In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-598V
Filed: January 31, 2019
Unpublished
****************************
ROSS VINOCUR, *
*
Petitioner, * Ruling on Entitlement; Table Injury;
* Influenza (Flu) Vaccine; Shoulder
v. * Injury Related to Vaccine Administration
* (SIRVA); Findings of Fact;
SECRETARY OF HEALTH * Onset of Petitioner’s Shoulder Pain;
AND HUMAN SERVICES, * Special Processing Unit (SPU)
*
Respondent. *
*
****************************
Shaelene Wasserman, Muller Brazil, LLP, Dresher, PA, for petitioner.
Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for
respondent.
FINDINGS OF FACT AND RULING ON ENTITLEMENT1
Dorsey, Chief Special Master:
On May 4, 2017, Ross Vinocur (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et
seq.,2 (the “Vaccine Act” or “Program”) for a left shoulder injury, diagnosed as adhesive
capsulitis, caused in fact by the influenza vaccination he received on November 9,
2014. Petition at 1, ¶¶ 2, 8, 10 (ECF No. 1). The case was assigned to the Special
Processing Unit (“SPU”).
1The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
means the ruling will be available to anyone with access to the internet. In accordance with Vaccine
Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the
disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, undersigned is required to post it on the United States Court of Federal Claims' website in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management
and Promotion of Electronic Government Services).
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
During a fact hearing held on November 6, 2018 in Washington, D.C., the
undersigned made factual findings regarding petitioner’s prior condition, the onset of his
pain, scope of his pain and limited range of motion, and lack of other condition or
abnormality. Pursuant to these findings, which are set forth in this ruling, the
undersigned determined petitioner’s adhesive capsulitis meets the criteria for a Table
shoulder injury related to vaccine administration (“SIRVA”) following receipt of the
influenza vaccine.3 Accordingly, the undersigned finds that petitioner is entitled to
compensation.
I. Procedural History
Along with the petition, petitioner filed the medical records required by the
Vaccine Act. See Exhibits 1-4 (ECF No. 1); Statement of Completion (ECF No. 2); see
also § 11(c)(2) (for a description of the required medical records). An initial status
conference was scheduled for June 16, 2017.
During the call, petitioner’s counsel confirmed that all known and updated
medical records had been filed. Order, issued June 16, 2017, at 1 (ECF No. 8). The
staff attorney managing this SPU case suggested that a detailed affidavit from
petitioner, describing his injury, particularly the onset of his pain and reason for delay in
seeking treatment, would be helpful. Id. Petitioner filed his affidavit on August 1, 2017.
(ECF No. 9). On December 20, 2017, respondent filed a status report indicating he
intended to defend this case. (ECF No. 13). He requested to file his Rule 4 report by
January 29, 2018. Id.
In his Rule 4 report, respondent argued that compensation was not appropriate in
this case because petitioner had failed to establish that he suffered a Table Injury or
that his injury was caused by the influenza vaccination he received. Respondent’s Rule
4 Report (“Rule 4 Report”) filed Jan. 29, 2018, at 3-5 (ECF No. 17). Regarding a Table
SIRVA, respondent maintained “the record does not demonstrate that petitioner’s
symptoms began within 48 hours after vaccination.” Id. at 3; see 42 C.F.R. §
100.3(a)(XIV) and (c)(10)(ii) (requiring petitioner’s pain to have occurred within 48 hours
of vaccination). He stressed that “[p]etitioner did not seek medical care until more than
four months after vaccination.” Rule 4 Report at 3. Additionally, he asserted an earlier
occurrence of frozen right shoulder suggests petitioner “may have underlying pathology
and a propensity to develop adhesive capsulitis, not related to the vaccine” and that the
hand tremors suffered by petitioner “suggests there could be some underlying
neurological issue, which would also preclude petitioner from establishing causation
under the Table.” Id. at 4. When arguing petitioner had not provided preponderant
3Effective for petitions filed beginning on March 21, 2017, SIRVA is an injury listed on the Table. See
National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, Final Rule, 82
Fed. Reg. 6294 (Jan. 19, 2017); National Vaccine Injury Compensation Program: Revisions to the
Vaccine Injury Table, Delay of Effective Date, 82 Fed. Reg. 11321 (Feb. 22, 2017) (delaying the effective
date of the final rule until March 21, 2017). The requirements for SIRVA following receipt of the influenza
vaccination are set forth in the Vaccine Table (42 C.F.R. § 100.3(a)(XIV) (2017)) and the Table’s
Qualification and Aids to Interpretation (“QAI”) for SIRVA (42 C.F.R. § 100.3(c)(10)).
