    In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 17-1964V
                                          UNPUBLISHED


    ALEXANDRA MORROW,                                           Chief Special Master Corcoran

                         Petitioner,                            Filed: June 2, 2020
    v.
                                                                Special Processing Unit (SPU);
    SECRETARY OF HEALTH AND                                     Findings of Fact; Onset; Influenza
    HUMAN SERVICES,                                             (Flu) Vaccine; Shoulder Injury
                                                                Related to Vaccine Administration
                         Respondent.                            (SIRVA)


Martin James Martinez, Martinez Law Office, Napa, CA, for Petitioner.

Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for Respondent.


                                           FINDINGS OF FACT 1

       On December 18, 2017, Alexandra Morrow 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 shoulder injury related to vaccine
administration (“SIRVA”) caused by an influenza (“flu”) vaccination administered on
January 24, 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   Because this unpublished fact ruling contains a reasoned explanation for the action in this case, I am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 the onset of Petitioner’s SIRVA began
within the temporal requirements of the Table claim, because Petitioner suffered pain the
same day as her vaccination.

   I.     Relevant Procedural History

       On September 3, 2019, Respondent filed a Rule 4(c) Report recommending that
compensation be denied in this case. Respondent’s Rule 4(c) Report (“Respondent’s
Report”) ECF No. 44. Respondent’s position was based in part on his conclusion that
there is not preponderant evidence that onset of Petitioner’s pain was within 48 hours of
vaccination. Id. at 4. Respondent also argued that there may be additional explanations
for Petitioner’s left shoulder pain, such as degenerative changes to her shoulder and
employment-related activities. Id. at 5.

       Petitioner filed a Motion for Ruling on the Record (“Mot.”) arguing that there is
preponderant evidence that she suffered a shoulder injury within 48 hours of the
vaccination. ECF No. 48. Petitioner also moved for a ruling on entitlement in her favor.
Mot. at 27. Respondent did not file a response.

   II.    Issue

      At issue is whether Petitioner’s first symptom or manifestation of onset after
vaccine administration (specifically pain) occurred within 48 hours as set forth in the
Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table
SIRVA. 42 C.F.R. § 100.3(c)(10)(ii) (required onset for pain listed in the QAI).

   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.
§ 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

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are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, at *19.

         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).

   IV.    Finding of Fact

      I make the findings after a complete review of the record to include all medical
records, affidavits, Respondent’s Report, and additional evidence filed. Specifically, I
base the findings on the following evidence:


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           •   On January 24, 2017, Ms. Morrow received the flu vaccine in her left
               shoulder. Ex. 19 at 17. 3

           •   On February 21, 2017, Petitioner reported pain in her left shoulder that
               began after receiving vaccinations on January 24, 2017. Ex. 19 at 6-7.
               During that visit, Petitioner indicated that her pain started “a few days after
               [the vaccinations on January 24, 2017] and has become progressively
               worse.” Ex. 19 at 7-8.

           •   Petitioner repeatedly attributed her pain to vaccinations received on
               January 24, 2017, and repeatedly reported the pain began “a few days after
               and has become progressively worse.” See Ex. 19 at 8 (record from March
               14, 2017 reporting left shoulder pain after receiving vaccines on January
               24, 2017); Ex. 19 at 10 (record from May 17, 2017 reporting left shoulder
               pain after receiving vaccines on January 24, 2017).

           •   Petitioner underwent an MRI of her left shoulder on May 30, 2017, due to
               “[l]eft shoulder pain since February, 2017, post flu shot[].” Ex. 15 at 1.

           •   On June 30, 2017, Petitioner reported that her shoulder pain began after
               receiving two vaccinations approximately five months earlier. Ex. 24 at 1.
               Petitioner also stated that she developed soreness in her shoulder the night
               she received the flu vaccine, and that she woke the following day with
               limited mobility. Ex. 24 at 1.

The above medical entries collectively establish that Petitioner’s shoulder pain most likely
began within hours of receiving the January 24, 2017 flu vaccine, and progressively
increased thereafter.

        I recognize that some of Ms. Morrow’s records are unclear, or indicate the onset
of her shoulder pain may have occurred later than 48 hours after the vaccine. Specifically,
as Respondent notes in his Rule 4 Report, at times Petitioner reported that her pain began
“a few days after” receiving the vaccines. Ex. 19 at 7-8. Further, some records indicate
that her pain began in February, more than one week after her flu vaccine. See Ex. 6 at
1-5 (record stating her left shoulder pain began February 1, 2017). However, while every
record may not be consistent, when the evidence is viewed in its entirety it preponderantly
establishes that Petitioner’s likely pain began within 24 hours of her vaccination.

        Accordingly, I find there is preponderant evidence to establish that the onset of
Petitioner’s pain occurred the same day as her January 24, 2017 vaccination – and thus
within the 48-hour timeframe for a Table SIRVA claim.

       At this time, I decline to rule on entitlement to allow the parties an opportunity to
discuss how they would like to proceed in this case, and to determine whether settlement
negotiations would be productive.

3
  Petitioner also received a Pneumococcal polyvalent vaccination Pneumovax®23 in her left shoulder at
that time.

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   V.    Scheduling Order

       Accordingly, the following is ORDERED: Respondent shall file, by no later than
Friday, July 03, 2020, a status report indicating how he intends to proceed in this
case. At a minimum, the status report shall indicate whether Respondent is willing to
engage in tentative discussions regarding settlement or proffer or is opposed to
negotiating at this time.
IT IS SO ORDERED.

                                s/Brian H. Corcoran
                                Brian H. Corcoran
                                Chief Special Master




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