In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0451V
Filed: July 8, 2019
UNPUBLISHED
LARRY WOLFORD,
Special Processing Unit (SPU); Fact
Petitioner, Hearing; Findings of Fact; Onset;
v. Post-Hearing Briefing Not Required;
Influenza (Flu) Vaccine; Shoulder
SECRETARY OF HEALTH Injury Related to Vaccine
AND HUMAN SERVICES, Administration (SIRVA); No Other
Condition or Abnormality
Respondent.
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent.
FACT RULING1
Dorsey, Chief Special Master:
On March 29, 2017, Larry Wolford (“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”). Petitioner alleges that he suffered a right shoulder injury
caused by an influenza (“flu”) vaccination he received on November 11, 2015. Petition
at 1-2. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with
the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of
Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner 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.
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).
For the reasons discussed below, the undersigned finds that the onset of
petitioner’s right shoulder injury occurred within 48 hours of his November 11, 2015
vaccination.
I. Procedural History
The petition in this case was filed on March 29, 2017. On January 16, 2018,
respondent filed a Rule 4(c) report indicating that respondent did not consider this case
to be appropriate for compensation (ECF No. 26). Respondent asserted that petitioner
had not established that the onset of his symptoms began within 48 hours of his
vaccination. Respondent further argued that petitioner had pre-existing cervical and
upper thoracic issues and that his pain was not limited to his right shoulder. Specifically
concerning onset, respondent argued:
Petitioner did not seek medical care for his alleged vaccine injury
until February 16, 2016, over three months post-vaccination. When he did
present to chiropractor Jarrod Thacker, DC, petitioner said that his right
arm pain began one week after receiving a flu vaccination in November
2015. Ex. 5 at 3. As a result, the medical records do not establish that
petitioner suffered the first symptoms or manifestation of onset of a
shoulder injury within 48 hours of the November 2015 flu vaccination.
Respondent’s Rule 4(c) report at 5.
On February 20, 2018, petitioner filed Exhibit 11, Affidavit of Larry Wolford, and
Exhibit 12, Affidavit of Patty Wolford (ECF No. 28). On October 23, 2018, petitioner
filed Exhibit 13, Expert Opinion of Jeffrey Boyd, M.D., Regarding Larry Wolford (ECF
No. 38). On November 28, 2018, the parties and an OSM staff attorney held a
telephonic status conference to discuss how to proceed. At the parties’ request, the
undersigned scheduled a videoconference fact hearing on the issue of onset for May
14, 2019. Pre-Hearing Order, issued Dec. 7, 2018 (ECF No. 39).
Approximately two weeks before the hearing, on April 29, 2019, respondent filed
a status report requesting a pre-hearing status conference. Respondent’s Status
Report, filed April 29, 2019 (ECF No. 44). Respondent noted that he had requested
telephone records from petitioner that had not yet been filed. Id. On the same day,
petitioner filed a status report indicating that he had been making efforts to obtain these
records. Petitioner’s Status Report, filed April 29, 2019 (ECF No. 45).
On April 30, 2019, a telephonic status conference was held with counsel for both
parties and an OSM staff attorney. Following the status conference, the undersigned
issued an order directing petitioner to file a motion for a subpoena and the records.
Scheduling Order, issued April 30, 2019 (ECF No. 47). The undersigned stated that
other than the items listed in the order, evidence not filed by the date set for the record
on onset to close would not be admitted absent compelling circumstances. Id.
2
On May 1, 2019, petitioner filed Pet. Ex. 21, a declaration from the custodian of
records for Dinkar Patel, M.D., indicating that no phone records were produced. Pet.
Ex. 21 at 2. On June 5, 2019, petitioner filed Pet. Ex. 22, containing phone records with
several calls highlighted. Pet. Ex. 22 at 6-7.
On May 14, 2019, the undersigned held a fact hearing on the issue of onset. The
petitioner, Larry Wolford, and his wife, Patty Wolford, were witnesses and appeared via
videoconference with petitioner’s attorney.
