In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1106V
UNPUBLISHED
KIMBERLY HARTMAN, Chief Special Master Corcoran
Petitioner,
v. Filed: September 14, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Findings of Fact; Onset; Ruling on
Entitlement; Influenza (Flu); Shoulder
Respondent. Injury Related to Vaccine
Administration (SIRVA).
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On July 30, 2019, Kimberly Hartman 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 as a result of her receipt of an influenza (“flu”)
vaccine on October 29, 2018, she suffered a shoulder injury related to vaccination
(“SIRVA”) as defined on the Vaccine Injury Table (the “Table”). Petition (ECF No 1) at 1;
see also Amended Petition (ECF No. 29) at 1 (expressly alleging a Table injury). The
case was assigned to the Special Processing Unit of the Office of Special Masters.
1 Because this unpublished opinion contains a reasoned explanation for the action in this case, I am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 opinion 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).
For the reasons discussed below, I find that the preponderance of evidence
supports that Petitioner suffered the onset of shoulder pain within 48 hours after
vaccination, and that Petitioner is entitled to compensation for a right SIRVA.
I. Relevant Procedural History
After initiating her claim, Petitioner filed additional records and a statement of
completion in February 2020. Nearly nine months later, Respondent completed his formal
review of the claim and invited settlement discussions. ECF No. 21. Petitioner conveyed
a settlement demand for pain and suffering, plus “nominal” out of pocket expenses,
promptly on November 22, 2020, to which Respondent countered on December 23, 2020.
ECF Nos. 23, 25. On January 26, 2021, however, Petitioner advised that the parties were
too far apart in their settlement discussions. ECF No. 26. Accordingly, on March 25, 2021,
Respondent duly filed his report formally opposing compensation. Rule 4(c) Report (ECF
No. 28), after which the parties briefed entitlement. Pet. Motion (ECF No. 32); Response
(ECF No. 33); Reply (ECF No. 34). This matter is now ripe for adjudication.
II. Relevant Factual Evidence
I have fully reviewed the evidence, including all medical records and affidavits,
Respondent’s Rule 4(c) report, and the parties’ briefing. I find most relevant the following:
• At the time in question, Ms. Hartman was 50 years old, employed as a social
worker, and enrolled in the U.S. Army Reserves. Ex. 5 at 17; Ex. 8 at 55-68.
She had a non-contributory medical history and was generally healthy. Ex. 3 at
89, 91-93; Ex. 4 at 72-74, 85-87.
• On October 29, 2018, Petitioner received the subject vaccine in her right deltoid
muscle. Ex. 7 at 1.
• Twenty-eight (28) days later, on November 26, 2018, Petitioner presented to
her primary care practice seeking medical attention for a history of “right arm
deltoid muscle pain since getting her flu shot 10/27/2018 [sic], she says it hurts
with any movement of the arm, she also reports weakness in that muscle, she
takes aleve which helps until it wears off.” Ex. 3 at 16. The nurse practitioner
did not observe any deformity, erythema, edema, or limitations in range of
motion, and did not offer any assessment more specific than “right arm pain.”
Id. She prescribed a one-month course of the non-steroidal anti-inflammatory
drug (“NSAID”) Naprosyn. Id.
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• On December 19, 2018, Petitioner presented to orthopedic surgeon Dr. Daniel
Wartinbee,3 seeking treatment for right arm and shoulder pain “ever since the
end of October… after she had a flu shot,” which persisted despite taking the
prescription NSAID. Ex. 4 at 12. Dr. Wartinbee corroborated Petitioner’s
additional complaint of reduced range of motion on forward elevation,
abduction, external and internal rotation, and reaching behind her back. Id. He
recorded that these findings were “consistent with frozen shoulder, or adhesive
capsulitis,” recommended exercises, and referred to a colleague for further
treatment including a potential steroid injection. Id. at 12-13.
• The next day, December 20, 2018, Ms. Hartman saw sports medicine doctor
Dr. John Hulvey,4 who recorded a similar history of shoulder and upper arm
pain since the flu vaccine on October 29, 2018. Ex. 4 at 9. The pain had
worsened over time despite the NSAID and was exacerbated with activity. Id.
