In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1570V
UNPUBLISHED
VANESSA MORRIS, Chief Special Master Corcoran
Petitioner,
v. Filed: December 15, 2021
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Findings of Fact; Onset; Influenza
(Flu); Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA);
Table Claim Dismissal.
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Benjamin P. Warder, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW DISMISSING TABLE CLAIM1
On October 9, 2019, Vanessa Morris 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 an influenza (“flu”) vaccine received
on October 4, 2017, she suffered a shoulder injury related to vaccination (“SIRVA”) as
defined on the Vaccine Injury Table (the “Table”). Petition (ECF No. 1) at Preamble. 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Because this unpublished opinion contains a reasoned explanation for the action in this case, I am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.
2
National 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 Petitioner’s Table SIRVA claim must
be dismissed, because the evidentiary record does not support the conclusion that the
requisite onset of her pain occurred within 48 hours following administration of the flu
vaccine.
I. Relevant Procedural History
The Petition and supporting documentation were deemed to be sufficiently
complete, and the matter was assigned to the SPU in October 2019. On January 12,
2021, Respondent completed his formal medical review of the case and invited litigative
risk settlement discussions. ECF No. 20. Petitioner thereafter transmitted a settlement
demand and supporting documentation on April 12, 2021. ECF No. 22.3 Respondent
provided an offer on May 6, 2021, but the parties reached an impasse in their
negotiations. ECF No. 23.
On August 24, 2021, Respondent filed his Rule 4(c) Report contending that
Petitioner had not established onset within 48 hours of vaccination, as required for a Table
SIRVA. Respondent argued that within the medical records, Petitioner provided an
incorrect date of vaccination on multiple occasions,4 and that she also provided
inconsistent information regarding the onset of her left shoulder pain. Rule 4(c) Report
(ECF No. 26) at 14.
I then directed the parties to file briefs and any other evidence that would assist
my resolution of the disputed issues. ECF No. 27. Petitioner filed a motion for a ruling on
the record on October 6, 2021, ECF No. 28, to which Respondent filed a response on
October 15, 2021, ECF No. 29. Petitioner did not file a reply. This matter is now ripe for
adjudication.
II. 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 Section 11(c)(1).
A special master must consider, but is not bound by, any diagnosis, conclusion, judgment,
3
The case does not involve a workers’ compensation claim or a Medicaid lien. ECF No. 10. Petitioner
initially reported that she was seeking an award for pain and suffering, out of pocket expenses, and lost
wages She suggested that her lost wages were “complex” and required an expert economist (which request
I deferred during the parties’ litigative risk settlement discussions). ECF Nos. 19-21.
4
However, Respondent recognized that there was preponderant evidence that Petitioner did receive the
subject flu vaccine on October 4, 2017; that the vaccine was administered in her left deltoid, as alleged;
and that the vaccine was intended for intramuscular administration. Rule 4(c) Report at 2; n. 2-3.
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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
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).
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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).
III. Relevant Factual Evidence
I have fully reviewed the evidence pertaining to the onset question, including all
medical records, Respondent’s Rule 4(c) Report, and the parties’ briefs.5 find most
relevant the following:
• Upon receiving the subject vaccination, Ms. Morris was 58 years old. She was
generally healthy, with no history of problems with her left shoulder. See, e.g.,
Ex. 2 at 22-26, 161-99; Ex. 7 at 3-9; Ex. 9 at 7-62; Ex. 10 at 7-78.
• Petitioner was employed by Blue Cross Blue Shield in Arkansas. See, e.g., Ex.
4 at 6, 33; Ex. 5 at 52 (Petitioner’s self-identification as a “specialist”).
• On October 4, 2017, a registered nurse administered the subject flu vaccine,
which was intended for intramuscular administration, to Petitioner’s left deltoid.
Ex. 1 at 1; Rule 4(c) Report at 2, n. 2-3.
• While the vaccine record is from Freiderica Pharmacy & Compounding,
Petitioner and a coworker recall that the vaccines were administered at their
workplace’s breakroom. Exs. 13-14.
5
I recognize that Petitioner submitted two affidavits herself, as well as one from a coworker with
recollections concerning the circumstances of their vaccinations in the workplace. Exs. 11, 13-14. These
affidavits do not address the onset of Petitioner’s shoulder pain, however.
4
• On November 8, 2017, Petitioner left a message for her primary care practice.
Shawn Fells recorded that “since [Petitioner] received the flu shot in late
October,” she had been experiencing pain at the injection site and difficulty
moving her arm, and that she had taken Tylenol and Ibuprofen with no relief.
