In the United States Court of Federal Claims
                          OFFICE OF SPECIAL MASTERS


*********************
MAURICE GOODGAME,         *
                          *                         No. 17-339V
              Petitioner, *                         Special Master Christian J. Moran
                          *
    v.                    *
                          *                         Filed: July 30, 2019
SECRETARY OF HEALTH       *
AND HUMAN SERVICES,       *                         six-month severity requirement
                          *
                          *
             Respondent.  *
*********************

Milton Clay Ragsdale and Allison L. Riley, Ragsdale, LLC, Birmingham, AL, for
petitioner;
Adriana Teitel, United States Dep’t of Justice, Washington, DC, for respondent.

           UNPUBLISHED DECISION DENYING COMPENSATION1

      Congress has authorized special masters in the Vaccine Program to award
compensation to petitioners only when the petitioners establish that they suffered a
severe injury, commonly demonstrated by an injury lasting more than six months.
Here, although the petitioner, Maurice Goodgame, suffered an allergic reaction to a
vaccination given to her on April 21, 2015, the evidence shows that she recovered
from this reaction in less than six weeks. Thus, Ms. Goodgame cannot receive
compensation.

       1
         The E-Government Act, 44 U.S.C. § 3501 note (2012) (Federal Management and
Promotion of Electronic Government Services), requires that the Court post this decision on its
website (https://www.uscfc.uscourts.gov/aggregator/sources/7). This posting will make the
decision available to anyone with the internet. Pursuant to Vaccine Rule 18(b), the parties have
14 days to file a motion proposing redaction of medical information or other information
described in 42 U.S.C. § 300aa-12(d)(4). Any redactions ordered by the special master will
appear in the document posted on the website.
                                        Facts

      Years before the vaccination, Ms. Goodgame suffered a problem in her left
shoulder from which she appeared to recover. See exhibit 16 at 12 (ordering MRI
in 2009). In 2013, she injured her left ankle in a car accident. Exhibit 11 at 34. In
February 2014, she began to receive care from Dr. Shirin Banu. Exhibit 6 at 38-
39.

       In early 2015, Ms. Goodgame worked as a tax preparer. In the first two
weeks of April 2015, she worked 33 and 38 hours. Exhibit 27 at 28. She appears
not to have worked later in April, although it seems reasonable to conclude that the
season for preparing taxes ended on April 15, 2015.

       Ms. Goodgame saw Dr. Banu on April 21, 2015, for what appears to be a
relatively routine visit. Ms. Goodgame complained about her chronic left ankle
pain. Ms. Goodgame received the tetanus-diphtheria-acellular pertussis (“Tdap”)
vaccine in her left arm during this appointment. Exhibit 3 at 1. Dr. Banu expected
to see Ms. Goodgame in follow up five months later. Id. at 4.

       On April 24, 2015, Ms. Goodgame visited the emergency room at Cooper
Green Hospital. She complained of having pain in her left arm where she received
the vaccination. Nurse Practitioner Lynn White diagnosed her as suffering from
cellulitis and prescribed an antibiotic. Exhibit 4 at 1. After this visit to the
emergency room, no medical records indicate that Ms. Goodgame sought medical
attention for cellulitis.
       Ms. Goodgame was involved in another car accident on June 6, 2015.
Exhibit 10 at 8. Her most significant injury was a fractured left ankle. Exhibit 10
at 5-6 (report from June 17, 2015). She also suffered injuries to her neck and back
as well as pain in her wrist. In addition, she had a contusion in her left upper
extremity. Exhibit 10 at 8.

       In response to the injuries sustained in the car accident, Ms. Goodgame
sought care from an orthopedist, Donald Slappey. In a medical history form dated
June 23, 2015, Ms. Goodgame told Dr. Slappey that she had no problem with her
left arm and no problem with both shoulders before the accident on June 6.
Exhibit 7 at 43. Dr. Slappey noted that Ms. Goodgame had pain from her neck into
her left shoulder but not in her arms. Dr. Slappey detected a limited range of
motion in her left trapezius muscle. Probably based on Ms. Goodgame’s account
that she did not have these problems before the car accident, Dr. Slappey opined
that the injuries related to the car accident. Exhibit 7 at 18. Dr. Slappey referred
her to therapy. Exhibit 7 at 102; exhibit 13 at 3.
                                             2
       Ms. Goodgame began physical therapy on July 7, 2015. This therapy lasted
until October 26, 2015. Exhibit 19.
       During therapy, Ms. Goodgame returned to Dr. Slappey on September 8,
2015. Dr. Slappey determined Ms. Goodgame had a good range of motion in her
cervical spine but limited flexion in her lumbar spine. Dr. Slappey maintained the
order for therapy. Exhibit 7 at 8.

