         In the United States Court of Federal Claims
                                OFFICE OF SPECIAL MASTERS
                                           No. 17-1046V
                                        Filed: April 1, 2020
                             Refiled in Redacted Form: July 1, 2020

                                            UNPUBLISHED

                                                                  Special Master Horner
    ROBERT WILLIAMS,

                        Petitioner,                               Finding of Fact; Shoulder Injury
    v.                                                            Related to Vaccine
                                                                  Administration; SIRVA;
    SECRETARY OF HEALTH AND                                       Influenza (flu) Vaccine; Onset
    HUMAN SERVICES,

                       Respondent.


Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.

                                         FINDING OF FACT1

        On August 3, 2017, petitioner filed a petition under the National Childhood
Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that as a result of a
pneumococcal (“PCV13”) vaccination that he received on February 16, 2016, he
suffered a left Shoulder Injury Related to Vaccine Administration (“SIRVA”).
Respondent recommended that compensation be denied, arguing, inter alia, that there
is not preponderant evidence that petitioner’s shoulder pain began within a timeframe
that would support a finding of vaccine causation, namely 48 hours. For the reasons
described below, I now issue the below finding of fact. I conclude that petitioner
experienced onset of shoulder pain within 48 hours of receiving his vaccination.



1 When this decision was originally filed the undersigned advised his intent 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). In accordance
with Vaccine Rule 18(b), petitioner filed a motion to redact certain information. This decision is being
reissued without specific named reference to petitioner’s primary care physician, primary care office
nurse, primary care office/clinic, or the chronic condition referenced herein. Except for those changes
and this footnote, no other substantive changes have been made. This decision will be posted on the
court’s website with no further opportunity to move for redaction.
    I.      Procedural History

        This case was first assigned to Special Master Millman. (ECF No. 4.) On April
26, 2018, respondent filed his Rule 4 report, recommending that entitlement be denied
in this case. (ECF No. 14.) Respondent raised the issue that “the most
contemporaneous documentation does not establish that the onset of petitioner’s pain
occurred within forty-eight hours of the vaccination.” (Id. at 6.) Eventually, Special
Master Millman ordered petitioner to file an expert report to support his case.

        Subsequently, this case was reassigned to my docket on June 5, 2019. (ECF
No. 26.) On July 15, 2019, petitioner filed a motion to amend schedule, requesting
petitioner’s deadline to file an expert report be temporarily suspended in light of ongoing
discussions regarding the scheduling of depositions. (ECF No. 27.) A status
conference was held on August 6, 2019 to discuss petitioner’s motion, which was
ultimately granted. Petitioner’s deadline was suspended and petitioner was granted
authority to serve subpoenas on his primary care physician (“PCP”) and a primary care
office nurse (“PCN”) to appear for depositions. (ECF Nos. 29-30.) On November 29,
2019, petitioner filed additional records and transcripts of the depositions of the PCP
and the PCN. (ECF No. 32.)

        On January 14, 2020, petitioner filed a motion for a finding of fact requesting a
finding that onset of petitioner’s shoulder injury was within 48 hours of receiving his
February 16, 2016 pneumococcal vaccination.2 (ECF No. 35.) Petitioner argues that
the medical records show that petitioner “consistently reported to his medical providers
that his pain began with the injection he received on February 16, 2016.” (Id. at 7.)
Additionally, petitioner argues that the deposition testimony from his PCP shows that
petitioner is reliable, a good historian, and a truthful person, and further that his PCP
recalled petitioner telling him that the shoulder pain was immediate after the vaccination
was administered. (Id. at 8.) Moreover, his PCP did not dispute that petitioner reported
shoulder pain during an intervening visit although his records did not indicate such
report of shoulder pain. (Id.) Therefore, petitioner argues that the medical records
make clear that petitioner’s pain began within 48 hours of receiving his vaccination. (Id.
at 9.)