2
evidence to establish causation in fact, respondent again mentioned the four-month
delay in treatment and possible alternative causes for petitioner’s injury Id. at 5. After
reviewing the Rule 4 report, the undersigned directed the staff attorney to hold a call
with the parties to inform them of her initial impressions and to discuss the next step in
this case.
During the call held on February 23, 2018, the staff attorney informed the parties
that the undersigned believed petitioner’s history of adhesive capsulitis in the opposite
(right) shoulder almost five years earlier would not preclude petitioner from establishing
causation in this case. See Order, issued Mar. 6, 2018, at 1 (ECF No. 18). She added
that the undersigned had further indicated she was not aware of a neurological problem
which would cause both petitioner’s hand tremors and the SIRVA type of symptoms
experienced by petitioner. Id. She informed petitioner’s counsel that the undersigned
wished to see affidavits from petitioner and any lay witnesses addressing the onset and
duration of his hand tremors and his left shoulder adhesive capsulitis and medical
records related to his hand tremors, particularly any which show a diagnosis of this
condition. Id. at 1-2. Respondent’s counsel added that any affidavits from non-family
members would be particularly helpful. Id. at 2.
A few months later, petitioner filed a second affidavit and additional medical
records from his primary care provider (“PCP”), Arnold Koff, M.D. See Exhibits 6-7, filed
Apr. 11, 2018 (ECF No. 19). The following month, he filed an affidavit from a co-worker,
Chris Cobb. See Exhibit 8, filed May 2, 2018 (ECF No. 22). On May 22, 2018, the staff
attorney held a status conference with the parties to inform them that the undersigned
wished to hold a fact hearing in this case. Pre-Hearing Order, issued June 11, 2018, at
1 (ECF No. 23). Deadlines for the parties’ pre-hearing submissions were set. Id. at 2.
The fact hearing was held on November 6, 2018, in Washington, D.C. Petitioner
was the only witness and testified remotely, utilizing video conferencing. Following the
hearing, the parties were given 30 days to supplement the record, and two articles
regarding SIRVA injuries were filed as Court Exhibits I and II.4 The matter of entitlement
is now ripe for adjudication.
II. Factual History
Initially, petitioner filed medical records from his PCP, Dr. Koff at Avon Health,
from three years prior to vaccination as recommended for most adult vaccinees.5 See
Exhibit 4 at 2 (requesting medical records from 11/1/11 to the present). Later, petitioner
filed additional records from as early as October 2004. See Exhibit 7.
4These articles are S. Atanasoff et al., Shoulder injury related to vaccine administration (SIRVA), 28
Vaccine 8049 (2010), filed as Court Exhibit I and M. Bodor and E. Montalvo, Vaccination Related
Shoulder Dysfunction, 25 Vaccine 585 (2007), filed as Court Exhibit II.
5See Guidelines for Practice under the National Vaccine Injury Compensation Program at 13-14,
http://www.uscfc.uscourts.gov/sites/default/files/19.01.18%20Vaccine%20Guidelines.pdf (last visited on
Jan. 15, 2019).
3
These earlier records show that petitioner was seen twice in 2004 and three
times in 2006, for tightness in his chest, difficulty clearing his throat, several episodes of
vertigo, hypothyroidism, and chronic sinusitis. See Exhibit 7. On October 26, 2004, he
underwent a treadmill test (id. at 8) and was provided samples of Nexium in May 2006
(id. at 10). In the records from the visits in 2006, it is noted that petitioner’s symptoms
did not prevent him from running and playing soccer. Id. at 11.
Petitioner next visited his PCP on March 28, 2013, for an annual physical.
Exhibit 4 at 4. In the history section of this record, petitioner’s long-term chest
palpitations and chronic throat clearing are described. Also, listed is “mild trembling in
[petitioner’s] right hand when grasping an object such as a coffee mug close to the
body.” Id. It is recorded that petitioner has experienced this tremor “for more than 10
years with no change.” Id.