       On September 22, 2015, Ms. Goodgame had her previously scheduled
follow-up appointment with Dr. Banu. Dr. Banu’s history lists that she had an
allergic reaction to the Tdap vaccination and was treated in urgent care. Dr. Banu
also notes that Ms. Goodgame was involved in a motor vehicle accident in June
2015. Dr. Banu’s record does not mention any complaints about shoulder pain.
Exhibit 6 at 22-23.
      On November 3, 2015, Ms. Goodgame had her final appointment with Dr.
Slappey. She requested to be released from care and be allowed to maintain a
home exercise program. Exhibit 7 at 7. Later in November, Ms. Goodgame
applied for a job and indicated that she was available to work many days and many
hours on each day. Exhibit 27 at 29.

      Ms. Goodgame’s pursuit of employment was successful because by
February 2016 Ms. Goodgame was working. While at work in early February, Ms.
Goodgame injured her right thumb in a desk drawer. Exhibit 10 at 23. This injury
continued to affect her for several months.
       On May 10, 2016, Ms. Goodgame consulted an orthopedic surgeon, Joseph
Sherrell. While examining her, Dr. Sherrell noted “upper extremity motion is
full.” Exhibit 9 at 22.
                                 Procedural History

       Ms. Goodgame initiated this litigation by filing a petition on March 13,
2017. At this time, Ms. Goodgame was representing herself and she appeared on
her own behalf in the initial status conference held on April 19, 2017. At the initial
status conference, Ms. Goodgame stated that she was not currently treating with
any doctors and was not currently receiving any therapy.
      Ms. Goodgame’s counsel of record, Milton Clay Ragsdale, entered his
appearance on June 12, 2017. Since then, Mr. Ragsdale with the assistance of Ms.
Riley has ably represented Ms. Goodgame.


                                             3
      With the assistance of Mr. Ragsdale, Ms. Goodgame filed additional medical
records. This led to the filing of a statement of completion on September 12, 2017.
       The Secretary reviewed the material and recommended against
compensation. The Secretary maintained that the evidence did not establish that
Ms. Goodgame’s reaction to the vaccine lasted more than six months. Resp’t’s
Rep., filed Jan. 2, 2018, at 7.

       On Ms. Goodgame’s behalf, Mr. Ragsdale filed an amended petition on
February 16, 2018. The amended petition alleged essentially two causes of action
– one for an on-table injury and the other for an off-table injury. These causes of
action were discussed in a February 21, 2018 status conference. In this status
conference, the undersigned also advised Ms. Goodgame that a hearing to receive
oral testimony about the severity of her injury was possible.
      Following this status conference, Ms. Goodgame continued to submit
evidence, such as medical records, affidavits, material from social media,
employment records, and documents relating to her car accidents. This material
was discussed in a June 11, 2018 status conference. To address the Secretary’s
arguments regarding the six-month issue, Mr. Ragsdale stated that Ms. Goodgame
might seek to return to a doctor. Again, the undersigned raised the potential for a
hearing. Mr. Ragsdale proposed that the parties attempt to resolve the case on an
informal basis.

      The Secretary filed a status report about the prospects of settlement on
August 9, 2018. The Secretary took the position that the lack of evidence
supporting a finding that Ms. Goodgame’s vaccine-caused injury lasted more than
six months prevented a settlement.
       Because the parties did not resolve the case, the next step was to adjudicate
the six-month issue. See order issued Sept. 5, 2018. Ms. Goodgame stated that
although she was open to testifying at a hearing, she deferred to the special
master’s judgment as to whether a hearing was necessary. Pet’r’s Status Rep.,
filed Oct. 5, 2018. The parties submitted a joint statement of issues on December
7, 2018.

       In response to the joint statement of issues, the undersigned directed the
parties to submit briefs. Order, issued Mar. 1, 2019. Ms. Goodgame submitted her
brief regarding factual issues on March 29, 2019, and the Secretary responded on
May 15, 2019. With the Secretary’s submission, the issue is ready for
adjudication.

                                             4
                            Standards for Adjudication

      Petitioners are required to establish their cases by a preponderance of the
evidence. 42 U.S.C. § 300aa–13(1)(a). The preponderance of the evidence
standard requires a “trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] may find in favor of the party who has
the burden to persuade the judge of the fact’s existence.” Moberly v. Sec’y of
Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted).

      The process for finding facts in the Vaccine Program begins with analyzing
the medical records, which are required to be filed with the petition. 42 U.S.C.
§ 300aa–11(c)(2). Medical records that are created contemporaneously with the
events they describe are presumed to be accurate. Cucuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).