       On February 13, 2020, respondent filed a response to petitioner’s motion for a
finding of fact. (ECF No. 36.) Respondent “maintains that the record as a whole does
not support a finding that a preponderance of the evidence supports a finding that the
onset of petitioner’s left-sided shoulder pain began within forty-eight hours of his PCV13
vaccination.” (Id. at 1.) Respondent points to several instances where petitioner failed
to report shoulder pain, including the phone call to the PCP the day after vaccination
and during the visit with the PCP three months after vaccination. (Id. at 10.)
Respondent also stresses that the first time petitioner is recorded to have been suffering
shoulder pain was on June 1, 2016, when petitioner presented to urgent care, more
than three months after vaccination. (Id. at 10-11.) Therefore, respondent argues that

2Petitioner also urged me to further hold that petitioner is entitled to compensation (ECF No. 35, p. 10);
however, this ruling is limited to determining the onset of petitioner’s shoulder symptoms.

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“while the medical record and factual testimony support a finding that petitioner
experienced shoulder pain at some point following the PCV13 vaccination, neither the
medical records nor the factual testimony establish by a preponderance of the evidence
that petitioner’s left-sided shoulder pain began within forty-eight hours of the
administration of the PCV13 vaccination.” (Id. at 11-12.)

          Petitioner filed no reply.

    II.      Factual History

             a. Medical Records

       Petitioner received a pneumococcal vaccination in his left deltoid on February 16,
2016, during a routine follow-up visit with his PCP at the PCP’s office/clinic. (Ex. 6, p.
1154.) On the same day, petitioner received a Hep B vaccination in his right deltoid.
(Id.) According to the PCN, petitioner tolerated the vaccine well and there was no pain
or reaction at the injection site. (Ex. 3, p. 262.) The following day on February 17,
2016, petitioner called his doctor’s office inquiring about his medication and the PCP
indicated that the office had issues with the pharmacy. (Id. at 258.)

        On April 5, 2016, petitioner presented for lab work. (Ex. 9, p. 508.) On May 10,
2016, he had a routine follow-up visit with his PCP to discuss his lab work and possible
adjustments to his medications for a chronic condition unrelated to his alleged injury.
(Id. at 524.) Petitioner did not have any specific complaints. (Ex. 2, p. 116; Ex. 3, pp.
196-198.) The PCP noted that petitioner denied having any problems and was “feeling
well except wearing sunglasses due to light sensitivity.” (Ex. 2, p. 116; Ex. 3, p. 196.)
Petitioner’s chronic condition was stable and petitioner was told to continue his
medication. (Ex. 3, p. 197.) Petitioner did not need any vaccines at that visit and was
scheduled to return in four months. (Id.)

        On June 1, 2016, petitioner presented to urgent care for left shoulder pain (“c.o
left shoulder pain x 3 months after receiving hep b vaccine”).3 (Ex. 2, p. 152; Ex. 9, p.
586.) He reported “[n]o trauma, redness, fever, chills, n/v, HA, dizziness.” (Id.) Reason
for visit was listed as “[p]ain to left arm [status post] vaccine; VACINATION [sic.] PAIN.
(Ex. 9, p. 561.) Petitioner had an x-ray of his shoulder, which had no significant
findings, and was discharged the same day. (Ex. 2, p. 151; Ex. 9, p. 588.) His
discharge diagnosis was “shoulder pain,” which was characterized as “likely tendinitis.”
(Ex. 9, p. 588.)

      Petitioner returned to his PCP on July 5, 2016 for “Lt shoulder pain after vaccine
shot on 02/2016.” (Ex. 9, p. 625.) He complained of “stabbing pain from left deltoid to

3 Notably, this report attributes petitioner’s pain to the wrong vaccination. Petitioner received his Hep B
vaccine in his right shoulder and his pneumococcal vaccination in his left shoulder. The location of
petitioner’s injections was initially an issue litigated by the parties; however, on October 12, 2018,
respondent confirmed that he agrees petitioner received his pneumococcal vaccine in his left deltoid.
(ECF No. 21; ECF No. 36, p. 1.)

