In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
18-0970
UNPUBLISHED
NORA DEMPSEY, Chief Special Master Corcoran
Petitioner, Filed: February 17, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset; Tetanus-
HUMAN SERVICES, diphtheria Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA)
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On July 6, 2018, Nora Dempsey 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 tetanus vaccination administered on February
21, 2017. Petition at 1.3 The case was assigned to the Special Processing Unit of the
Office of Special Masters.
1 Because this unpublished fact ruling contains a reasoned explanation for the action in this case, I am
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). This means the fact 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, I agree that the identified material fits within this definition, I 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
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Petitioner filed an amended petition on December 23, 2019 to allege causation-in-fact in addition to her
Table claim. ECF No. 29.
For the reasons discussed below, I find the onset of Petitioner’s shoulder pain
occurred within 48 hours of vaccination, consistent with the Table requirements for a
SIRVA claim.
I. Relevant Procedural History
As noted above, the case was initiated in July 2018. On July 6, 2019, Respondent
filed his Rule 4(c) Report recommending that entitlement to compensation be denied
under the terms of the Vaccine Act. ECF No. 19. Respondent argued that, despite two
intervening medical appointments, Petitioner failed to seek treatment for her shoulder
injury for four months after her vaccination. Id. at 4. Additionally, Respondent asserted
that Petitioner had not proven actual causation. Id. at 5.4
On September 19, 2019 and January 21, 2020, Petitioner filed updated medical
and chiropractic records, a supplemental declaration, witness statements, a letter from
her primary care physician, medical literature, and a bank statement. ECF Nos. 23, 30.
Also on January 21, 2020, Petitioner filed a motion for a ruling on the record (“Motion”).
ECF No. 31. Respondent filed a response to the Motion on February 20, 2020, and on
February 27, 2020, Petitioner filed her reply. ECF Nos. 33, 34.
II. Issue
At issue is whether the onset of Petitioner’s left shoulder pain was within 48 hours
after vaccination, as required by the Vaccine Injury Table for a SIRVA injury after receipt
of the tetanus vaccine. 42 C.F.R. § 100.3(a) I.C (2017) (tetanus vaccination). The Table’s
“Qualifications and Aids to Interpretation” (“QAI”) for a SIRVA-based claim also require
that a petitioner’s pain have occurred within this same 48-hour timeframe. 42 C.F.R. §
100.3(c)(10).
III. Authority
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). I have discussed the factors to be considered in determining whether a
petitioner has met their burden in several recent decisions. I fully adopt and hereby
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Respondent also asserted that Petitioner failed to produce contemporaneous medical records that reflect
a decrease in her left shoulder range of motion during the four-month period following vaccination. However,
Respondent later acknowledged that “although reduced range of motion is included in the definition of a
Table SIRVA, there is no requirement that the limitation to range of motion occur within a particular period
of time following vaccination.” ECF Nos. 19, 33.
2
incorporate my prior discussion in section III of the following decisions: Marrow v. Sec’y
of Health & Hum. Servs., No. 17-1964V, 2020 WL 3639775 (Fed. Cl. Spec. Mstr. June 2,
2020); Robinson v. Sec’y of Health & Hum. Servs., No. 17-1050V, 2020 WL 3729432
(Fed. Cl. Spec. Mstr. June 5, 2020); Decoursey v. Sec’y of Health & Hum. Servs., No.18-
870V, 2020 WL 4673228 (Fed. Cl. Spec. Mstr. July 9, 2020).
In sum, 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 the petitioner’s injury or illness that is contained in a medical record.
Section 13(b)(1). Moreover, 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.” Section
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.
IV. Finding of Fact
I make the following finding regarding onset after a complete review of the record
to include all medical records, declarations, Respondent’s Rule 4 report, and briefing by
the parties. Specifically, I base the findings on the following evidence:
• Ms. Dempsey was administered a tetanus vaccine in her left shoulder on
February 21, 2017. Ex. 2.
• In her declaration, Ms. Dempsey averred that she experienced “instantaneous
left shoulder pain and it felt like my shoulder exploded.” Ex. 1 at 1-2. See also
Ex. 18 at 1.
• Myrtle Mazinke, Ms. Dempsey’s neighbor, submitted a declaration dated
September 13, 2019. Ex. 15. In it, she asserted “I believe I saw and spoke with
[Ms. Dempsey] the day after she went to urgent care. [Ms. Dempsey]
complained to me [about] pain in her left shoulder from the tetanus shot.” Id. at
2.
• Barbara Loyd, another of Ms. Dempsey’s neighbors, submitted a declaration
dated September 18, 2019. ECF No. 17. In it, she stated that Ms. Dempsey
“called me either the day she got the inoculation or the following day to alert
me of her [shoulder] problem.” Id. at 2.