Petitioner received the influenza vaccination alleged as causal at the minute
clinic in the CVS pharmacy on November 9, 2014. Exhibit 1 at 3-4. The vaccine record
shows the vaccination was administered in petitioner’s left deltoid. Id. at 4.
Following this vaccination, petitioner did not receive medical care until he sought
treatment for his left shoulder adhesive capsulitis from Roy D. Beebe, M.D., an
orthopedist at UConn Health Center, approximately four and one-half months later, on
March 25, 2015. Exhibit 2 at 16. The record from that visit indicates petitioner had
experienced three months of left shoulder pain since receiving the influenza vaccination
in December 2014. His discomfort was described as gradually worsening until he
experienced significant pain at night and at rest and a significant loss of motion. In this
record, it is noted that petitioner previously suffered from adhesive capsulitis in his
contralateral (right) shoulder. Id.
Dr. Beebe performed a physical examination of petitioner’s left shoulder which
revealed petitioner had mild diffuse tenderness, forward flexion to 80 degrees,
abduction to 45 degrees, and no external rotation. Exhibit 2 at 16. He ordered x-rays of
petitioner’s left shoulder which were normal, administered a cortisone injection,
prescribed a narcotic opioid for nighttime, and ordered aggressive physical therapy
(“PT”). Id. at 16-18; see also Exhibit 3 at 10 (Rx for PT).
Petitioner attended 10 PT sessions at Magna Physical Therapy & Sports
Medicine Center, LLC (“Magna PT”) in April 2015. Exhibit 3 at 11-20. At his first visit on
April 2, 2015, petitioner reported that his symptoms started in November 2014, and that
he believed they were caused by the “flu shot” he received. Id. at 7. Describing his
pain as a low-level ache which had increased in the past three weeks, petitioner rated
the severity of his pain at five out of ten currently, three out of ten at its best, and nine
out of ten at its worst. Id. at 5, 8. In the PT record from this initial visit, it is noted that
Dr. Beebe had diagnosed petitioner with left frozen shoulder and administered an
injection which had been “helpful for a few day[s].” Id. at 5. Petitioner reported that he
had suffered from adhesive capsulitis in his right shoulder in 2010 which took
4
approximately six months to resolve. Id. at 7, 11. Although he participated in PT for this
earlier injury, he “did not complete his therapy due to frustration with chronicity.” Id. at
11. Observing that petitioner’s current symptoms were consistent with left shoulder
adhesive capsulitis, the physical therapist recorded impairments in petitioner’s range of
motion (“ROM”), strength, and functionality. He recommended that petitioner attend PT
three times per week for four weeks. Id. at 12.
At his last visit in April 2015, due to the level of his pain and increased discomfort
following treatment, petitioner questioned whether he should continue with PT. Exhibit
3 at 20. In response, the physical therapist “[d]iscussed [the] importance of relaxation
during manual stretching” and increasing petitioner’s home exercise program (“HEP”).
Id. He observed that petitioner had made good progress increasing his ROM but still
showed significant guarding and pain at the end of his movement. After decreasing the
amount of manual stretching performed during the session, the therapist noted that
petitioner tolerated the treatment better. Id.
Towards the end of April 2015, petitioner visited his PCP, Dr. Koff, seeking his
opinion on his left frozen shoulder. Exhibit 4 at 12. At that visit, petitioner reported that
his pain started in November 2014 when he received the influenza vaccination. Noting
that his pain had not relented, petitioner indicated that he began to have difficulty
moving his shoulder two months ago. He informed Dr. Koff that Dr. Beebe had
diagnosed him with frozen shoulder and prescribed oxycodone which he took only at
night. He disclosed that he had experienced some improvement in ROM since starting
PT two weeks ago. Id. Although not clearing indicated in these records, it appears Dr.
Koff prescribed a different medication, piroxicam.6 See Exhibit 2 at 15 (record from later
visit with Dr. Beebe).