Dr. Hulvey observed decreased range of motion on forward flexion and “pain
and weakness with resisted external rotation on the right,” which was consistent
with mild adhesive capsulitis. Id. Petitioner accepted Dr. Hulvey’s
recommendations of formal physical therapy and try a different prescription
NSAID. Id. If Petitioner returned seeking further treatment, Dr. Hulvey would
evaluate whether “a subacromial versus subacromial/glenohumeral
corticosteroid injection” would be more appropriate. Id. at 9-10.
• On January 2, 2019, Petitioner began physical therapy for right shoulder pain
“following getting a flu shot in October 2018.” Ex. 5 at 184. She demonstrated
pain (rated at 8/10), weakness, and decreased range of motion, which were
recorded to be consistent with infraspinatus tendinopathy. Id. Her functional
score was 54/100. Id. She went on to complete three physical therapy sessions
per week over the next six weeks. Id. at 185-297.
• On January 7, 2019, Petitioner completed an annual periodic health
assessment form in her capacity as a member of the U.S. Army Reserves. Ex.
8 at 55-68. She did not report taking medications other than Aleve or her
shoulder injury specifically, but she did report “recurring muscle, joint, or low
back pain” and undergoing physical therapy within the past year. Id. at 67-68.
3 Dr. Wartinbee specializes in treatment of the hand, wrist, forearm, and elbow. South Carolina Sports
Medicine & Orthopedic Center – Dr. Daniel A. Wartinbee, M.D., at https://scsportsmedicine.com/our-
team/daniel-a-wartinbee-md (last accessed September 2, 2021).
4 South Carolina Sports Medicine & Orthopedic Center – Dr. John T. Hulvey, M.D., at
https://scsportsmedicine.com/our-team/john-t-hulvey-jr-md (last accessed September 2, 2021).
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• The above record’s omission of shoulder pain is overshadowed by the records
of physical therapy, including on the following day, January 9, 2019, when
Petitioner reported pain currently at 1/10 but worst of 8/10 with activity and was
observed to have functional limitations. Ex. 5 at 232.
• On March 26, 2019, Petitioner completed the planned physical therapy course.
The therapist recorded that she was “rehabilitated.” She had made excellent
improvements, was experiencing only minimal pain with activities of daily living
and some persistent strength deficits, and was expected to make further gains
with a home exercise program. Ex. 5 at 295-97.
• On April 10, 2019, Petitioner presented to her primary care provider requesting
adjustments of several medications for conditions unrelated to her shoulder.
Ex. 3 at 13-15.
• On June 11, 2019, upon returning to Dr. Hulvey, Petitioner reported that her
shoulder had largely improved and she had stopped taking prescription
NSAIDs. Ex. 6 at 9-12. She had full range of motion and normal strength, but
“lingering” pain along the anterior deltoid upon a cross-arm adduction
maneuver. Id. at 12. Dr. Hulvey planned an MRI arthrogram to evaluate the
labrum. Id.
• On June 24, 2019, over the telephone, Dr. Hulvey and Petitioner reviewed that
the MRI visualized a non-detached posterior supral labral tear with a small
para-labral cyst. Ex. 6 at 13; Ex. 11 at 79-81. Petitioner did not feel that her
pain was severe enough to warrant Dr. Hulvey’s suggestions of a subacromial
corticosteroid injection or surgical consultation. Ex. 11 at 79. However, she
planned to follow up if the pain worsened to a point that she needed a steroid
injection or an exemption from push-ups during her military fitness training. Id.
• Records from at least eight (8) intervening encounters with other providers,
primarily concerning hip pain, do not address Petitioner’s shoulder. Ex. 11 at
44-78.
• On December 5, 2019, Petitioner returned to Dr. Hulvey. She reported “a little
bit,” “minimal” shoulder discomfort with crossarm adduction” but she had no
limitations in daily activity and would continue to monitor her pain rather than
seeking treatment such as a steroid injection. Ex. 11 at 40-43.