                                      Analysis
       The preponderant evidence in this case establishes that Ms. Goodgame had
stopped suffering from any consequences to the vaccine-caused cellulitis by June
5, 2015. Ms. Goodgame’s hand-written statement to Dr. Slappey on June 23,
2015, indicates that she was not having any problems with her left arm or her
shoulders before having the car accident on June 6, 2015, weighs heavily on this
point. The undersigned accepts Ms. Goodgame’s representation to Dr. Slappey
and takes her at her word. See Cucuras, 993 F.2d at 1528.
       Ms. Goodgame’s statement to Dr. Slappey is consistent with her activities in
later April, May, and early June 2015. In that period, after visiting the emergency
room on April 24, 2015, Ms. Goodgame did not seek medical attention for any left
arm or left shoulder problem. The lack of medical visits suggests that Ms.
Goodgame was not having any problem with her left arm or left shoulder. The
lack of medical visits in this context contrasts with other situations in which Ms.
Goodgame sought medical attention for relatively minor problems. See, e.g.,
exhibit 6 at 9 (record from September 13, 2016, seeking medical attention for a
rash that had lasted about one week).

       The lack of medical attention is particularly telling in Ms. Goodgame’s case
because during the summer of 2015, she was receiving medical attention for the
injuries associated with her June 6, 2015 car accident. If Ms. Goodgame’s left arm
and left shoulder were as impaired as she seems to recall in her affidavits, then she
would have raised the issue with Dr. Slappey or the physical therapists. Similarly,
when she told Dr. Banu about her treatment for an allergic reaction to the Tdap
                                             5
vaccine at an urgent care Center, Dr. Banu did not memorialize any discussion that
Ms. Goodgame was continuing to have shoulder pain. See exhibit 6 at 22-23.2
       Finally, a medical record from October 3, 2018, merits relatively little
weight. As Dr. Ponce recorded, Ms. Goodgame came to see him “at the
recommendation of her lawyer.” Exhibit 24 at 6. This recommendation is not
surprising as Mr. Ragsdale suggested in the June 11, 2018 status conference that he
might encourage Ms. Goodgame to seek medical attention. In this context, Ms.
Goodgame told Dr. Ponce that she “has had left shoulder pain since April 21, 2018
[sic], when she received an injection for a vaccine into her lateral deltoid. Since
then, she has had significant pain and discomfort.” Id. The overall context in
which Ms. Goodgame sought medical attention to assist her claim in litigation
diminishes the reliability of this record.
      While medical records that memorialize the events happening
contemporaneously with the time the medical record is created are presumed to be
accurate, there must be a contemporaneity between the medical record and the
events. Shapiro v. Secʼy of Health & Human Servs., 101 Fed. Cl. 532, 538-40
(2011) (ruling that a special master was arbitrary in crediting a medical record
created one year after vaccination), recons. denied after remand on other grounds,
105 Fed. Cl. 353 (2012), aff’d without op., 503 F. App’x 952 (Fed. Cir. 2013).
Here, Ms. Goodgame’s assertion about three years of significant pain and
discomfort is not enhanced simply because she told a doctor, who then
memorialized it in a medical record.

        For these reasons, the undersigned finds that Ms. Goodgame’s left shoulder
or left arm pain resolved before June 5, 2015.3 Because the Vaccine Act requires
that Ms. Goodgame suffer an injury for more than six months to receive
compensation, 42 U.S.C. § 300aa–11(c)(1)(D), she cannot prevail.4 See Starvridis
v. Sec'y of Health & Human Servs., No. 07–261V, 2009 WL 3837479, at *4 (Fed.

       2
         Ms. Goodgame averred that she actually did tell Dr. Banu about continuing shoulder
pain. Exhibit 14 (affidavit) at 3. However, this assertion is not persuasive because it is not
consistent with the otherwise comprehensive report from Dr. Banu.
       3
         The undersigned is not determining precisely how long Ms. Goodgame's reaction to the
April 21, 2015 vaccination lasted. The undersigned is simply finding that the reaction lasted
fewer than six months.
       4
          The Vaccine Act also allows a petitioner to receive compensation if either the vaccinee
died or the vaccinee underwent a surgical procedure. However, Ms. Goodgame did not die and
has not undergone a surgery for her reaction to the vaccine.

                                                    6
Cl. Spec. Mstr. Oct. 29, 2009); Song v. Sec'y of Health & Human Servs., No. 92–
279V, 1993 WL 534746 (Fed. Cl. Spec. Mstr. Dec. 15, 1993), mot. for rev. denied,
31 Fed. Cl. 61 (1994), aff'd, 41 F.3d 1520 (Fed. Cir. 1994) (table).

                                    Conclusion

      Ms. Goodgame has not met her burden of proof on one required element.
Thus, the Clerk’s Office is instructed to enter judgment in accord with this decision
unless Ms. Goodgame files a motion for review.
      IT IS SO ORDERED.

                                                    s/Christian J. Moran
                                                    Christian J. Moran
                                                    Special Master




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