Petitioner returned to Dr. Beebe for follow-up regarding his left shoulder adhesive
capsulitis on June 1, 2015. Exhibit 2 at 15. He reported that his pain had improved, but
that he still had marked, although also improved, pain at night. He tried taking
meloxicam to facilitate better sleep but found it did not help. Upon examination, Dr.
Beebe observed that petitioner’s forward flexion remained at 80 degrees, but his
abduction had improved to 80 degrees and his external rotation had improved to 30
degrees. He instructed petitioner to continue aggressive PT. Id.
Petitioner was re-evaluated at Magna PT on June 4, 2015. Exhibit 3 at 21. In
this record, it is noted that he had received PT in April 2015 but had not been treated for
over a month due to travel and work. After seeing his orthopedist, he was referred
again to PT. Petitioner’s pain and limited ROM continued but were described as
improved. Id.
6Piroxicam is a nonsteroidal anti-inflammatory drug used for treatment of conditions such as rheumatoid
arthritis and osteoarthritis. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1450 (32th ed.
2012). According to petitioner, this medication failed to alleviate his pain. Exhibit 6 at 6 (petitioner’s
second affidavit); Testimony (“Tr.”) at 24.
5
Petitioner attended five PT sessions in June and July 2015. Exhibit 3 at 21-27.
At his last PT session on July 2, 2015, he reported that he “fe[lt] about the same.” Id. at
27. Observing that petitioner still suffered from significant limitation in his external
rotation, the therapist indicated petitioner would “continue to benefit from skilled PT to
increase ROM and strength in order to maximize functional mobility.” Id. In addition to
recommending additional PT, the therapist encouraged petitioner to continue his HEP.
Id.
Almost a year later, on May 26, 2016, petitioner was seen at UConn Health
Urgent Care for a cough. There is no mention of any other condition, including
petitioner’s left shoulder adhesive capsulitis. Exhibit 2 at 11-14.
On August 11, 2016, petitioner visited his PCP, Dr. Koff, for his annual physical.
Exhibit 4 at 20. At this visit, he indicated that he had “no further problems with [his]
shoulder.” Id. (all letters capitalized in the original).
He returned to his PCP three months later, on November 10, 2016, to check on
other conditions and to discuss recent bloodwork. Exhibit 4 at 24. The medical record
from this visit reveals petitioner had full ROM and was not taking any medication but
was avoiding sleeping on his left shoulder due to ongoing discomfort. This is the last
medical record which mentions petitioner’s left shoulder injury. Id.
Beginning with the record from petitioner’s March 28, 2013 visit, all medical
records from petitioner’s PCP include an entry regarding his right-handed tremor. See
Exhibit 4. In the most recent PCP record filed, from a visit on November 10, 2016,
additional information is provided. It is noted that petitioner’s daughter developed a
similar tremor at age 26 but that petitioner knows of no other relative with this condition.
The record again mentions that the tremor remains unchanged but adds that it does not
interfere with petitioner’s ability to write. Exhibit 4 at 24.7
III. Legal Standard for Entitlement
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1). § 13(a)(1)(A). In making this determination, the special master or court should
consider the record as a whole. § 13(a)(1). Petitioner’s allegations must be supported
by medical records or by medical opinion. Id.
7 This record also indicates petitioner has experienced the tremor for five to ten years. As the it was
documented in 2013 that petitioner had suffered from the tremor for more than ten years, this later entry
appears to be erroneous. Compare Exhibit 4 at 4 (entry from record dated March 28, 2013) with id. at 24
(entry from record dated November 10, 2016).
6
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,8 a petitioner
must establish that she suffered an injury meeting the Table criteria, in which case
causation is presumed, or an injury shown to be caused-in-fact by the vaccination she
received. § 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. § 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV). The
criteria establishing a SIRVA under the accompanying QAI are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies
occurring after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
8 In summary, a petitioner must establish that she received a vaccine covered by the Program,
administered either in the United States and its territories or in another geographical area but qualifying
for a limited exception; suffered the residual effects of her injury for more than six months, died from her
injury, or underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit
or collected an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
7
42 C.F.R. § 100.3(c)(10).
If, however, petitioner suffered an injury that either is not listed in the Table or did
not occur within the prescribed time frame, she must prove that the administered
vaccine caused injury to receive Program compensation. § 11(c)(1)(C)(ii) and (iii). In
such circumstances, petitioner asserts a “non-Table or [an] off-Table” claim and to
prevail, petitioner must prove her claim by preponderant evidence. § 13(a)(1)(A). The
Federal Circuit has held that to establish an off-Table injury, petitioner must “prove . . .
that the vaccine was not only a but-for cause of the injury but also a substantial factor in
bringing about the injury.” Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344,
1351 (Fed. Cir 1999). Id. at 1352. The received vaccine, however, need not be the
predominant cause of the injury. Id. at 1351.
