In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: February 21, 2018)
************************* UNPUBLISHED
BONNIE FORMAN-FRANCO, *
*
Petitioner, * 15-1479v
v. *
* Chief Special Master Dorsey
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Finding of Fact; Influenza (“flu”) Vaccine;
* Shoulder Injury Related to Vaccine
Respondent. * Administration (“SIRVA”).
*
*************************
Paul Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Adriana Teitel, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON FACTS1
On December 7, 2015, Bonnie Forman-Franco (“petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10,
et seq., (the “Vaccine Act”) or (“Program”). Petitioner alleges that she suffered a shoulder injury
as the result of an influenza (“flu”) vaccination she received on December 30, 2013. Petition at
Preamble.
Prompting this fact ruling is a status report filed on June 12, 2017, in which petitioner
requested a fact hearing to determine the onset of petitioner’s shoulder injury. Status Report
dated June 12, 2017 (ECF No. 39). The undersigned granted petitioner’s request, and a fact
hearing was held on August 15, 2017. After a review of the record as a whole, a fact hearing,
and for the reasons set forth below, the undersigned finds by preponderant evidence that the
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This decision will be posted on the website of the United States Court of Federal Claims’
website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means the Decision will be available to anyone with access to the internet. As provided by
42 U.S.C. § 300aa-12(d)(4)B), however, the parties may objection to the published Decision’s
inclusion of certain kinds of confidential information. Specifically, Under Vaccine Rule 18(b),
each party has 14 days within which to request redaction “of any information furnished by that
party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would
constitute a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the
whole decision will be available to the public in its current form. Id.
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onset of Ms. Foreman-Franco’s alleged shoulder injury occurred within 48 hours of her influenza
vaccination on December 30, 2013.
I. Procedural History
In the petition filed on December 7, 2015, petitioner asserts that she received a flu
vaccine in her left shoulder on December 30, 2013, at the office of her primary care doctor, Dr.
Mark Meltzer. Petition at ¶ 3; Tr. 6. Petitioner also filed a statement of completion on
December 7, 2015. Statement of Completion dated Dec. 7, 2015 (ECF No. 2). This case was
initially assigned to the Chief Special Master via the Special Processing Unit (“SPU”), and the
initial status conference was held on January 13, 2016.
After the status conference, petitioner identified and filed additional medical records and
an amended statement of completion, and respondent filed a Rule 4(c) Report on August 24,
2016, arguing that petitioner’s request for entitlement to compensation be denied. Respondent’s
Report (“Resp. Rep.”) dated Aug. 24, 2016 (ECF No. 23) at 1. During a subsequent status
conference on September 1, 2016, petitioner was ordered to file an affidavit detailing the onset of
her alleged injury. Order dated Sept. 1, 2016 (ECF No. 24). Petitioner filed an affidavit and
additional medical records on October 18, 2016. Notice of Filing dated Oct. 18, 2016 (ECF No.
25).
A status conference was held on September 1, 2016, during which the parties discussed
the possibility of a litigative risk settlement. The parties were ordered to file a status report
updating the Court as to the progress of their settlement discussions. Order dated Oct. 19, 2016
(ECF No. 26). Petitioner filed a status report on November 18, 2016, stating that she had
communicated a demand to respondent and awaited a response. Status Report dated Nov. 18,
2016 (ECF No. 27). Respondent then requested updated primary care records, which petitioner
filed, along with an amended statement of completion, on March 8, 2017.
On April 7, 2017, respondent filed a status report in which he stated that after reviewing
petitioner’s affidavit and additional medical records, he was not interested in settlement. Status
Report dated April 7, 2017 (ECF No. 36). A status conference was held on May 18, 2017,
during which the OSM staff attorney reported the undersigned’ recommendation to have a fact
hearing to address issues related to the onset of petitioner’s alleged injuries. Order dated May
18, 2017 (ECF No. 37).