On May 23, 2019, the undersigned held a telephonic status conference with the
parties. Isaiah Kalinowski appeared on behalf of petitioner, and Kyle Pozza appeared
on behalf of respondent. During the status conference, the undersigned indicated that if
it was acceptable to the parties, she would issue an oral ruling as to onset during the
status conference. Mr. Kalinowski agreed to this approach. Mr. Pozza stated that he
thought that there would be briefing before a ruling was issued. The undersigned
responded that onset was a factual issue and that the undersigned did not need briefs
to resolve onset. The undersigned then proceeded to state her ruling on onset as well
as the supporting evidence. The undersigned indicated that the ruling would be
memorialized in writing.
Following the May 23, 2019 status conference, the undersigned issued a
scheduling order directing petitioner to file additional medical records, an expert report,
social security disability records, and employment records. Scheduling Order, issued
May 24, 2019 (ECF No. 51).
On June 12, 2019, respondent filed a status report concerning the May 24, 2019
scheduling order. Respondent’s Status Report, filed June 12, 2019 (ECF No. 55). In
his status report, respondent’s counsel noted that during the May 23, 2019 status
conference he stated that post-hearing briefing would be appropriate. Id. Respondent
noted that the May 24, 2019 scheduling order did not reference respondent’s request for
post-hearing briefing. Id.
II. Evidence from Medical Records, Affidavits, and Hearing Testimony
While the undersigned has reviewed the entire record, because this ruling
concerns only onset, only evidence relevant to onset is summarized herein.
On November 11, 2015, petitioner was seen by his primary care physician, Dr.
Dinkar Patel. Pet. Ex. 4 at 34. The record indicates chief complaints of diabetes
mellitus and hypercholesterolemia. Id. Under “History of Present Illness,” the record
indicates that petitioner complained of backache, came in for check up on blood sugar,
had itching and rash on his right arm, and wanted the flu vaccine. Id.
Petitioner testified that he had not previously had the flu vaccine, but that there
were advertisements on television that “if you had sugar [diabetes] it would be bad on
you if you didn’t take it . . . so I went up there . . . just to take a shot.” Transcript of May
14, 2019 Hearing (“Tr.”) at 15-16, 88. The record documents, “Flu vaccine given. No
3
reaction noted.” Pet. Ex. 4 at 35. Petitioner’s detailed immunization record indicates
that his flu shot on this date was administered intramuscularly into his right deltoid. Pet.
Ex. 10.
At the hearing, petitioner testified that when the vaccine was administered, the
nurse “said she felt it tighten up on me, so I don’t know where she did or what, but she
said she felt it tighten up on me.” Tr. at 17. He explained that “when she pulled the
needle out, she said it tightened up on her . . . she felt it jerk, the muscle tightened up
and everything.” Id. at 109-10.
Petitioner testified that he began experiencing aching and stiffness the evening of
the vaccination. Id. at 19. He testified that the shoulder pain disturbed his sleep and
awoke him at night beginning the first night following the vaccination. Id. at 35. He had
to start driving with one hand “[r]ight after the vaccine.” Id. at 36. He explained that a
day or two later he developed a stabbing pain. Id. at 26. He then made a “sleeve,” or
sling, out of a compression sock that, when worn as a sleeve, warmed his arm and
reduced his discomfort. Id. at 19-20, 26, 31-33.
When asked why he did not go to the emergency room, petitioner testified,
“[p]robably because they’d probably tell her to give you a pain shot and stuff, and I didn’t
want no more shots in the arm.” Id. at 117; see also id. at 123 (“they’d probably want to
administrate a shot . . . I didn’t want no more shots”). He thought they would probably
“say they want you to go to another doctor . . . so don’t make no difference.” Id. He
further explained that a couple of days after vaccination, he did not go to the emergency
room because “it would get better with treating – with my treating myself, Tylenol,
ibuprofen . . . [and] I’d go ahead and everything and put the sleeve on it too, so it would
make it, like I say, feel a little better.” Id. at 118. He added that he also used Icy Hot
during this time. Id. at 119.
