,
vaccination.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
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