A fact hearing occurred before the undersigned in Washington, D.C., with petitioner and
her counsel attending via videoconference, on August 15, 2017. After the hearing, petitioner was
ordered to file outstanding medical records, a corrected affidavit regarding onset, and a status
report confirming that all medical records had been filed. Order dated Aug. 15, 2017 (ECF No.
43). Petitioner filed an amended affidavit on September 13, 2017, and she filed a motion to issue
a subpoena for additional medical records on September 22, 2017. Petitioner filed additional
medical records on September 25, 2017, and October 16, 2017. After a second motion for a
subpoena was filed on November 15, 2017, petitioner filed additional medical records on
January 18, 2018.
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This case was transferred from SPU to the undersigned’s non-SPU docket on December
20, 2017, as the undersigned determined that the case no longer fit the criteria for SPU. Order
dated Dec. 20, 2017 (ECF No. 57). The parties did not file any posthearing briefs. The
undersigned now issues this fact ruling.
II. Factual History
Petitioner’s medical history prior to her 2013 flu vaccination is significant for both left
and right shoulder injuries and rotator cuff surgeries. On March 14, 2006, petitioner visited Dr.
Alpert, her orthopedist, with complaints of pain in her right shoulder after a fall. Pet. Ex. 9 at 11.
Dr. Alpert ordered an MRI, which revealed a “small tear of the supraspinatus tendon.” Id. at 11,
20. Physical therapy was recommended, and petitioner underwent right shoulder surgery on
April 20, 2006. Id. at 16-17. Petitioner had a follow up appointment on July 24, 2006, during
which she reported a full range of motion and good shoulder strength, despite some pain. At an
appointment on September 25, 2006, she reported experiencing bicep tendonitis a few weeks
prior, but her condition had since improved. Id. at 6-7.
Petitioner visited Dr. Alpert on July 30, 2007, this time with complaints of pain in her left
shoulder after she had fallen down the stairs. Pet. Ex. 9 at 5. A subsequent MRI showed “a full
thickness tear of the rotator cuff, both supraspinatus and infraspinatus.” Id. at 5, 23. On August
3, 2007, petitioner had rotator cuff repair surgery and an open subacromial decompression on her
left shoulder. Id. at 18-19. At her post-operative appointment on November 19, 2007, petitioner
had regained full range of motion and was doing well. Id. at 2.
The medical records do not document that petitioner experienced any other symptoms in
either of her shoulders until December 30, 2013, after she received a flu vaccination in her left
arm at the office of her primary care doctor. Pet. Ex. 1 at 7. Her medical records, however, are
silent as to the problem until May 10, 2014, when she visited her chiropractor, Dr. Weinstock,
complaining of left shoulder pain. Pet. Ex. 8 at 2. Around this time, petitioner visited her
orthopedist, Dr. Kerker, with a chief complaint of “right hip and low back pain.” Pet. Ex. 10 at
1. At that visit, petitioner stated that she had been experiencing pain in her lower back, down her
right leg, and in her buttock for the last few months. Id. Dr. Kerker’s impression was “1.
Lumbar Degenerative Disk Disease [and] 2. Right hip pain.” Id. at 2. Physical therapy and
treatment with anti-inflammatory medications was recommended. Id. During this visit,
petitioner did not report experiencing shoulder pain.
Petitioner saw Dr. Schwartz, an orthopedist, on July 28, 2014, complaining of left arm
pain for the last seven months. Pet. Ex. 2 at 1. At this visit, petitioner also had limited range of
motion, and Dr. Schwartz ordered an MRI, which was performed on July 31, 2014. Pet. Ex. 4 at
1-2. The radiologist’s impression was “status post rotator cuff tear with focal separation of the
posterior fibers of the supraspinatus tendon which may be due to prior surgery or less likely a
retear…” Id. Petitioner saw Dr. Schwartz for a follow up visit after her MRI, and he
administered a cortisone injection and recommended physical therapy. Pet. Ex. 2 at 4.