Petitioner testified that his wife usually took care of making medical appointments
and filling out medical forms. Tr. at 27, 152-53. He testified that his wife also usually
did more of the talking than him. Id. at 152. Petitioner testified that at some point he
asked his wife to start calling doctors to see if he could be examined, but that he did not
recall exactly when that was. Id. at 44. He testified that “it’s hard to see doctors
anymore” and that “he’s hard to see and so, but you ought to hang on to what doctor
you got right now.” Id. at 121-22. Petitioner testified that he lives in a remote area and
his primary care physician’s office is 35 minutes away. Id. at 15.
At the hearing, Ms. Wolford testified that “when she [the nurse in Dr. Patel’s
office] gave him [petitioner] his shot she just kind of – I guess laughed a little bit and
said he’d probably get sore because I felt it jerk.” Id. at 157-58; see also id. at 199. Ms.
Wolford testified that she was present during the entire visit with Dr. Patel on November
11, 2015 when petitioner received his flu shot and that she also received a flu shot
during this visit. Id. at 157. She testified that the nurse who administered the vaccine
was named Lynette but that she did not know the nurse’s last name. Id. at 199. The
4
vaccine administration record indicates that the vaccine was administered by Lynette
Gibson. Pet. Ex. 10.
Ms. Wolford testified, “after we got home, he was complaining with it being sore,
just like sore, a dull, aching sore, and – but he thought, you know, it was just normal.”
Tr. at 158. She testified that she did not call Dr. Patel’s office that day about her
husband’s pain because the nurse “said it was going to get sore, so he just thought it
would be normal.” Id. at 201. She testified that the soreness did not go away but
worsened. Id. at 158-59. She stated that the next day, “he just all of a sudden would be
hollering, ouch, and grabbing to his arm.” Id. at 159. However, she testified that he
“thought it was just normal from the shot, you know, because she said he’d get sore.”
Id.
Ms. Wolford testified that petitioner used Icy Hot, ibuprofen, and Tylenol for the
pain, and made a sleeve to put on to lessen his pain. Id. at 159. She testified that as
time went on in November and December, petitioner would “treat it for a while and then
it would go away, and it’d like just come back . . . . I remember him propping it up on,
like, a pillow to ease the pain. And I think we took rolled-up quilts, too, to put up under
his arm to hold it up where it was sore.” Id. at 160. She recalled seeing him “trying to
comb his hair, and he couldn’t get his arm up over his head to comb his hair, like he
was having trouble moving his arm.” Id. at 161. She could not recall when she
observed this but stated that it was before April 2016 and possibly before February
2016. Id. at 161, 173-74.
Ms. Wolford testified that she was not sure when she first called Dr. Patel’s
office, but believes it was sometime around mid-November or Thanksgiving. Tr. at 162-
63, 202. She testified that she was told that Dr. Patel “was out of the country at that
time” and that he would be gone for a month. Id. at 163, 205.
Petitioner’s phone records indicate that calls were made from a number
registered to petitioner to the same number in Grundy, VA, (276) 935-6444, 20 times
between November 20-24, 2015 and twice on January 15, 2016. Pet. Ex. 22 at 6-7.
The phone records also indicate that two calls were made to (276) 935-8620 in Grundy,
VA on January 11, 2016. Pet. Ex. 22 at 7. There is no evidence in the record of who
these phone numbers belong to. The main number of the clinic where Dr. Patel
practices in Grundy, VA is (276) 935-2148. See, e.g., Pet. Ex. 9 at 1.
Petitioner’s wife testified that petitioner did not see another doctor in the practice
because Dr. Patel had “been his doctor for years. He’s the only one he sees” and they
planned to “wait for him to come back.” Tr. at 163-64. She testified that she did not
initially look for other doctors because petitioner was treating himself and the pain was
coming and going. Id. at 164.
In a later record, Dr. Patel included a note stating:
Patient states he came to see me in Nov 2015, I seen him on 11-11-15 but
5
he came again to see me and I was out of town and he seen Jerry
Thacker for right shoulder pain and received physical therapy.