                                                      3
elbow.” (Ex. 2, p. 156; Ex. 3, p. 117.) Petitioner reported that he had pain “since
injection in L deltoid in Feb” and denied any recent or remote injury. (Id.) Petitioner
reported frequent stabbing pain and difficulty using his left arm. (Id.) Petitioner was
assessed with likely frozen shoulder syndrome versus rotator cuff injury versus deltoid
tendonitis. (Ex. 3, p. 118.) The PCP doubted petitioner had a vaccine reaction but
considered that vaccination could have led to local inflammation leading to capsulitis.
(Id.) An MRI was ordered, which was later completed on September 16, 2016.4 (Ex. 3,
p. 118; Ex. 9, pp. 719, 721-22.)

        In a follow up consultation note seeking a referral to orthopedics, the PCP
relayed that petitioner had a “5 month hx of L shoulder pain and decreased mobility
following deltoid IM injection in 2/2016 (13 valent pneumococcal conjugate vaccine).”
(Ex. 6, p. 28.) He was advised to resubmit the referral request after an MRI was
complete. (In a further follow up note two months later, he stressed regarding the
vaccination that “[p]atient certainly believes that this was cause and the problem did
start very soon after immunization.” (Id.)) The PCP also referred petitioner for physical
therapy on July 6, 2016, reporting again that petitioner had a five-month history of left
shoulder pain and decreased mobility following his pneumococcal vaccination. (Ex. 3,
pp. 240, 256.)

        On September 20, 2016, the PCP again referred petitioner for an orthopedics
consultation, stating that petitioner “had IM injection of PCV 13 vaccine in L deltoid in
Feb 2016 and subsequently has had pain [decreased range of motion] of L shoulder
that is debilitating and has not responded to NSAIDs and ROM exercises.” (Ex. 3, p.
257.) He added that petitioner was concerned that the PCV13 vaccination caused his
condition. (Id.)

        Subsequently, on June 29, 2017, petitioner presented for physical therapy. (Ex.
5, p. 4.) At that time, he indicated that his shoulder pain and reduced range of motion
began “the next day” following his February 2016 vaccination. (Id.)

            b. Petitioner’s Affidavit

       Petitioner affirmed that he went to his PCP’s office/clinic for a four-month
checkup on February 16, 2016, where he received two injections, one in each shoulder.
(Ex. 4.) Petitioner stated that that he was given a pneumococcal vaccine in his left
shoulder and a Hepatitis B vaccine in his right. (Id. at 1.) Petitioner indicated that the
next day following his vaccinations, petitioner “felt quite a bit of discomfort in [his] left
shoulder around the injection site,” and he “thought it would just go away, but it didn’t. It
only intensified.” (Id.) Petitioner stated that he called the clinic a few days later
because he couldn’t move his left arm without experiencing extreme pain and was told
to come in to the clinic. (Id.) Petitioner stated that he went to the clinic, where he was


4Notably, the MRI study report indicates petitioner’s pain had been present “x 5 months.” (Ex. 9, p. 721.)
This is consistent with the PCP’s notation at the time he ordered the MRI; however, the MRI report was
not generated until two months later.

                                                    4
examined and had an x-ray. (Id.) Petitioner recalled being told he had a frozen
shoulder. (Id.)

          c. Depositions

        On September 20, 2019, depositions of petitioner’s PCP and PCN were taken.
(Ex. 7 (“PCP Tr.”); Ex. 8 (“PCN Tr.”).) The PCP testified that petitioner has been his
patient for over five years and that petitioner has been truthful and is a good historian
when giving his medical facts. (PCP Tr. 8-10.) He could not specifically recall when
petitioner first reported his shoulder injury but only that it was sometime between
petitioner’s February 2016 appointment and his July 2016 visit. (PCP Tr. 11.) He
testified that there was a visit in between February and July, but he could not recall
whether petitioner discussed his shoulder pain at the May 10, 2016 visit. (Id. at 11-12.)
The PCP testified that petitioner was convinced his pain was related to his vaccination
because “nothing else had happened to his left shoulder that would explain the pain.”
(Id. at 14.) He testified that he explained to petitioner that vaccine reactions were
uncommon events, but do occur, and prescribed petitioner ibuprofen, warm or ice
compressions, and range of motion exercises to manage petitioner’s frozen shoulder
syndrome. (Id.) The PCP testified that it was his impression that petitioner started
experiencing pain immediately after the vaccination. (Id. at 16, 25-27.) He did recall
that petitioner told him that the pain occurred at the time of the vaccination and that it
was more severe than pain that petitioner had experienced with vaccinations previously.
(Id. at 16, 25.)