The Circuit Court has indicated that a petitioner “must show ‘a medical theory
causally connecting the vaccination and the injury’” to establish that the vaccine was a
substantial factor in bringing about the injury. Shyface, 165 F.3d at 1352-53 (quoting
Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992)). The
Circuit Court added that "[t]here must be a ‘logical sequence of cause and effect
showing that the vaccination was the reason for the injury.’” Id. The Federal Circuit
subsequently reiterated these requirements in a three pronged test set forth in Althen v.
Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). Under this test,
a petitioner is required
to show by preponderant evidence that the vaccination
brought about her injury by providing: (1) a medical theory
causally connecting the vaccination and the injury; (2) a
logical sequence of cause and effect showing that the
vaccination was the reason for the injury; and (3) a showing
of a proximate temporal relationship between vaccination and
injury.
Id. All three prongs of Althen must be satisfied. Id. Circumstantial evidence may be
considered, and close calls regarding causation must be resolved in favor of the
petitioner. Id. at 1280.
IV. Fact Hearing
A. Applicable Legal Standard for Factual Findings
A petitioner must prove, by a preponderance of the evidence, the factual
circumstances surrounding her claim. § 13(a)(1)(A). To resolve factual issues, the
special master must weigh the evidence presented, which may include
contemporaneous medical records and testimony. See Burns v. Sec'y of Health &
8
Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special master must
decide what weight to give evidence including oral testimony and contemporaneous
medical records). Contemporaneous medical records are presumed to be accurate.
See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
To overcome the presumptive accuracy of medical records testimony, a petitioner may
present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v.
Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec.
Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)).
B. Affidavits and Testimony
Petitioner filed affidavits in August 2017 and April 2018. See Exhibits 5-6. In
both, he indicated he received the influenza vaccination alleged as causal at the CVS
Pharmacy on November 9, 2014. Exhibits 5 at ¶ 2; 6 at ¶ 2. In the earlier affidavit,
petitioner indicates he suffered dull pain immediately upon vaccination which increased
over the subsequent weeks and months. Exhibit 5 at ¶ 3. In the later affidavit, he
describes his pain and stiffness as starting that night or by the next morning. Exhibit 6
at ¶ 4.
During the fact hearing, petitioner testified that he felt a burning pain upon
injection, as though he “could feel the serum going in.” Tr. at 10. He stated that the
injection was more painful than other vaccinations he had received. Id. When asked
about the seemingly inconsistent information regarding the onset of his pain in his
affidavits, petitioner indicated that he felt localized pain immediately upon injection and
pain and stiffness more reminiscent of the symptoms he experienced in his right
shoulder in 2010, by the next day. Tr. at 11. In both his testimony and later affidavit,
petitioner indicated that, while being vaccinated, he was seated and the nurse, who was
standing, administered the vaccination high in his left shoulder. Tr. at 10; Exhibit 6 at ¶
3. When asked to identify the exact location of the vaccination, petitioner pointed to an
area “approximately one-inch below his shoulder on the lateral aspect of his left arm.”
Tr. at 10.
In his testimony and both affidavits, petitioner indicated he did not seek
immediate medical treatment due to his earlier experience with adhesive capsulitis in
his right shoulder which “seemed to go away only with the passage of time.” Exhibit 5
at ¶ 4; accord. Exhibit 6 at ¶ 4; Tr. at 16-17. He testified that, during this time, he self-
treated with over the counter medications and some of the stretching exercises he
performed in 2010. Tr. at 15-16. When petitioner’s symptoms continued and became
worse than those he experienced in 2010, he sought medical treatment from Dr. Beebe.