Ex. 2 at 20.
• The following day, November 9, 2017, a different individual, Nurse Jill Ashley,
returned the call. Nurse Ashley memorialized in the record pertaining to this
contact that Petitioner “had no pain in her arm for 2 days after her flu shot, but
after the 2 days she has had a lot of pain…” Ex. 2 at 20 (emphasis added).
Nurse Ashley also recorded that Petitioner had “read online that people have
experienced this after the flu shot” and “discussed [that Petitioner’s pain] may
or may not be related to inj.” Id. Nurse Ashley scheduled an appointment for
the following Wednesday, November 15, 2017, for the primary care doctor,
Rhodora Rhagavan, M.D., to assess Petitioner’s shoulder and discuss
treatment options. Id.
• At the November 15, 2017, appointment, Dr. Rhagavan recorded Petitioner’s
history of “pain in her left arm from flu shot x6 weeks,” despite the application
of ice, heat, electronic stimulation, and ibuprofen. Ex. 2 at 18. Dr. Rhagavan
observed that Petitioner had restricted range of motion due to pain. Id. Dr.
Rhagavan recorded that Petitioner’s left arm pain was a “vaccine reaction,” and
referred her to physical therapy. Id.
• Upon starting physical therapy on December 12, 2017, Petitioner reported “left
upper arm and shoulder pain that began on October 11th after getting her flu
shot.” Ex. 3 at 153.
• Petitioner’s initial course of physical therapy consisted of nine visits. Ex. 3 at
153-81.6 On January 14, 2018, she self-discharged, planning to follow up with
Dr. Rhagavan for additional testing and treatment options. Id. at 180-81.
• On January 24, 2018, Petitioner followed up with Dr. Raghavan for continued
pain in her left arm, which “started of [sic?] after receiving a flu vaccination in
that arm,” and had been present “for about 4 months now.” Ex. 2 at 16.
Petitioner’s left arm “hurt more than before” despite the non-steroidal anti-
inflammatory medications (“NSAIDS”) and physical therapy. Id. Dr. Raghavan
recorded that Petitioner’s pain was “chronic,” ordered an ultrasound,
administered a Toradol injection, and prescribed Tramadol oral pain
medications. Id.
6
The physical therapy sessions are out of order, but numbered, within Exhibit 5. The sessions were on
December 12th, 14th, 19th, 21st, 27th, and 28th, 2017; and January 2nd, 4th, and 9th, 2018.
5
• Dr. Raghavan referred Petitioner to a neurologist on January 25th, and
prescribed gabapentin as a further intervention for her pain on February 1st,
2018. Ex. 2 at 14-15.
• At their February 6, 2018, initial consult, the neurologist Julia McCoy, M.D.,
recorded:
“[Petitioner] was in good health until October 11th, when she
received a standard influenza injection at a local pharmacy. An
IM injection in the left deltoid produced no immediate pain or
significant change until the next day when the patient ‘developed
sharp pains’ notably over the left deltoid with progressive pain in
the proximal arm with pain on range of motion. The patient was
given anti-inflammatories which did take the edge off and was
given physical therapy for nine weeks which was not beneficial.”
Ex. 2 at 155. Dr. McCoy’s impression was “influenza injection-induced adhesive
capsulitis.” Id. at 155-57. An EMG nerve conduction study found no evidence
for Parsonage-Turner syndrome. Id. at 157-60. Dr. McCoy recommended an
MRI of the left shoulder and further evaluation by orthopedist Martin Siems,
M.D. Id. at 157.
• On February 22, 2018, at their initial consult, Dr. Siems recorded that Petitioner
had left shoulder pain “since she received a flu shot this year.” Ex. 5 at 26.
Petitioner’s pain and stiffness had persisted despite “nine weeks of physical
therapy.” Id. Dr. Siems ordered an MRI to confirm his assessment of adhesive
capsulitis and to rule out a rotator cuff tear. Id.
• The February 28, 2018, MRI did not identify a rotator cuff tear or tendinopathy.
The findings were consistent with adhesive capsulitis, mild acromioclavicular
arthrosis, and minimal subacromial and subdeltoid bursitis. Ex. 5 at 57-58.
• On March 12, 2018, Dr. Siems manipulated Petitioner’s left shoulder under
anesthesia. Ex. 6 at 5; see also Ex. 5 at 21-25 (related medical appointments).
• Later that day, Petitioner began treatment with a new physical therapist for the
treatment of “adhesive capsulitis sustained as a result of receiving the flu shot
5 months ago.” Ex. 3 at 106. She ultimately underwent 40 physical therapy
sessions through October 10, 2018. Id. at 20-152.