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• At the next follow up on June 4, 2020, Dr. Hulvey recorded that: “During the
course of moving boxes, she has noted some recurrence of her right shoulder
pain primarily along the anterior deltoid region.” The physical examination was
normal except for a mildly positive O’Brien’s sign. But again, Petitioner deferred
any treatment. Ex. 11 at 4-6. There are no further records.
• In her July 29, 2019 affidavit, Petitioner avers that within two days (48 hours)
after receiving the flu vaccine, she developed “excruciating” pain in her right
shoulder that worsened to sharp stabbing pain with movement, especially upon
raising her arm, turning a steering wheel, and lying on her side. Ex. 2 at ¶ 10.
The pain worsened and became “extreme” during most activities of daily living
such as getting dressed, showering, and cleaning. Id. Petitioner does not
address her delay in seeking treatment.
• Petitioner also avers that the shoulder injury has negatively impacted her
career, participation in the Army Reserves, relationships with her husband and
children, and other aspects of her life. See generally Ex. 2.
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). 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.
Section 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 also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Human Servs.,
993 F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, at *19. And the Federal Circuit recently “reject[ed] as
incorrect the presumption that medical records are accurate and complete as to all the
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patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 381, 391 (1998). The Court later outlined four possible explanations for
inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed.
Cl. at 391 (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering
such testimony must also be determined. Andreu v. Sec’y of Health & Human Servs., 569
F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d
1570, 1575 (Fed. Cir. 1993).
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.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing § 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of
Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the
special master's discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
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IV. Findings of Fact Regarding Onset
In opposing compensation, Respondent has disputed only whether Petitioner
established the onset of shoulder pain in the affected shoulder within 48 hours after
vaccination, as required by the Table and accompanying Qualifications and Aids to
Interpretation for SIRVA. Rule 4(c) Report at 6; Response at 1 (citing 42 C.F.R. §§
100.3(a)(XII)(A), (c)(10)(ii)).
On this point, Respondent first objects that Petitioner relies on her own claims, set
forth in her affidavit, in support of onset. Response at 1-2 (citing section 13(a)(1)
(prohibiting a special master from finding facts set forth in section 11(c)(1), including onset
within the Table timeframe, “based on the claims of a petitioner alone, unsubstantiated
by medical records or medical opinion”). Respondent also cites the Court of Federal
Claim’s prior articulation of the legal standard in Lett: “Ultimately, the petitioner must
substantiate the occurrence of a compensable, vaccine-related injury with independent
evidence.” Id. (citing Lett v. Sec’y of Health & Human Servs., 39 Fed. Cl. 259, 260 (1997).
But Lett’s holding was merely that “when there is no mention of a seizure in any
health record and when the only evidence of a seizure rests on the statements of the
petitioners, the requirements of [Section 13(a)(1)] of the Vaccine Act are not met.” 39
Fed. Cl. at 263. This is distinguishable from when subsequent medical records do
document the symptoms at issue, as well as the petitioner’s history of a temporal
association with the vaccine, as seen here. Reply at 5 (citing Ray v. Sec’y of Health &
Human Servs., No. 16-1388V, 2018 WL 7051571 (Fed. Cl. Spec. Mstr. Dec. 17, 2018));
see also Gear v. Sec’y of Health & Human Servs., No. 18-1684V, 2020 WL 5407825, at
*9 (Fed. Cl. Spec. Mstr. Aug. 20, 2020). Moreover, the Federal Circuit has recently
reasoned, albeit in a different context, that sworn testimony as to facts within the personal
knowledge of an individual, even the individual pursuing compensation for an alleged
vaccine injury, can represent objective evidence bearing on these kinds of factual issues.
James-Cornelius v. Sec’y of Health & Human Servs., 984 F.3d 1374, 1380 (Fed. Cir.
2021). Such an affidavit on its own cannot establish onset, but should be considered
within the context of other evidence.
