In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-736V
Filed: July 2, 2019
Unpublished
CAROLYN ORRELL,
Petitioner, Special Processing Unit (SPU);
v. Influenza Vaccination; Shoulder
Injury Related to Vaccine
SECRETARY OF HEALTH AND Administration (SIRVA); Finding of
HUMAN SERVICES, Fact; Onset; Site of Vaccination
Respondent.
Michael G. McLaren, Black McLaren Jones Ryland & Griffee, P.C., Mepmphis, TN, for
petitioner.
Camille M. Collett, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON FACTS 1 AND SCHEDULING ORDER– SPECIAL PROCESSING UNIT
Dorsey, Chief Special Master:
On June 2, 2017, 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 she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a November 7, 2014 influenza (“flu”) vaccination.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
1
The 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 Because this unpublished ruling contains a reasoned explanation for the action in this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).
2
National 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).
I. Summary of Procedural History
Following the filing of the June 2, 2017 petition, petitioner submitted medical
records, an affidavit, and a Statement of Completion on June 6, 2017. ECF No. 7, 8.
Additional outstanding records were filed on August 9, 2017, along with an amended
statement of completion. ECF Nos. 10, 11.
Respondent filed a Rule 4(c) Report recommending that entitlement be denied in
this case on February 1, 2018. ECF No. 23. Respondent’s conclusion was based in
part on petitioner’s delay in reporting left shoulder pain, and delay in seeking treatment.
Id. 8-9. Respondent also argued that there is evidence petitioner’s pain and reduced
range of motion were not limited to her left shoulder, citing a fall that occurred on August
12, 2015 (10 months after petitioner’s vaccination) wherein petitioner injured her right
shoulder. Id. at 8.
On February 21, 2018, petitioner was ordered to submit additional affidavit
evidence addressing the onset of petitioner’s injury and any accompanying delay in
seeking treatment. ECF No. 24. Petitioner submitted three affidavits addressing the
onset of petitioner’s injury on February 23, 2018. Exs. 6-8.
On October 15, 2018, petitioner filed a Motion for a Factual Finding as to Onset
of SIRVA Within 48 Hours of Vaccination. ECF No. 42. Respondent filed a response
on November 30, 2018. ECF No. 43.
The undersigned recommending holding a fact hearing, which was held on June
4, 2019.
II. Fact Hearing
The undersigned held the fact hearing on June 4, 2019, with petitioner and three
other lay witnesses testifying. At the conclusion of the proceeding, the undersigned
informed the parties that she intended to issue a ruling from the bench regarding (1) the
onset of petitioner’s symptoms, and (2) the site of vaccination. See Hearing Transcript
(“Tr.”), filed June 18, 2019 (ECF No. 52), at 125-127. With regard to onset, the
undersigned found that the onset of petitioner’s injury was within 48 hours of her
vaccination. Tr. at 126. With regard to the cite of vaccination, the undersigned found
that the vaccination was administered in petitioner’s left arm. Tr. at 126. The
undersigned’s findings were based on the evidence submitted in this case, including the
exhibits, medical records, affidavits, and testimony. Tr. at 126. Additional citations to
the record and the underlying relevant evidence is set forth in the hearing transcript.
See Tr. at 125-128.
III. Conclusion
In light of all of the above and in view of the record as a whole, the
undersigned finds (1) that petitioner’s November 7, 2014 influenza vaccination
was administered into her left deltoid and (2) that the onset of petitioner’s alleged
shoulder pain resulting from her vaccination began within 48 hours of the
November 7, 2014 influenza vaccination.
2
Accordingly, the following is ORDERED:
• The parties are ordered to submit any additional evidence with
regard to entitlement by August 1, 2019; and,
• Petitioner shall file, by no later than August 1, 2019, either a Status
Report indicating that the parties are willing to discuss settlement or
a Motion for a Ruling on the Record.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3