         The PCP testified that he did not have a specific recollection of petitioner
mentioning his shoulder pain during his May 2016 visit and added “I don’t believe that
it’s incorrect.” (Id. at 16-17.) Additionally, the PCP explained that it is possible that
petitioner could have complained about shoulder pain and that he would not have noted
it in the record if he thought the pain was part of the normal response to vaccination.
(Id. at 21-22.) He explained that if the pain was something that was out of the ordinary
and needed immediate attention, then he would have noted it. (Id.) He indicated that
there are patients who have lingering pain at the vaccination site three months
subsequent to immunization. (Id. at 22.) The PCP also explained that nursing
personnel usually input the chief complaint and that he has the ability to modify if need
be. (Id.)

        The PCN testified that he could not recall whether he saw petitioner at the clinic
within seven days after petitioner received his vaccination. (PCN Tr. 6-7.) He testified,
however, that he did not specifically ask petitioner to get an x-ray. (Id. at 7.) The PCN
did recall administering the vaccines at issue, but did not remember any immediate
reports of unusual pain from petitioner after administrating the vaccine. (Id. at 8.) He
recalled making an addendum to his notes of the day that he administered petitioner’s
vaccination. (Id. at 8-9.) The PCN testified that he was prompted to go back to his
notes when petitioner asked him to testify, but that adding the addendum was self-
initiated. (Id. at 9.) Additionally, he added that his notation of no pain or reaction at the
injection site is the “standard language” that he uses and that he could not recall his


                                              5
“exact action” in recording that notation. (Id.) Although the PCN could not recall the
timeframe, he did recall that petitioner made a phone call regarding his reaction to the
vaccination. (Id. at 10-11.) However, he believed he made a record of that phone call.
(Id. at 12.)

   III.   Legal Standard Applied

        The process for making determinations in Vaccine Program cases regarding
factual issues begins with consideration of the medical records. 42 U.S.C. § 300aa-
11(c)(2). The special master is required to consider “all [ ] relevant medical and
scientific evidence contained in the record,” including “any diagnosis, conclusion,
medical judgment, or autopsy or coroner's report which is contained in the record
regarding the nature, causation, and aggravation of the petitioner's illness, disability,
injury, condition, or death,” as well as “the results of any diagnostic or evaluative test
which are contained in the record and the summaries and conclusions.” 42 U.S.C. §
300aa-13(b)(1).

       The special master is then required to weigh the evidence presented, including
contemporaneous medical records and testimony. See, e.g. Burns v. Sec'y of Health &
Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993). Specifically, “[t]he special master or
court may find the first symptom or manifestation of onset or significant aggravation of
an injury, disability, illness, condition, or death described in a petition 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.” 42 U.S.C. § 300aa-13(b)(2).

       Medical records that are created contemporaneously with the events they
describe are presumed to be accurate and trustworthy because they “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.” Cucuras v. Sec'y of Health & Human Servs., 993 F.2d 1525, 1528
(Fed. Cir. 1993); see also Doe v. Sec'y of Health & Human Servs., 95 Fed. Cl. 598, 608
(2010) (“[g]iven the inconsistencies between petitioner's testimony and his
contemporaneous medical records, the special master's decision to rely on petitioner's
medical records was rational and consistent with applicable law”); Rickett v. Sec'y of
Health & Human Servs., 468 Fed. Appx. 952 (Fed. Cir. 2011) (non-precedential
opinion). Accordingly, if the medical records are clear, consistent, and complete, then
they should be afforded substantial weight. Lowrie v. Sec'y of Health & Human Servs.,
No. 03-1585V, 2005 WL 6117475, at *19-20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005).