Tr. at 17; Exhibit 5 at ¶ 4. Petitioner stated that he also “waited to see the same
specialist doctor,” presumably Dr. Beebe who he saw on March 25, 2015. Exhibit 6 at ¶
5. He testified that by that time, “[his] arm was almost totally useless if [he] moved it at
all . . . [and that he experienced] heightened pain with any type of movement.” Tr. at 17
9
When asked, during both direct and cross examination, why he thought the
medical record from his March 23, 2015 visit to Dr. Beebe identified the influenza
vaccination as being administered in December and indicated he had suffered three,
rather than four, months of left shoulder pain, petitioner surmised that he may have
provided the erroneous information or that his information may have been vague and
thus, mistakenly interpreted. Tr. at 17-18; 32-33. During cross examination,
respondent’s counsel also asked about an entry in the medical records from petitioner’s
April 23, 2015 visit to Dr. Koff which indicated he experienced difficulty moving his left
shoulder beginning two months earlier. Tr. at 33-34; see Exhibit 4 at 12. In response,
petitioner theorized that he may have been referring to a time when he experienced
increased pain during movement. Tr. at 34. He testified that he did not know why he
did not include any information regarding his immediate pain, upon injection, in his later
affidavit, instead discussing only the timing of his pain and stiffness, which he indicated
occurred that evening or the next morning. Tr. at 35.
Throughout his testimony, petitioner described his condition and the effect it had
on him. In response to questioning from respondent’s counsel, petitioner testified that,
to his knowledge, he had not missed any soccer games due to his condition. Tr. at 37-
38. However, he pointed out that he is not a goalie and thus, would not be required to
throw the ball. Tr. at 38.
Following questioning by both counsel, the undersigned sought additional
information regarding petitioner’s work and the cause of his right frozen shoulder in
2010. Tr. at 39-40. When asked if he personally wrote the entries found on the intake
form from his first PT session on April 2, 2015, stating that onset occurred in November
2014 and the cause of his injury was the influenza vaccination he received, petitioner
confirmed that he had. Tr. at 41-42; see Exhibit 3 at 7.
Petitioner also filed an affidavit from a co-worker, Chris Cobb, in early May 2018.
See Exhibit 8. Mr. Cobb indicates he has worked closely with petitioner for the last four
and one-half years. Id. at ¶ 3. This means Mr. Cobb began working with petitioner in
late 2013 or early 2014. In his affidavit, Mr. Cobb stated that petitioner informed him on
multiple occasions in November 2014, that he had troubled sleeping due to his arm
pain. Id. at ¶ 5. According to Mr. Cobb, after Thanksgiving, petitioner indicated that he
“was having difficulty lifting his arm over his head and that his range of motion was
painful.” Id. at ¶ 6. He mentioned the influenza vaccination at that time and, in early
2015 told Mr. Cobb about the right shoulder symptoms he experienced previously. Id.
at ¶¶ 6-7.
C. Factual Findings
Respondent does not dispute that petitioner received the vaccination alleged as
causal in his left deltoid on November 9, 2014. Rather, the primary disagreements in
this case involve the timing of the onset of petitioner’s left shoulder injury and existence
of prior and con-current conditions which respondent suggests may explain petitioner’s
symptoms.
10
1. Prior Condition
The first requirement under the QAI for a Table SIRVA is a lack of a history
revealing problems associated with the affected shoulder which were experienced prior
to vaccination and would explain the symptoms experienced after vaccination. 42
C.F.R. § 100.3(c)(10)(i). Although petitioner experienced right shoulder adhesive
capsulitis in 2010, there is no evidence of pain, inflammation, or dysfunction in his left
shoulder prior to the influenza vaccine administration. Respondent mentions
petitioner’s earlier right shoulder condition when arguing the existence of another
condition which would explain petitioner’s symptoms9 but does not assert petitioner had
any prior left shoulder issues.
The undersigned finds there is no evidence that petitioner experienced any
issues with his left shoulder prior to vaccination.
2. Onset of Pain
Regarding the onset of petitioner’s pain, in order to meet the definition of a Table
SIRVA, petitioner must show that he experienced the first symptom or onset within 48
hours of vaccination (42 C.F.R. § 100.3(a)(XIV)(B)) and that his pain occurred within
that same 48-hour period (42 C.F.R. § 100.3(c)(10)(ii) (QAI criteria)). Respondent
argues that compensation is not appropriate because “the record does not demonstrate
that petitioner’s symptoms began within 48 hours after vaccination.” Rule 4 Report at 3.