Pet. Ex. 7 at 5 (ECF No. 5-8); see also Pet. Ex. 9 at 5 (handwritten version of similar
note).3
Ms. Wolford testified that eventually she started calling other doctors in the area
that she identified by going through a phone book. Tr. at 164. She could not recall the
names of the offices she called but stated that there were “a few” and that “they couldn’t
get him in because . . . they wanted a referral or where it was the holidays and stuff,
they wanted it two or three months down the road.” Id. at 185. Petitioner’s wife testified
that they did not go to the emergency room because “he was already treating himself
anyways. If he went to the emergency room, they just wouldn’t probably have done no
more than what he’s already done.” Id. at 185. She testified that there are not many
medical providers in the area. Id. at 203.
She contacted the office of chiropractor Dr. Thacker and was told that he could
see petitioner. Id. at 165. She could not recall the interval between when she called Dr.
Thacker’s office and when petitioner was first seen by Dr. Thacker, but said that “it
wasn’t that long. Probably a couple of days . . . they got him in quick.” Id.
On February 16, 2016, petitioner presented to chiropractor Jarrod Thacker, DC
for an examination. Pet. Ex. 5 at 3. The record states:
Patient presents with severe upper thoracic/right shoulder/arm/elbow
thumb pain. Patient explains the pain started after receiving a flu shot in
November 2015. Patient has pain daily 4/5 times a day made worse with
certain movements. Pain ranges from 2-8/10 on a pain scale. Onset:
acute, one week after flu shot was administered. Cause of symptoms: flu
shot.
Pet. Ex. 5 at 3.
On examination, Dr. Thacker found that petitioner presented with “severe
guarding of the neck and right shoulder.” Id. Dr. Thacker treated petitioner to relieve
pain, decrease inflammation, and to improve function, strength, and range of motion.
Id. at 4. Petitioner was given shoulder exercises and stretches for impingement
syndrome. Id.
Petitioner testified that when he saw Dr. Thacker, he told him the reason for his
visit was his arm and the flu shot. Tr. at 45. He testified that he did not tell Dr. Thacker
when the pain began but that his wife did. Id. at 47. Petitioner testified that the
notation stating the onset was one week after the flu shot is not accurate. Id. at 49,
127-28. On cross-examination, respondent’s counsel asked whether petitioner told Dr.
3 Pet. Ex. 7 may be found at ECF No. 5-8. Because Pet. Ex. 7 is not paginated, the reference to page 5
above refers to the page of the PDF when downloaded from CM/ECF.
6
Thacker that the onset of his right shoulder pain was acute and was one week after the
flu vaccine was administered. Id. at 128. Petitioner initially responded “yes,” but then
immediately added, “If that’s what – is that what acute means? What does acute
mean?” Id. Respondent’s counsel then asked if petitioner told Dr. Thacker that his right
shoulder pain began one week after the flu shot was given to him, and petitioner replied
“No, no, no. No, no, no, no.” Id. Ms. Wolford testified that “the first time he [petitioner]
seen Dr. Thacker, he told Dr. Thacker that it – it got sore that day he took the shot and
then it got worse that week.” Id. at 206-07.
On February 29, 2016, petitioner saw Dr. Patel with chief complaints of diabetes
mellitus and hypercholesterolemia. Pet. Ex. 4 at 36. The record further indicates that
he had “neck pain, numbness in right arm.” Id. In relation to the neck pain and right
arm numbness, the record indicates that he was “[b]eing followed by chiropractor.” Id.
He was assessed as having “neck pain with probable degenerative disc disease c spine
cervical radicular syndrome right side” as well as osteoarthritis and non-insulin
dependent diabetes mellitus II. Id. at 37. The plan indicated that Dr. Patel “[a]dvised
mri of the c spine, Patient states chiropractor is going to do it.” Id.