Petitioner returned to Dr. Schwartz on August 14, 2014, complaining that she had
experienced severe bicep pain when getting up from a chair a few days before. Pet. Ex. 2 at 5.
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She was referred to physical therapy, which she attended three times in August 2014. Pet. Ex. 5
at 7-12. Petitioner saw Dr. Schwartz again on October 20, 2014, during which she reported both
left shoulder soreness and pain in her lumbar and right leg. Pet. Ex. 2 at 7. Dr. Schwartz
recommended that petitioner undergo arthroscopic surgery on her left shoulder for rotator cuff
repair. Id. at 8. He also prescribed Medrol and physical therapy for her back and leg pain. Id.
Petitioner had arthroscopic surgery on her left shoulder to repair her rotator cuff on
January 29, 2015. Pet. Ex. 2 at 11-12. At a follow up with Dr. Schwartz on May 8, 2015,
petitioner stated that she was about 80% improved but that she still experienced some
discomfort. Pet. Ex. 2 at 16. She continued to attend physical therapy. Pet. Ex. 5 at 14-38.
During the hearing on August 15, 2017, petitioner testified regarding the onset of her
injury. Petitioner stated that within two hours of receiving the flu vaccine on December 30,
2018, she “was having a great deal of difficult manipulated [her] arm …” Tr. 8. She took Motrin
to ease her pain, but the next day she had to ask her office manager, Michael Valasky, to assist
her with her rounds at work. Id. at 9. She stated that she did not immediately report the pain to
her doctor’s office because she had never had a flu shot before and thought “this it was not
uncommon to have some discomfort.” Id. at 10.
Mr. Valasky also testified during the hearing on August 15, 2017. He stated that on
December 31, 2013, the day after petitioner’s flu shot, he assisted her with removing her jacket
and recalled her complaining about her shoulder hurting. Tr. 52. He testified that on that day,
petitioner “appear[ed] to be [in] much more pain than a usual shot would give.” Id. at 56. He
said that he had to continue assisting her with “day to day activities” at work, because she was
unable to carry them out herself due to her shoulder injury. Id. at 53; 58-59.
III. Parties’ Arguments
In his Rule 4(c) Report, respondent argues that petitioner is not entitled to compensation.
Resp. Rep. at 2. Respondent also argues that petitioner’s onset was not immediate. To support
his argument, respondent states that petitioner’s treating doctors believe that her complaints
about left shoulder pain were the result of a retear of her previously surgically repaired rotator
cuff. Id. at 9. Respondent notes that petitioner had prior injuries to her left shoulder for which
she underwent rotator cuff surgery on August 3, 2007. Id. at 2. Respondent also points out that
petitioner did not associate the onset of her left shoulder pain with the flu vaccination she
received until almost seven months later, at an appointment with Dr. Schwartz on July 28, 2014.2
Id.
In her affidavit, petitioner alleges that “within two hours” of her flu vaccination on
December 30, 2013, she felt “aching pain” in her left shoulder. Petitioner’s Exhibit (“Pet. Ex.”)
16 at 1; Tr. 8. Although the pain was not initially severe, the pain worsened within 24 hours,
when petitioner could not comfortably lift her arm. Id.; Tr. 8. Petitioner testified that the day
after she had the flu shot, she asked her office manager to assist her with seeing patients because
2
The records, however, show that on May 10, 2014, approximately four months after her flu
vaccination, petitioner presented to her chiropractor, Dr. Weinstock, with complaints of pain in
her left shoulder. Pet. Ex. 8 at 2.
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she was unable to move her left arm. Tr. 9. For the next several months, petitioner limited the
use of her shoulder and treated her pain with naproxen, ibuprofen, and acetaminophen in hopes
that the pain would resolve on its own. Pet. Ex. 16 at 2. Despite limiting the use of her arm and
taking over the counter pain killers, petitioner stated that by May 2014, “[her] shoulder pain had
become worrisome enough that [she] sought medical attention.” Id. at 3.