However, there are additional Vaccine Act provisions the undersigned finds instructive
in this case. Under Section 13 of the Act, the special master may find the time-period
for the first symptom or manifestation of onset required for a Table injury is satisfied
“even though the occurrence of such symptom or manifestation was not recorded or
was incorrectly recorded as having occurred outside such a period.” § 13(b)(2). “Such
a finding may be made only upon demonstration by a preponderance of the evidence
that the onset . . . occur within the time period described in the Vaccine Injury Table.”
Id.
As the undersigned stated at the fact hearing, multiple entries in the medical
records as well as petitioner’s testimony and affidavits provide preponderant evidence
that the onset of petitioner’s pain occurred within 48 hours of vaccination. Tr. at 45-46.
The histories contained in the medical records from Magna PT and petitioner’s PCP, Dr.
Koff, all indicate petitioner’s left shoulder pain began in November 2014 when he
received the influenza vaccination. For example, on the intake form, completed by
petitioner when first seen at Magna PT on April 2, 2015, petitioner indicated his current
symptoms started in November 2014. Exhibit 3 at 7. He added that he believes his
symptoms were caused by the “flu shot” he received. Id. This information is echoed in
the record from the initial evaluation performed that day. Id. at 11. Additionally, that
record indicates petitioner “initially noticed pain and restricted movement but over the
past 3 weeks it has become especially bad.” Id. When seen by Dr. Koff later that
9 The undersigned will discuss this argument further in Section IV.C.4. below.
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month, petitioner reported that his pain began in November 2014 when he was
administered the influenza vaccine. Exhibit 4 at 12. Specifically, petitioner stated that
he was having pain in his arm after receiving the flu shot “which has not gone away.”
Id. (all letters capitalized in the original).
Although these histories were provided by petitioner, they were given within six
months of vaccination, when petitioner first sought treatment. As the Federal Circuit
has noted, it is appropriate for a special master to give greater weight to evidence
contained in medical records created closer in time to the vaccination, even if the
information is provided as part of a medical history. Cucuras, 993 F.2d at 1528
(medical records are generally trustworthy evidence). The Circuit Court explained that
Medical records, in general, warrant consideration as trustworthy evidence.
The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper
treatment hanging in the balance, accuracy has an extra premium. These
records are also generally contemporaneous to the medical events.
Id.
The only medical record containing an entry suggesting the onset of petitioner’s
pain was later is from petitioner’s initial visit to his orthopedist, Dr. Beebe, on March 25,
2015. The history section of that record indicates petitioner reported “a three-month
history of pain since he had a flu shot back in December.” Exhibit 2 at 16. It further
indicates that “[s]ince that time, [petitioner] has had discomfort, which has gradually
gotten worse to the point now [that petitioner has] significant pain at night and at rest
and significant loss of motion.” Id. Thus, the record erroneously indicates petitioner
had three, rather than four, months of pain and that he received the influenza
vaccination in December, rather than November. However, it is important to note that
petitioner still linked the onset of his pain to the vaccine administration. Additionally,
petitioner testified that he may have provided the wrong information during this visit or
that he may have provided vague information which led the individual who transcribed
the history to list the duration of petitioner’s pain as three months and timing of
vaccination as December 2014. Tr. at 17-18, 32-33. The undersigned finds either a
reasonable explanation regarding the source of the erroneous information.
During his testimony petitioner also provided a reasonable explanation regarding
the seemingly inconsistent information contained in his two affidavits regarding the
onset of his pain. Compare Exhibit 5 at ¶ 3 with Exhibit 6 at ¶ 4. Petitioner testified that
he felt localized pain, which he described as burning, immediately upon injection and
pain and stiffness more reminiscent of the symptoms he experienced in his right
shoulder in 2010, by the next day. Tr. at 10-11.
The undersigned finds that the preponderance of the evidence, as well as
petitioner’s testimony, establish that the onset of petitioner’s pain was immediate and
thus, within 48 hours of vaccination.
