In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1973V
UNPUBLISHED
PERCY GLANVILLE, Chief Special Master Corcoran
Petitioner, Filed: February 2, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Site of Vaccination
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT 1
On December 30, 2019, Percy Glanville 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 right shoulder injury related to
vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine she received
on December 6, 2017. Petition at 1. 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1 Because this unpublished Fact Ruling contains a reasoned explanation for the action in this case, I am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.
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 has preponderantly
established that the vaccine she received on December 6, 2017, was administered into
her right arm.
I. Relevant Procedural History
On June 22, 2021, about 17 months after the case was initiated, Respondent filed
a Rule 4(c) Report arguing that Petitioner was not entitled to compensation because “the
contemporaneous vaccine administration record clearly reflects that Petitioner’s
December 6, 2017 flu vaccine was administered into Petitioner’s left deltoid, not her right
shoulder as alleged.” Rule 4(c) Report (ECF No. 35) at 10.
On August 31, 2021, a Status Conference was held, after which the parties were
ordered to file any additional evidence on the issue of site of vaccination, as well as briefs
addressing their arguments. ECF No. 37. Petitioner filed her brief on September 30, 2021.
ECF No. 40. Respondent filed his response on November 1, 2021. ECF No. 41. The issue
of site of vaccination is now ripe for a fact ruling.
II. Issue
At issue is whether Petitioner received the vaccination alleged as causal in her
right or left arm, as it relates to whether Petitioner can make the required showing that
pain and reduced range of motion were limited to the shoulder in which the intramuscular
vaccine was administered as required by the Vaccine Injury Table and Qualifications and
Aids to Interpretation (“QAI”) for a Table SIRVA. 42 C.F.R. § 100.3(c)(10)(iii).
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 & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
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Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” Murphy v. Sec’y of
Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,
1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd
per curiam, 968 F.2d 1226 (Fed.Cir.1992)). 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 & Hum. Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has 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 & Hum. 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 v. Sec’y
of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).
The credibility of the individual offering such fact testimony must also be determined.
Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley
v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir. 1993).
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 Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Hum. 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).
IV. Finding of Fact
Based on a review of the entire record, including the medical records and affidavits,
the arguments in Respondent’s Rule 4(c) Report, and the arguments in the parties’
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respective briefs, I find that Petitioner’s December 6, 2017 flu vaccine was likely
administered in her right arm, as she contends. The following points are particularly
relevant to that finding:
• Petitioner’s pre-vaccination medical records reveal no injuries,
inflammation, or dysfunction in Petitioner’s right shoulder (although notably,
at the time of her vaccination, Petitioner was receiving treatment for left
shoulder pain). Ex. 3 at 9. On the date of her vaccination, December 6,
2017, Petitioner visited her orthopedist who ordered an MRI of her left
shoulder to guide further treatment. Id.
• Petitioner received an influenza vaccine on December 6, 2017, at a Rite Aid
Pharmacy near her home in New York. Ex. 20 at 3.
• The computer-generated vaccine administration record indicates that the
vaccine was administered to Petitioner’s left upper arm. Ex. 1 at 5.
• Rite Aid’s Screening Questionnaire and Consent Form, which was filled out
by Petitioner on the day of her vaccine, was also filled out and signed by
the pharmacist that administered the vaccine. Ex. 20 at 2-3. The pharmacist
circled both “LA” and “RA,” indicating both left and right arms, but also
crossed out “LA,” leaving “RA” circled. Id. at 3.
• Petitioner filed an affidavit on January 23, 2020. Ex. 16. She recalled that
the pharmacist that administered her vaccine asked whether she was right-
handed or left-handed, and recommended that she receive the vaccine in
her non-dominant left arm. Id. at ¶3. She explained that immediately prior
to the injection, she recalled that she had an MRI scheduled for her left
shoulder and asked to switch the injection to her right arm. Id. Then, the
pharmacist administered the shot to her right arm. Id.
• Petitioner saw her primary care physician (“PCP”), Dr. Kristen Frank Dixon,
the day after her vaccination, on December 7, 2017, complaining of pain in
her right deltoid that began the day before after her flu vaccination. Ex. 5 at
55. The record notes “soreness after flu shot yesterday. Prior to that had no
pain in the right shoulder.” Id.
• On December 15, 2017, Petitioner called her orthopedist, Dr. Eugene
Byrne, who was treating her for her left shoulder pain. Ex. 3 at 28. Petitioner
reported that she “had a flu shot in right arm on 12/6 and can’t move her
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arm since and can’t lay down.” Petitioner was advised to see her PCP if her
pain continued. Id.
• On December 19, 2017, Petitioner returned to Dr. Frank Dixon for a follow
up on her right shoulder pain. Ex. 5 at 53. At that visit, Dr. Frank Dixon noted
that she had seen, at the prior December 7, 2017 visit, a small scab from
the injection site on Petitioner’s right shoulder, “which was just over the
glenohumeral joint.” Id. Dr. Frank Dixon further noted that “the timeline of
her symptoms correlates with influenza vaccine” and ordered xrays and an
MRI of Petitioner’s right shoulder. Id.