At the hearing, petitioner testified that he told Dr. Patel that the shoulder pain
began “[w]hen his nurse had give me the shot, the flu shot.” Tr. at 65. Ms. Wolford
testified that she recalled petitioner “telling him [Dr. Patel] that his – he was having
some trouble out of his arm after the shot, after he took that shot . . . he told him that his
shoulder had been giving him some trouble since he had the shot.” Id. at 169.
On April 11, 2016, petitioner was seen by Dr. Patel. Pet. Ex. 4 at 38. The record
indicates that he presented for a check of his blood sugar and that he had “right
shoulder pain with restricted shoulder movements. Multiple joint pains.” Id. He was
assessed as having “right shoulder pain etiology to be determined,” osteoarthritis, acute
bronchitis, and diabetes mellitus II without complication. Id. at 39. The record indicates
that Dr. Patel. “[a]dvised mri of the right shoulder and Patient is being followed by Dr.
Jarrod Thacker.” Id. Dr. Patel recommended that petitioner restrict his activity and
continue physical therapy. Id.
On April 18, 2016, petitioner was seen by orthopedist Dr. Jamie Varney, MD.
Pet. Ex. 2 at 3. The record indicated that the visit was due to right shoulder pain and
that he stated that “the symptoms began as the result of started hurting after flu shot.”
Id. On examination, petitioner was found to have positive signs on the Hawkins and
Neer’s impingement tests and the cross body test for shoulder joint pathology. Id. at 5.
Dr. Varney’s records indicate that he “[d]iscussed that it is unlikely that the flu shot
actually caused any damage to his shoulder” and noted that an MRI showed chronic
tendinopathy with some tendinitis and bursitis and a downward sloping acromion “that
causes rotator cuff impingement”. Id. at 7. Dr. Varney considered that the “[p]revious
injection [which appears to refer to the flu shot] may have caused some inflammation of
his underlying problems.” Id. Dr. Varney administered a steroid injection into
petitioner’s right shoulder subacromial space. Id. at 6-7.
7
Dr. Varney’s records include an Orthopedic Information Sheet filled in by hand.
Pet. Ex. 2 at 10-13. Petitioner and his wife both testified that the handwriting on the
form belongs to petitioner’s wife. Tr. at 73, 175. The completed form indicates that the
appointment was for an injury from a flu shot that occurred at Dr. Patel’s office on
November 11, 2015. Pet. Ex. 2 at 11. The “reason for visit” response indicates pain in
right shoulder, numbness in thumb. Id. In response to a question about when
symptoms started, the answer is “same night got sore.” Id. Petitioner’s wife confirmed
this statement in her testimony. Tr. at 175.
At the hearing, petitioner was questioned about why he accepted a steroid
injection from Dr. Varney but avoided going to the emergency room because he did not
want another shot. Petitioner testified that the steroid injection “was supposed to help
my pain go and everything, but he did make my sugar go up.” Tr. at 135. He further
explained that the shot from Dr. Varney was “in the side of the shoulder . . . . It wasn’t
straight right here up front . . . . I told him I didn’t want to take it there.” Id. at 136.
Petitioner testified that he would not have agreed to the injection if Dr. Varney had tried
to put it in the front of his deltoid. Id. at 137.
Petitioner submitted an expert report from Jeffrey Boyd, M.D., a practicing
diagnostic radiologist specializing in musculoskeletal radiology. Pet. Ex. 13 at 1. Dr.
Boyd stated, “it is my opinion to a reasonable degree of probability that Mr. Wolford’s
MRI findings are consistent with having suffered from a SIRVA, for which the onset of
injury occurred four months prior to the scan.” Id. at 6. Petitioner’s MRI was done on
March 1, 2016, meaning that four months prior to the MRI would be early November.
Pet. Ex. 3 at 2.
III. Legal Standard
Pursuant to Vaccine Act § 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
§ 11(c)(1). A special master may find that the first symptom or manifestation of onset of
an injury 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.” Vaccine Act § 13(b)(2).
“Such a finding may be made only upon demonstration by a preponderance of the
evidence that the onset [of the injury] . . . did in fact occur within the time period
described in the Vaccine Injury Table.” Id.