   IV.    Finding of Fact

        In light of the above-discussed legal standard and based on my review of the
entire record, I find preponderant evidence that petitioner’s alleged vaccine-caused
shoulder pain began within 48 hours of his February 16, 2016 pneumococcal
vaccination. The contemporaneous treatment records repeatedly and consistently
reflect notations of an onset “after receiving” his vaccination, “following deltoid IM

                                               6
injection in 2/2016,” “after vaccine shot,” “since injection,” and “very soon after
immunization,” all of which together tend to suggest an immediate onset. (E.g., Ex. 2, p.
152; Ex. 3, pp. 14, 113, 117; Ex. 6, p. 28.) This is further confirmed by the testimony of
petitioner’s PCP, who testified that he considered petitioner a good historian generally
and that he did recall petitioner expressing that his shoulder pain began “immediately”
or “right after” his vaccination as well as the fact that petitioner was convinced that his
pain was related to his vaccination. (PCP Tr. 14, 16, 26-27.)

       Respondent disagrees that the above-referenced notations regarding onset are
necessarily indicative of pain occurring within 48 hours of vaccination. (ECF No. 36, p.
12, n. 4.) Rather, respondent contends that these notations of “since,” “after,” etc,
indicate only onset occurring at some point following vaccination, but not necessarily
within 48 hours. However, in light of the specific facts of this case, and when viewing
the record as a whole, I disagree.

        First, given the context of the notations – i.e. petitioner seeking a diagnosis for
his shoulder pain - I give some weight to the fact of the records indicating that petitioner
consistently and affirmatively associated onset of his pain directly to his vaccination
regardless of the fact that the medical providers used terms that were arguably vague
as to timing. Second, these notations also include further context in the form of
references to the duration of petitioner’s symptoms. For example, when petitioner first
reported his shoulder pain as occurring “after receiving” his vaccination the provider
also recorded that the pain had been present “x 3 months.” (Ex. 2, p. 152.) Thus,
although this notation again is not exact vis-à-vis the date of vaccination, it confirms that
the notation of pain “after” injection cannot be interpreted to refer to any point between
vaccination and the date of the medical visit.5 Petitioner’s PCP later, and similarly,
recorded in July of 2016 that petitioner had experienced symptoms “since” his injection
and then specifically reported in his referrals to both physical therapy and orthopedics
that petitioner had a five-month history of pain related specifically to his February 2016
vaccination. (Ex. 3, pp. 117, 240, 256.) Third and relatedly, the PCP, who was
responsible for at least some of the notations in question, confirmed in his deposition
that he understood petitioner to be reporting an immediate onset. (PCP Tr. 14, 16, 26-
27; Ex. 3, p. 117.) And finally, petitioner eventually reported more explicitly to his
physical therapist and in his affidavit that his pain began “the next day.” (Ex. 4, p. 1; Ex.
5, p. 4.) For these reasons, and based on the record as a whole, I find the notations
characterizing onset as “since,” “after receiving,” “following,” and “very soon after”

5
   Given the dates of vaccination (February 16) and the appointment at which this history was given (June
1), an exacting calculation of a three-month history of pain would not extend as far back as petitioner’s
actual date of vaccination. However, it has been observed in prior SIRVA cases that histories of present
illness reported by patients may include imprecise or generalized recollections of onset that should not be
overanalyzed where they are consistent with the appropriate timeframe. See, e.g., Cooper v. Sec’y of
Health & Human Servs., No. 16-1387V, 2018 WL 1835179, n.13 (Fed. Cl. Spec. Mstr. Jan. 18, 2018).
Here, although the cited duration is clearly off by about two weeks, petitioner’s reported use of a whole-
month interval appears likely to be a generalization and petitioner explicitly linked onset to a specific
vaccination known to have been given on the date at issue. Moreover, given the record as a whole, the
fact that petitioner did not more precisely report a three-and-a-half-month history of pain is not as
significant as it otherwise could have been.

                                                     7
injection are best understood as indicating onset was effectively immediate, or within 48
hours of, vaccination.