• On January 2, 2018, Petitioner saw orthopedic physician’s assistant,
Andrew Friebel, for “right shoulder pain that has occurred since
12/06/2017.” Ex. 3 at 8. PA Friebel recorded that Petitioner “went to get a
flu vaccine” on that date. Id. Petitioner was diagnosed with impingement
syndrome of the right shoulder and a cortisone injection was administered.
Id.
• On January 29, 2018, Petitioner presented to Dr. Byrne for continued
treatment for her right shoulder pain. Ex. 3 at 7. Dr. Byrne noted that
Petitioner “got a flare up [sic] shot at a local pharmacy and since that point
she has had a significant pain in that right shoulder which is causing her
significant difficulty.” Id. Dr. Byrne’s impression was “right shoulder pain
and beginnings of adhesive capsulitis,” and administered an injection. Id.
• Petitioner saw Dr. Byrne on April 18, 2018, to review her right shoulder MRI
results. Ex. 3 at 3. Dr. Byrne noted that “her right shoulder became painful
after a flu shot” and diagnosed a “right shoulder partial thickness rotator cuff
tear with pain that occurred after flu shot.” Id.
• On April 19, 2018, Petitioner had an initial physical therapy evaluation for
her bilateral shoulder pain. Ex. 5 at 42. Petitioner reported that “the right
shoulder pain started when she got her flu shot in December.” Id.
• Petitioner continued to attribute her right shoulder pain to her flu shot in
December 2017 throughout her remaining treatment, including her post-
surgical physical therapy. Ex. 9 at 127. At her initial evaluation on
September 25, 2019, Petitioner reported that her “original injury started in
December of 2017 when she had an injection for the flu in her right
shoulder.” Id.
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The entirety of the record preponderantly supports the conclusion that Petitioner
more likely than not received the December 6, 2017 flu vaccine in her right arm. Only one
record - the computer-generated print-out from Rite Aid (Ex. 1 at 5) - definitively states
that Petitioner received the flu vaccination in her left arm. The remaining records are
consistent in identifying the vaccinated arm as the right. And one record rebuts the
computer-generated record: the handwritten vaccination consent form, where the
pharmacist who administered the vaccine crossed out the circled “LA” (left-arm) and left
the circled “RA” (right-arm”) untouched. Ex. 20 at 3.
In addition, Petitioner provided affidavit testimony explaining that, at the last
minute, she requested that the vaccination be administered to her right arm because she
remembered that she had an MRI of her left shoulder scheduled in the near future. Ex.
16 at ¶3. Petitioner’s affidavit testimony provides a credible explanation for why the
pharmacist crossed out the circled “LA” and left the circled “RA” intact, and thus
illuminates how that record should be construed. The Federal Circuit has held that it is
appropriate to credit the lay testimony of a petitioner when said testimony does not conflict
with the medical records. See Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378,
1384 (Fed. Cir. 2021) (affirming special master’s finding of severity based on petitioner’s
testimony in the absence of contemporaneous medical records).
Respondent argues that “the contemporaneous vaccine administration records
document that Petitioner received the vaccine in her left shoulder and that later records
alleging that the flu shot was administered to the right shoulder are based on “Petitioner’s
statements alone.” ECF No. 41 at 5. However, in addition to Plaintiff’s affidavit testimony
and the handwritten form already discussed, her PCP, Dr. Kristen Frank Dixon, recalled
and recorded in the medical record of Petitioner’s December 19, 2017 visit that she had
seen a scab on Petitioner’s right shoulder “just over the glenohumeral joint” at Petitioner’s
previous visit on December 7, 2017, the day after her vaccination. Ex. 5 at 53. Dr. Frank
Dixon’s record is a contemporaneous record documenting evidence that the injection was
given in Petitioner’s right shoulder and should be given significant weight.
Finally, Petitioner’s pre-vaccination medical records show she had no history of
pain or dysfunction in her right shoulder. She suffered from right shoulder pain
immediately after vaccination and sought treatment the very next day, attributing her pain
to a flu shot administered to her right shoulder. Ex 5 at 55. There is no indication in the
records of any other possible cause of Petitioner’s right shoulder pain.
Overall, Petitioner’s own assertions are sufficiently corroborated by the medical
record to accept her contention of vaccine situs. At worst, the conflicting medical records
make this a “close-call,” but in such cases Program case law counsels deciding the matter
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in a petitioner’s favor. Roberts v. Sec’y of Health & Human Servs., No. 09-427V, 2013
WL 5314698, at *10 (Fed. Cl. Aug. 29, 2013). Accordingly, I find there is preponderant
evidence to establish that the flu vaccination alleged as causal in this case was
administered to Petitioner in the right deltoid on December 6, 2017.
V. Scheduling Order
Respondent shall file, by Thursday, March 3, 2022, a status report indicating
how he intends to proceed in light of this fact ruling.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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