A special master must consider, but is not bound by, any diagnosis, conclusion,
judgment, test result, report, or summary concerning the nature, causation, and
aggravation of petitioner’s injury or illness that is contained in a medical record.
Vaccine Act § 13(b)(1). “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
8
also generally contemporaneous to the medical events.” Curcuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
IV. Finding of Fact
To establish a Table SIRVA claim, a petitioner must establish, inter alia, that
petitioner’s pain occurred within 48 hours of vaccination. See Vaccine Injury Table;
Qualifications and Aids to Interpretation, 42 C.F.R. § 100.3(c)(10). The parties dispute
whether this criterion is met in this case.
In his Rule 4(c) report, respondent argued that petitioner had not established that
the onset of his symptoms occurred within 48 hours of vaccination. Respondent cited
the fact that petitioner did not seek medical care for his asserted vaccine injury until
over three months after vaccination, on February 16, 2016, and that at this visit he
reported that his right arm pain began one week after his November 2015 flu
vaccination. Respondent’s Rule 4(c) report, filed Jan. 16, 2018, at 5 (ECF No. 26).
During the May 23, 2019 status conference, the undersigned ruled that the onset
of petitioner’s symptoms occurred on the evening of November 11, 2015, the night of
the day on which petitioner received his flu vaccination. The undersigned bases her
ruling on the following evidence.
First, on the handwritten orthopedic information sheet, completed by Ms.
Wolford, it states that the injury date was 11-11-15, lists as the injury “flu shot,” and in
response to the pre-printed question of when the symptoms started states “same night
got sore.” Pet. Ex. 2 at 11. Second, Dr. Varney’s note for petitioner’s April 18, 2016
visit indicates “Larry states that the symptoms began as the result of started hurting
after flu shot.” Pet. Ex. 2 at 3. This evidence is supported by the testimony of petitioner
and Ms. Wolford that the nurse told him it would probably be sore, that petitioner’s pain
began the evening of the day he received the vaccine, and that the pain disturbed his
sleep during that first night. Tr. at 17-19, 35, 157-59.
Third, the note of chiropractor Dr. Thacker dated February 16, 2016 states,
“Patient explains the pain started after receiving a flu shot in November 2015.” Pet. Ex.
5 at 3. This record further indicates that the onset was “acute, one week after flu shot
was administered.” Id.
At the hearing, Ms. Wolford testified that her husband reported to Dr. Thacker
that his shoulder “got sore that day he took the shot and then it got worse that week.”
Tr. at 206-07. Dr. Thacker’s note indicating that onset was acute and within one week
is consistent with Ms. Wolford’s explanation of the pain. The undersigned found that
Ms. Wolford’s explanation for why Dr. Thacker’s note noted onset of one week was
reasonable. Although petitioner initially responded “yes” to respondent’s counsel’s
question about whether he reported to Dr. Thacker that the onset was acute, one week
after the flu shot, after obtaining clarification and being asked simply whether he
reported that the onset was one week after the flu shot, petitioner emphatically
responded that this was not correct.
Fourth, petitioner and his wife testified in their affidavits and at the hearing that
petitioner’s pain began on the evening of the flu vaccine, November 11, 2015.
9
Specifically, Pet. Ex. 11 at ¶¶ 6-7 and the testimony of petitioner and his wife during the
hearing support a finding that the onset of petitioner’s symptoms was the evening of
November 11, 2015. Petitioner testified that when the vaccine was administered, the
nurse “said she felt it tighten up on me, so I don’t know where she did or what, but she
said she felt it tighten up on me.” Tr. at 17. Petitioner testified that he began
experiencing aching and stiffness the evening of the vaccination. Tr. at 19. He testified
that the shoulder pain disturbed his sleep and awoke him at night beginning the first
night following the vaccination. Tr. at 35. Although Mr. Wolford’s testimony was difficult
to understand, he consistently placed the onset of his symptoms at the evening of the
vaccination.