IV. Discussion
a. Applicable Legal Standard
A petitioner must prove, by a preponderance of the evidence, the factual circumstances
surrounding her claim. 42 U.S.C. § 300aa-13(a)(1)(A). To resolve factual issues, the special
master must weigh the evidence presented, which may include contemporaneous medical records
and testimony. See Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993)
(explaining that a special master must decide what weight to give evidence including oral
testimony and contemporaneous medical records). Contemporaneous medical records are
presumed to be accurate. See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528
(Fed. Cir. 1993). To overcome the presumptive accuracy of medical records testimony, a
petitioner may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez
v. Sec’y of Health & Human Servs., 110685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr.
April 10, 2013) (citing Blustein v. Sec’y of Health & Human Servs., 90-2808V, 1998 WL
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).
b. Evaluation of the Evidence
Here, the undersigned finds that there is preponderant evidence to support that the onset
of petitioner’s left shoulder pain occurred within 48 hours of her December 30, 2016 flu
vaccination. Because this type of injury, SIRVA, is rare, it is not unusual to see the lack of
documentation that exists in petitioner’s case. The undersigned finds petitioner’s affidavit and
testimony to be credible. Petitioner’s clinical course and diagnosis is consistent with a SIRVA
injury. Additionally, the supplemental affidavit and testimony submitted by petitioner and Mr.
Valasky offer corroboration of her claim that she experienced left shoulder pain after receiving
the flu vaccination on December 30, 2013, and the following day, December 31, 2013.
Although petitioner did not initially complain to her treating doctors of left shoulder pain
following her flu vaccination, the undersigned finds that this is reasonable because, based on her
experience with similar cases in the Program, it is not uncommon for a petitioner to delay
seeking treatment for a shoulder injury after vaccination. Petitioner delayed seeking treatment
for the injury by taking over the counter anti-inflammatory medication and hoping that the pain
would cease. Pet. Ex. 16 at 2. It is reasonable that petitioner did not mention the pain she felt in
her shoulder to her proctologist, Dr. Bute, during her February 17, 2014 colonoscopy. Pet. Ex. 1
at 44. Petitioner also testified that her shoulder pain was not a primary concern at the visits with
her orthopedist in April 2014, as she was having a great deal of back pain as the result of
stenosis. Tr. 20. While these entries are not helpful to petitioner, they are also not inconsistent
with her assertions. Additionally, petitioner complained to her chiropractor in May 2014 that she
had been experiencing pain in her left shoulder for the past four months. Pet. Ex. 8 at 2.
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Medical records from petitioner’s visit to Dr. Schwartz on July 28, 2014, indicate that petitioner
had been experiencing left arm pain for the last seven months. Pet. Ex. 2 at 1. This is temporally
consistent with petitioner’s testimony regarding onset.
Moreover, petitioner testified that she did not immediately notify her primary care
physician of her shoulder pain because she had “never had the [flu] shot before [and thought]
that it was not uncommon to have some discomfort.” Tr. 10. The undersigned credits the
explanation given by petitioner in her affidavit and during her testimony that she experienced
pain within two hours of receiving the vaccination but attributed it to a normal outcome
following the vaccination and thus did not seek treatment sooner. Pet. Ex. 16 at 2; Tr. 10. The
undersigned also credits the testimony of petitioner’s office manager, Michael Valasky, who
testified that he had to assist petitioner in taking off her jacket on December 31, 2013, the day
after she received the influenza vaccination, due to pain in her shoulder. Tr. 52.
V. Conclusion
Thus, the undersigned finds, based on the record as a whole, that the onset of petitioner’s
symptoms occurred within 48 hours of petitioner’s flu shot on December 13, 2013.
A scheduling order will issue directing the parties as to further proceedings.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
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