• On July 3, 2018, orthopedic surgeon Jonathan Wyatt, M.D., met with Petitioner
to discuss her left shoulder pain (recorded as being present for “several
months,”) and plans for further surgical intervention. Ex. 5 at 15-17.
• On August 3, 2018, Dr. Wyatt performed a left shoulder arthroscopy with
capsular release, biceps tenotomy with limited debridement, subacromial
decompression, and further manipulation of the left shoulder under anesthesia.
6
Ex. 5 at 39-41; see also id. at 8-15 and Ex. 12 at 16-18 (follow up appointments
with Dr. Wyatt).
• At their last known follow-up appointment on June 25, 2019, Dr. Wyatt recorded
that Petitioner’s left shoulder had improved following surgery and physical
therapy, but she had continued pain and limitations in range of motion. She
would continue with NSAIDs, topical treatments, and stretching exercises, and
would follow up with Dr. Wyatt as needed. Ex. 12 at 15-16.
IV. Findings of Fact
I acknowledge that the standard applied to resolving onset for an alleged SIRVA
is liberal, and will often permit a determination in a petitioner’s favor, especially in the
absence of fairly contemporaneous and direct statements within the petitioner’s medical
records to the contrary. However, not every case can be so preponderantly established.
Ultimately, the resolution of such fact issues involves weighing different items of evidence
against the overall record.
Here, Petitioner’s post-vaccination onset claims (which do eventually tend to report
immediate pain) are offset against a record created very near-in-time to vaccination – and
this record does not support Petitioner’s claim. Specifically, the second post-vaccination
record - from the November 9, 2017, telephone encounter with Nurse Ashley - specifically
refutes the existence of pain for the first two days after vaccination, placing onset instead
at “after the two days.” Ex. 2 at 20. The record from the day immediately before (the first
record reporting pain) vaguely references pain “since” the receipt of the vaccine – and
although this is not inconsistent with an allegation of immediate pain, it is also consistent
with the second record, which identifies a particular, later onset. Id.
Thereafter, on November 15, 2017, Petitioner reported a six-week history of
shoulder pain, which dates back precisely to October 4, 2017. Ex. 2 at 18. However, that
record does not mention the vaccination, and could represent a more approximate
timeframe. Compare, e.g., Ex. 2 at 16 (January 24, 2018, history of shoulder pain “for
about 4 months now,” which would relate back to before vaccination). Other records
contain a history of shoulder pain either “since” or beginning within the first two days after
vaccination. However, these were generally created later in time, and contain other
inconsistencies. See, e.g., Ex. 2 at 20 (dating vaccination in “late” October); Ex. 3 at 153
(providing that the vaccination occurred on October 11th); Ex. 2 at 155 (providing the same
incorrect date, and that the vaccination occurred “at a local pharmacy” rather than at
Petitioner’s workplace).
7
Overall, the most contemporaneous and specific record was that created by Nurse
Ashley, which provides that onset occurred beyond 48 hours after vaccination. Petitioner
has provided me no reason not to conclude that this medical record is correct, and she
has not provided “consistent, clear, cogent, and compelling” testimony – or other evidence
– in rebuttal. Camery v. Sec’y of Health & Human Servs., 42 Fed. Cl. 381, 391 (1998)
(citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL 408611, at *5
(Fed. Cl. Spec. Mstr. June 30, 1998). And while other records are consistent with post-
vaccination pain, they do not merit more weight than a specific and far closer-in-time
record. Accordingly, there is not preponderance evidence of onset within 48 hours. 42
C.F.R. § 100.3(a)(I)(C).
Nevertheless, the record does support onset having occurred shortly after
vaccination – e.g., within the first 72 hours – and seemingly, all other criteria for a Table
SIRVA claim. Therefore, Petitioner very likely has a viable non-Table claim. To that end,
I urge the parties to make one final brief attempt at settlement – as I would anticipate that
even after transfer, Petitioner’s claim could prove meritorious despite her inability to meet
one Table element.
Conclusion
Petitioner has not preponderantly established that the onset of her shoulder pain
occurred within 48 hours of vaccination. Accordingly, Petitioner’s Table SIRVA claim is
dismissed. Petitioner shall file a joint status report addressing her conveyance of a
revised settlement demand for her off-Table claim, and the parties’ efforts towards
informal resolution, by no later than Friday, January 14, 2022. If the parties do not
report progress in their efforts, the matter will likely be transferred out of the SPU.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8