Respondent also contends that Petitioner’s medical records are not “independent
evidence” because they only recount Petitioner’s own history of when her shoulder pain
began. Response at 2. This argument seeks to evade the long-held and consistent
presumption that information contained within medical records, including “information
supplied to… health professionals” is trustworthy, because it is intended to facilitate
diagnosis and treatment and it is generally supplied shortly after the events in question.
Cucuras, 993 F.2d at 1528. Consistent with this presumption, in this case, Petitioner first
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reported her shoulder injury less than one month after vaccination and she repeatedly
sought treatment to relieve her pain and loss of function.5
Four different medical providers at separate practices chronicled Petitioner’s
history of shoulder pain “since,” “ever since,” or “following” the flu vaccine at the end of
October. The primary care provider’s first record inadvertently provides that the vaccine
was on October 27th, but several others wrote the correct date of October 29th. While the
records do not expressly state that the pain began within 48 hours, the descriptions of
pain “since” the vaccination are persuasive absent evidence supporting an alternative
onset outside of that Table timeframe (or any other inciting event). There is no such
competing evidence to weigh in this case.
Taken altogether, the medical records, accompanied by Petitioner’s affidavit,
support a finding that she suffered the onset of shoulder pain within 48 hours after the flu
vaccination.
V. Other Table Requirements and Entitlement
In light of the lack of other objections and my own review of the record, I find that
Petitioner has established the other requirements for a Table SIRVA claim. Specifically,
there is not a history of prior shoulder pathology that would explain her injury. 42 C.F.R.
§ 100.3(c)(3)(10)(i). There is no evidence of any other condition or abnormality that
represents an alternative cause. 42 C.F.R. § 100.3(c)(3)(10)(iii). 6 The medical records
5 In the Rule 4(c) Report, Respondent also observed that Petitioner’s medical providers did “not specifically
find that her vaccination caused shoulder pain.” Rule 4(c) Report at 6. This observation might bear on an
assessment of causation-in-fact, as to whether the petitioner had established Althen prong two and whether
Respondent had presented a more likely alternative cause for the injury. But it does not fit within the current
inquiry regarding onset. Multiple medical providers accepted, for the purposes of diagnosis and treatment,
Petitioner’s history that her onset of shoulder pain was shortly after vaccination. In the absence of any
evidence supporting an alternative time period or association with another inciting event, these medical
records are probative in supporting Petitioner’s claim.
6 Respondent also averred in the Rule 4(c) report: “There is no evidence that the posterior superior labral
tear observed in the MRI is in any way related to Petitioner’s vaccination. When Petitioner later returned to
Dr. Hulvey for additional treatment, examination indicated that her rotator cuff was intact and her pain was
attributed to a labral tear. Dr. Hulvey does not relate Petitioner’s posterior superior labral tear to her
vaccination.” Rule 4(c) Report at 6 (citing Ex. 11 at 81, 43, 6). I conclude that Respondent does not contend
that this point is a barrier to a Table SIRVA claim, as it was not included in his final brief. However, if
Respondent had intended to press this point, I likely would have found it to be unavailing. Within the Vaccine
Program, it is frequently recognized that a typical adult, particularly as he or she approaches middle age,
commonly tends to develop some degree of “wear and tear” involving the shoulder which can be
asymptomatic. SIRVA is characterized by the acute onset of inflammation and pain, which can be
exacerbated by that underlying pathology.
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and affidavits support that her shoulder pain and reduced range of motion were limited to
the left shoulder. C.F.R. § 100.3(c)(3)(10)(iv). The contemporaneous vaccination record
reflects the site of administration as her right deltoid. Ex. 7; Sections 11(c)(1)(A) and (B)(i).
Petitioner has not pursued a civil action or other compensation. Ex. 1 at ¶ 12; Section
11(c)(1)(E). Finally, Petitioner suffered the residual effects of her injury for more than six
months after vaccination. Thus, Petitioner has satisfied all requirements for entitlement
under the Vaccine Act.
VI. Conclusion
Based on the entire record, I find that Petitioner has provided preponderant evidence
satisfying all requirements for a Table SIRVA. Petitioner is entitled to compensation. A
subsequent order will set further proceedings towards resolving damages.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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