        As noted above, however, respondent raises several additional counterpoints.
First, respondent stresses that petitioner’s records reflect that he did not report the
presence of shoulder pain until June of 2016, more than three months after his
vaccination. (ECF No. 36, pp. 10-11.) And actually, the first time that petitioner
reported shoulder pain to his PCP specifically was during a July 5, 2016 visit, about five
months after vaccination. (Id.) Respondent argues that this delay should cast doubt on
his claim of immediate onset. (Id. at 11-12.) Respondent also indicates that the day
after receiving his vaccination, petitioner had a phone call with his PCP regarding
medication and failed to reference any shoulder pain. (Id. at 10.) Additionally,
respondent notes that during that five-month period, petitioner returned to the PCP for
routine care of a chronic condition and was not recorded to have reported any shoulder
pain. (Id. at 2, 10.) Respondent also points out that the PCN did not recall petitioner
suffering any immediate or unusual pain. (Id. at 6.) In that regard, the nursing record
reflecting the administration of petitioner’s vaccinations indicates that “[patient] tolerated
vaccine well” and that there was “[n]o pain or reaction at site.” (Ex. 6, p. 1157.)
Petitioner averred that he called the clinic “a few days later” to report his shoulder pain.
(Ex. 4, p. 1.) He indicated that he was told to come in, was examined, and was x-rayed.
(Id.) However, there are no records to support petitioner’s recollection.

        Although there was a delay in seeking treatment as well as an intervening
appointment and phone calls where the record is silent regarding any shoulder pain (Ex.
3, pp. 191-201), that intervening activity was for a specific and limited purpose (securing
and reviewing medications for his unrelated chronic condition) and I am not persuaded
in this case that the fact of this activity outweighs the remainder of the
contemporaneous records. In prior decisions it has been held that neither a delay in
seeking treatment in itself, nor a failure to report symptoms to a specialist or emergency
room provider prior to later seeking treatment, is necessarily dispositive of whether a
petitioner’s shoulder pain began within 48 hours of vaccination. See Forman-Franco v.
Sec’y of Health & Human Servs., No. 15-1479V, 2018 WL 1835203 (Fed. Cl. Spec.
Mstr. Feb. 21, 2018); Tenneson v. Sec’y of Health & Human Servs., No. 16-1664V,
2018 WL 3083140 (Fed Cl. Spec. Mstr. Mar. 30, 2018), mot. rev. denied 142 Fed. Cl.
329 (2019); Gurney v. Sec’y of Health & Human Servs., No. 17-481V, 2019 WL
2298790 (Fed. Cl. Mar. 19, 2019). Moreover, the PCP could not confirm that
petitioner’s shoulder pain was not raised at this appointment. (PCP Tr. 16-17.) He had
no specific recollection of the appointment but indicated that it is possible he could have
failed to record a report of shoulder pain. (Id. at 21-22.)

        Additionally, petitioner’s recollection that he made a report of shoulder pain via a
call to the clinic is supported by the testimony of the PCN. Although he could not recall
the timing, the PCN recalled that petitioner had called him to complain about his
shoulder pain. (PCN Tr. 10-11.) With regard to the administration of petitioner’s
vaccination, he testified that he could not recall whether petitioner reported any
immediate pain. (PCN Tr. 7-8.) He explained that the notations in the medical record


                                              8
denying any pain or reaction at the injection site is a standard notation; however, he
could not independently recall making the notation. (Tr. 9.) Notably, however, the PCN
denied ever recommending that petitioner have an x-ray performed (PCN Tr. 7) and
petitioner’s records reflect that an x-ray was performed on June 1, 2016, rather than in
the days after his vaccination. (Ex. 3, p. 171.) Thus, the timing and events surrounding
petitioner’s interaction with the PCN remain unclear. Nonetheless, upon review of the
complete record, the evidence preponderates in favor of a finding that petitioner
experienced onset of left shoulder pain within 48 hours of his vaccination.

   V.     Conclusion

        In light of all of the above, I find that there is preponderant evidence that
petitioner’s alleged left shoulder pain began within 48 hours of his February 16, 2016
pneumococcal vaccination.


IT IS SO ORDERED.

                                                s/Daniel T. Horner
                                                Daniel T. Horner
                                                Special Master




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