Ms. Wolford’s testimony also consistently placed onset of petitioner’s symptoms
as occurring by the evening of the day the vaccine was administered. Ms. Wolford
recalled that when the nurse gave petitioner his shot, “she just, kind of like said, he’d
probably be a little sore because I felt it jerk.” Tr. at 157. She recalled the first name of
the nurse who administered the vaccine, which is supported by the vaccine
administration record. She testified, “after we got home, he was complaining with it
being sore, just like sore, a dull, aching sore, and – but he thought, you know, it was just
normal.” Tr. at 158. She testified that she did not call Dr. Patel’s office that day about
her husband’s pain because the nurse “said it was going to get sore, so he just thought
it would be normal.” Tr. at 201.
Dr. Boyd’s expert report found that petitioner’s MRI findings were consistent with
him having suffered a SIRVA in early November. This provides further support for the
undersigned’s finding that petitioner’s onset occurred soon after his November 11, 2015
vaccination.
Respondent places great weight on the fact that petitioner did not seek medical
care for approximately three months after vaccination. The undersigned notes that a
delay in seeking care is not uncommon in SIRVA cases and is not dispositive. See
Cooper v. Sec’y of Health and Human Servs., No. 16-1387V, 2018 WL 1835179, at *6
(Fed. Cl. Spec. Mstr. Jan. 18, 2018) (“the undersigned does not find a delay in
treatment of several months to be dispositive in and of itself regarding the question of
onset in a SIRVA case such as this”); see also Tenneson v. Sec’y of Health & Human
Servs., No. 16-1664V, 2018 WL 3083140 (Fed. Cl. Spec. Mstr. Mar. 30, 2018); Ray v.
Sec’y of Health and Human Servs., No. 16-1388V, 2018 WL 7051571, at *6 (Fed. Cl.
Spec. Mstr. Dec. 17, 2018) (citing Cooper). The Vaccine Act “does not mandate that
the time of first onset be determined by the earliest entry” in the medical records. Lopez
v. Sec’y of Health & Human Servs., No. 90-12V, 1990 WL 293414 (Cl. Ct. Spec. Mstr.
Dec. 10, 1990).
In this case, petitioner and Ms. Wolford testified that they live in a remote area
with few doctors. They testified that the nurse told petitioner that the injection site may
be painful as she had noted it “jerk” when she administered the vaccine. They testified
that because it was anticipated that petitioner’s shoulder would be sore, petitioner did
not pursue medical treatment immediately. They testified that when petitioner did
10
attempt to obtain care, his primary care physician was away for an extended period of
time.
The phone records filed by petitioner demonstrate that numerous calls were
made from their phone number to two numbers in Grundy, VA between the date of
vaccination and the date when petitioner first saw Dr. Thacker. The lack of record
evidence establishing who these phone numbers belong to limits the value of this piece
of evidence. Nonetheless, these phone records serve to bolster the testimony of
petitioner and his wife.
Petitioner and his wife testified that, because these events took place over the
holidays, other doctors were unable to fit him in promptly. During this time, petitioner
self-treated to alleviate his pain by using over the counter medications and a homemade
sling made from a sock.
Under these circumstances, the undersigned finds that a three-month delay in
receiving medical treatment is reasonable and does not cast doubt on whether
petitioner’s injury occurred within 48 hours of vaccination.
Respondent also emphasizes that Dr. Thacker’s record indicates that the onset
of petitioner’s symptoms occurred one week after the flu vaccination. While Dr.
Thacker’s record does state that onset was one week after the flu vaccine, that is not
dispositive. The Vaccine Act contemplates that a record may incorrectly record onset or
fail to record onset and provides that:
The 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.
Vaccine Act § 13(b)(2) (emphasis added)
Thus, the exact circumstances present in this case are contemplated by the
Vaccine Act. The fact that a medical record does not record onset or records a time of
onset outside of the Table provisions does not automatically eliminate the possibility
that a petitioner can establish a Table claim. Rather, petitioner may still prove a Table
claim if he demonstrates, by a preponderance of the evidence, that onset occurred
within the time set forth in the Table. In this case, petitioner has done so.