• In the petition, it is alleged that Ms. Dempsey returned to Main Street Urgent
Care “[a]bout four days after receiving the tetanus vaccination in her left
shoulder.” Pet. at 2. In her supplemental declaration, however, Ms. Dempsey
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acknowledged that this visit actually occurred on March 6, 2017 (almost two
weeks post-vaccination), but that its purpose was “to complain about the
ongoing pain in my left shoulder.” Ex. 18 at 2. See also Ex. 1 at 2. In support of
this assertion, Ms. Dempsey filed her bank statement reflecting that a refund
from the urgent care facility was credited to her account on or around March 6,
2017. Ex. 14 at 1.5 No specific record from this particular urgent care visit has
been filed that would corroborate Petitioner’s allegations about the purpose of
the visit.
• Ms. Dempsey presented to Dr. Mark Riddoch, her primary care physician, on
March 23, 2017 (a little over one-month post-vaccination) for her annual
physical examination. Ex. 4 at 1-6. The medical record documenting this visit
does not indicate that Petitioner complained of shoulder pain. Id.
• In her supplemental affidavit, Ms. Dempsey attests that she reported her left
shoulder pain to Dr. Riddoch and, in response, “[h]e explained I had frozen
shoulder, but then moved on to basic Insurance requirements for a wellness
exam.” Ex. 18 at 2. See also Ex. 1 at 2.
• Ms. Dempsey presented to her allergist, Dr. Jason Peet, on April 6, 2017 (a
little over six weeks post-vaccination) regarding a rash. Ex. 5 at 1-2. The
medical record documenting this appointment indicates that joint pain, joint
stiffness, and joint swelling were not found. Id. at 1. There is no indication that
Ms. Dempsey mentioned her left shoulder during this visit. Id. at 1-2.
• In her affidavit, Ms. Dempsey states that she did not report her left shoulder
pain during her April 6, 2017 appointment with Dr. Peet “because I was seeing
my allergist.” Ex. 1 at 2.
• On June 21, 2017, (four months after vaccination), Ms. Dempsey presented to
Dr. Clint Beicker, an orthopedist, with a complaint of shoulder stiffness. Ex. 6
at 9. Ms. Dempsey stated that her symptoms began “about 2/2017.” Id.
• Ms. Dempsey underwent an initial physical therapy evaluation on June 28,
2017. Ex. 7 at 1-4. In addition to discussing right wrist and thumb pain, she
reported a “heavy and numb feeling after she was given a tetanus shot . . . she
had immediate shoulder pain from injection.” Ex. 7 at 1. The date of onset was
noted as January 2017. Id.
• Ms. Dempsey presented to Dr. Peter Romanick, an orthopedist, on October 10,
2017 with a complaint of left shoulder pain. Ex. 6 at 16-19. Dr. Romanick noted
that “[Petitioner] says in February she had a tetanus shot, since then she has
had pain and a frozen shoulder.” Id. at 16.
5Respondent notes that “[a]lthough the transaction was recorded on March 6, 2017, the actual payment
appears to have been made on March 3, 2017.” Resp. at 10, n.2.
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• On October 16, 2017, Ms. Dempsey began a second course of physical
therapy. Ex. 7 at 43-46. The initial evaluation indicates that Ms. Dempsey “[h]ad
a tetanus shot in left shoulder back in January 2017 and had some pain
immediately after injection.” Id. at 43.
• Ms. Dempsey presented to Dr. Drew Wallace, her chiropractor, on April 3,
2018. Ex. 9 at 1. The record documenting this visit reflects that Ms. Dempsey
reported that she “had a flu vaccine injected into her left upper arm and
shoulder on 2-21-17.6 She noted immediate pain with the injection, and within
several days [she] had pain and difficulty moving her shoulder and arm.” Id.
Overall, the evidence offered in support of Petitioner’s onset allegation is not
especially robust, and Respondent has raised reasonable questions about the matter.
Nevertheless, I find that the above items of evidence collectively establish (if weakly) that
Ms. Dempsey’s shoulder pain most likely began within 48 hours of receiving the February
21, 2017 tetanus vaccine. While some of Petitioner’s medical records do not reflect a
precise date of onset and include vague temporal references (i.e., “since receiving a
tetanus shot. . .”), or indicate that her shoulder pain began in January 2017, on at least
three occasions she reported that her pain began in February 2017. See, e.g., Ex. 6 at 9,
16; Ex. 9 at 1. Moreover, in one instance, she noted “immediate pain with injection.” Ex.
9 at 1. This history is further supported by Petitioner’s own declarations as well as her
witness statements which describe the onset of Petitioner’s condition in greater detail.