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3. Scope of Pain and Limited ROM
To establish a Table SIRVA, petitioner’s pain and reduced ROM must be limited
to the shoulder in which the vaccination alleged as causal was administered. 42 C.F.R.
§ 100.3(c)(10)(iii). In the medical records filed, there is no indication that petitioner
experienced pain or limited ROM in any area other than his left shoulder, and
respondent does not dispute this fact.
The undersigned finds there is sufficient evidence to show petitioner’s pain and
reduced ROM to be limited to his left shoulder.
4. Other Condition or Abnormality
The last QAI criteria for a Table SIRVA states that there must be no other
condition or abnormality which would explain petitioner current symptoms. 42 C.F.R. §
100.3(c)(10)(iv). Respondent argues that petitioner’s right-hand tremor and earlier right
shoulder adhesive capsulitis suggest conditions which would explain petitioner’s left
shoulder adhesive capsulitis. Rule 4 Report at 4.
The medical records from petitioner’s PCP show petitioner suffered tremors in his
right hand from at least 2003 to the present, evident when he attempted certain
movements such as holding a coffee cup close to his body. Exhibit 4 at 4, 12, 24. In
these entries, it is noted that petitioner’s condition, evident only in his right hand,
remained unchanged. Id. In his affidavit, petitioner indicated Dr. Koff diagnosed the
condition as “familial tremors, . . . said it wasn’t serious, . . . [and] offered to prescribe
some medication that would take care of it if [he] wanted.” Exhibit 6 at 7. Because the
condition was not serious and remained unchanged, petitioner declined Dr. Koff’s offer
of medication. Id. The medical record from a November 2016 visit to Dr. Koff indicates
petitioner’s daughter developed a similar tremor at age 26 but that petitioner knows of
no other relative with this condition. Exhibit 4 at 24. When petitioner sought a second
opinion regarding his left shoulder adhesive capsulitis from Dr. Koff in April 2015, Dr.
Koff made no connection between petitioner’s right-hand tremors and his left shoulder
adhesive capsulitis. Exhibit 4 at 12-19. The undersigned finds these records provide
sufficient evidence to establish petitioner’s left shoulder adhesive capsulitis is unrelated
to his right-hand tremors which is a benign condition in existence and unchanged for
years.
Regarding petitioner’s 2010 right shoulder adhesive capsulitis, there is a similar
lack of evidence pointing to any connection between it and the left shoulder adhesive
capsulitis suffered by petitioner in 2014-15. The medical records from Dr. Beebe and
Magna PT contain numerous references to petitioner’s earlier right shoulder injury.
Exhibits 2 at 16; 3 at 11, 17, 21. As with petitioner’s right-hand tremors, none of these
medical providers mentions a link between the two episodes of adhesive capsulitis,
separated by almost five years and occurring in different shoulders. At the fact hearing,
petitioner testified that the cause of his right shoulder adhesive capsulitis was never
determined. Tr. at 40. Adding that both he and his wife experienced adhesive capsulitis
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at that time, he theorized that this earlier episode may have been vaccine caused as
well. Id. Although he could not recall if he received a vaccination at that time, in 2010,
he suggested that it was possible since he and his wife would have gotten vaccinated at
the same time. Id.
The undersigned finds there is preponderant evidence showing there is no
condition, including petitioner’s right-hand tremors and past right shoulder adhesive
capsulitis, which would explain the left shoulder adhesive capsulitis petitioner suffered in
2014-15.
V. Conclusion
Based on the record as a whole, including the testimony of petitioner, the
undersigned finds by preponderant evidence that (1) petitioner had no prior problem
with his left shoulder; (2) the onset of petitioner’s pain occurred within 48 hours,
specifically immediately upon vaccination; (3) petitioner’s pain and reduced ROM were
limited to his left shoulder; and (4) petitioner had no prior condition or abnormality that
would explain his symptoms. Thus, the criteria for a Table Injury of SIRVA is satisfied,
and causation is presumed.10 The undersigned finds that petitioner is entitled to
compensation in this case.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
10 Although the undersigned also made preliminary findings regarding causation at the fact hearing,
finding sufficient preponderant evidence existed to establish causation, no further discussion regarding
causation is needed. Tr. at 47-48.
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