The undersigned found that Ms. Wolford’s explanation, that petitioner reported to
Dr. Thacker onset of pain the evening of November 11, 2015 and reported that the
symptoms worsened over the week following the flu shot, provides a reasonable
explanation for Dr. Thacker’s recorded time of onset. See, e.g., Stevens v. Sec’y of
Health & Human Servs., 90-221V, 1990 WL 608693, at *3 (Cl. Ct. Spec. Mstr. 1990)
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(noting that clear, cogent, and consistent testimony can overcome missing or
contradictory medical records).
Based on the undersigned’s review of the record as a whole, in particular the
portions cited herein, the undersigned finds that that the fact that (1) petitioner did not
receive medical care until three months after vaccination and (2) the medical record
from petitioner’s February 16, 2016 appointment with Dr. Thacker lists onset as one
week after the flu shot, do not establish that the onset of petitioner’s shoulder pain did
not occur within 48 hours of vaccination. After a review of all evidence, the undersigned
finds that petitioner has established, by a preponderance of the evidence, that the onset
of his shoulder pain occurred within 48 hours of his November 11, 2015 flu vaccination.
V. Respondent’s Request for Post-Hearing Briefing
The undersigned acknowledges that during the May 23, 2019 status conference
and in his June 12, 2019 status report, respondent indicated an interest in post-hearing
briefing. The undersigned determines that there is sufficient record evidence for a ruling
on the record on onset and that, in this case, briefing would not be helpful in evaluating
the evidence and determining the factual issue of onset.
Pursuant to Vaccine Rule 8(a), a special master is required “to determine the
format for taking evidence and hearing argument based on the specific circumstances
of each case and after consultation with the parties.” Vaccine Rule 8(a). “In any matter
not specifically addressed by the Vaccine Rules, the special master or the court may
regulate the applicable practice, consistent with these rules and with the purpose of the
Vaccine Act, to decide the case promptly and efficiently.” Vaccine Rule 1(b). In
conducting proceedings, a special master is responsible for “endeavoring to make the
proceedings expeditious, flexible, and less adversarial, while at the same time affording
each party a full and fair opportunity to present its case.” Vaccine Rule 3(b)(2).
The Vaccine Rules do not provide for routine briefing on factual issues and do
not require or contemplate post-hearing briefing. Rather, the rules provide special
masters with considerable flexibility in determining the appropriate procedures on a
case by case basis. In so doing, the special master is to select procedures that are
consistent with the program’s goal of making proceedings expeditious and less
adversarial while ensuring that all parties are given the opportunity to present their case.
In other cases, special masters have made onset rulings in other cases without
post-hearing briefing. See, e.g., Sherbine (Tinley) v. Sec’y of Health and Human
Servs., No. 17-0413, 2018 WL 5276612 (Fed. Cl. Spec. Mstr. Sept. 5, 2018); Brown v.
Sec’y of Health and Human Servs., No. 13-766, 2015 WL 4626797 (Fed. Cl. Spec. Mstr.
July 14, 2015) (issuing ruling on onset following fact hearing without briefing); see also
Caron v. Sec’y of Health and Human Servs., No. 15-0777, 2016 WL 7664309 (Fed. Cl.
Spec. Mstr. Dec. 14, 2016) (resolving onset without post-hearing briefing, although
onset was briefed prior to hearing).
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In this case, respondent filed his Rule 4(c) report contesting entitlement based in
part on concerns about onset nearly 18 months ago. Both parties have had ample
opportunity to present their case since that time. In this case in particular, the
undersigned finds that the record contains sufficient evidence to make a ruling on onset
without the need for briefs. Thus, the undersigned determines that post-hearing briefs
are not necessary or appropriate in this case.
VI. Conclusion
In light of all of the above, and in view of the submitted evidence, including the
medical records, witness testimony, and affidavits, the undersigned finds that the
onset of petitioner’s right shoulder injuries was within 48 hours of vaccination.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
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