Ms. Dempsey’s assertion that she returned to Main Street Urgent Care to complain
about her shoulder also provides some support for her onset claim. Although the precise
date of this visit and the reason she was issued a refund remain unclear, her bank
statement suggests that she presented to the administering facility within two weeks of
receipt of her vaccination. Given the temporal association and Petitioner’s own unrebutted
assertions, it can be concluded on this slim record that that the purpose of Ms. Dempsey’s
visit was as she alleges - to complain about her shoulder pain.
Admittedly, there is evidence of two intervening medical appointments at which
time Petitioner made no mention of her shoulder injury or its purported onset. First, there
is the record of the March 23, 2017 wellness exam with Dr. Riddoch, her primary care
physician. Resp. at 8. Petitioner attests that she did mention her shoulder pain at this
visit, but (as Respondent observes) the record itself is silent on the issue. Ex. 1 at 2; Ex.
18 at 2; Resp. at 8.7 Second, Petitioner had an appointment approximately six weeks
6
Respondent has not argued that this misstatement, regarding the type of vaccine, has any bearing on his
decision to contest onset.
7
Respondent also argues that the varying level of detail offered in Petitioner’s original and supplemental
declarations establish contradictions in her purported statements to Dr. Riddoch. Resp. at 9. Although it is
5
post-vaccination with an allergist, at which time she also failed to mention her shoulder
pain.
Of these visits, the second gives me less pause than the first. Petitioner’s allergist
appointment was for the purpose of discussing “skin problems.” Ex. 5 at 1. I would not
expect an individual to discuss shoulder pain at such a specialist appointment. See, e.g.,
Williams v. Sec’y of Health and Human Servs., 17-830V, 2019 WL 1040410, at *8 (Fed.
Cl. Spec. Mstr. Jan. 31, 2019) (finding onset of SIRVA within 48 hours despite four
intervening medical encounters that did not reference shoulder pain because the medical
appointments “were for specific medical concerns unrelated to petitioner’s left shoulder
concern.”). An intervening medical encounter with a specialist (whose practice is
generally unrelated to the musculoskeletal system or pain management) is not enough to
disprove onset, especially given the overwhelmingly consistent assertions about close-
in-time onset at all subsequent medical encounters.
The visit with Dr. Riddoch, however, can also be distinguished. It is certainly
reasonable to expect a person suffering from a recent shoulder injury to raise the matter
at a general physical exam. In a case where there was a much longer gap from
vaccination to first recorded instance of complaints, or other record inconsistencies, this
omission would be more damning. But in this case, Petitioner clearly began complaining
“on the record” of shoulder pain within four months of vaccination, and she consistently
related onset to the vaccination. She has also offered reasonable and persuasive third-
party witness support for her contentions. The overall weight of the evidence is sufficiently
supportive of her onset allegations to find in her favor, even if her case would be better
supported by corroborating intervening medical record evidence, as Respondent seems
to desire.
Finally, and on a related note, I do not find the four-month treatment delay to be
dispositive regarding the issue of onset. Ms. Dempsey’s medical records and affidavits
reflect a pattern similar to other SIRVA claims, in which injured parties reasonably delay
treatment, often based on the assumption that their pain is likely transitory. See, e.g.,
Tenneson v. Sec’y of Health & Human Servs., No. 16-1664V, 2018 WL 3083140, at *5
(Fed. Cl. Spec. Mstr. Mar. 30, 2018), mot. for rev. denied, 142 Fed. Cl. 329 (2019) (finding
a 48-hour onset of shoulder pain despite a nearly six-month delay in seeking treatment);
Williams v. Sec’y of Health & Human Servs., No. 17-830V, 2019 WL 1040410, at *9 (Fed.
Cl. Spec. Mstr. Jan. 31, 2019) (noting a delay in seeking treatment for five-and-a-half
months because petitioner underestimated the severity of her shoulder injury); Knauss v.
reasonable as a general matter to question the veracity of statements prepared after-the-fact and once
litigation has begun, I do not find that in this case the fact that a second statement is more detailed, or
varies somewhat from the first, is a strong basis for concluding that none of the alleged facts (that Petitioner
discussed her shoulder with Dr. Riddoch) likely occurred.
6
Sec’y of Health & Human Servs., 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May
23, 2018) (noting a three-month delay in seeking treatment).
Accordingly, I find there is preponderant evidence to establish that the onset of Ms.
Dempsey’s left shoulder pain occurred within 48 hours of the February 21, 2017 flu
vaccination.
V. Scheduling Order
Given my finding of fact regarding onset – and specifically that it is consistent with
the Table requirements of a SIRVA claim – Respondent shall evaluate and provide his
current position regarding the merits of Petitioner’s case.
Respondent shall file, by no later than Friday, March 19, 2021, a status report
indicating whether he intends to defend this matter in any regard other than onset.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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