    In the United States Court of Federal Claims
                                    OFFICE OF SPECIAL MASTERS
                                            No. 18-870V
                                           UNPUBLISHED


    TONYA DECOURSEY,                                              Chief Special Master Corcoran

                          Petitioner,                             Filed: July 9, 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)


Leah Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Catherine Stolar, U.S. Department of Justice, Washington, DC, for Respondent.


                                            FINDINGS OF FACT1

         On June 19, 2018, Tonya DeCoursey 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 injuries, including a shoulder injury
related to vaccine administration (SIRVA), resulting from adverse effects of an influenza
(“flu”) vaccine administered in her left deltoid on January 3, 2017. Petition at 1. The case
was assigned to the Special Processing Unit of the Office of Special Masters.

      For the reasons discussed below, I find Petitioner’s SIRVA onset likely did not
begin within the 48-hour timeframe established for the Table claim.

1 Because this unpublished fact ruling contains a reasoned explanation for the action in this case, I am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.

2National 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).
   I.     Relevant Procedural History

       Ms. DeCoursey filed her petition for compensation on June 19, 2018. ECF No. 1.
By July 1, 2018, Petitioner filed most of her relevant medical records and a Statement of
Completion. ECF Nos. 7-8. On September 28, 2018, however, Respondent’s counsel
observed additional medical records that had not been filed. ECF No. 12. By October 31,
2018, counsel for Petitioner reported that each of the items identified in Respondent’s
status report had been filed. ECF No. 16. Additionally, on October 15, 2018, Petitioner
forwarded a settlement demand to Respondent. ECF No. 14.

       On April 4, 2019, Respondent advised that he was willing to consider a reasonable
settlement demand in this case. ECF. No. 21. However, on May 6, 2018, Petitioner
explained that Respondent had not yet responded to her October 15, 2018 settlement
demand, but expected a response from Respondent to be forthcoming. ECF No. 23.
Respondent responded to Petitioner’s settlement demand on June 17, 2019. ECF No. 28.
In a July 16, 2019 joint status report, the parties indicated that they “see the case quite
differently,” and that Respondent accordingly intended to file his Rule 4(c) Report within
45 days. Id.

        On September 3, 2019, Respondent filed the Rule 4(c) Report maintaining that the
case was not appropriate for compensation under the terms of the Vaccine Act.
Respondent’s Report at 1 (ECF No. 29). Respondent argues that “the record does not
demonstrate that [P]etitioner’s symptoms began within 48 hours of vaccination,” because
her “first complaints of shoulder pain were non-specific with respect to onset, and do not
clearly show that she had symptoms within 48 hours of the vaccination,” but instead that
the record supported an onset of more than two days post-vaccination. Id. at 5.
Respondent further argues that Petitioner does not allege in the alternative that her
shoulder pain was caused-in-fact by the vaccination, and thus, has not shown a proximate
temporal relationship between the vaccination and her injury. Id. at 6. In Respondent’s
Report, Respondent noted that there were still records missing from the record and
requested that Petitioner file a complete and certified copy of the missing records. Id. at
2.

         On September 5, 2019, former Chief Special Master Dorsey (who was presiding
over the case at the time) stated that based on her review of the existing record, an onset
hearing was not necessary, nor were briefs needed. ECF No. 30. Petitioner was ordered
to refile her complete records as a new exhibit, including the request made upon the
facility and any response provided with the record or certified records from this provider.
Id. On October 29, 2019, Petitioner filed a certified copy of the missing records at
Petitioner’s Exhibit (Pet. Ex.) 14. See ECF No. 32.


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          The matter is now ripe for adjudication.

   II.       Issue

       At issue is whether the onset of Petitioner’s left shoulder pain was within 48-hours
after vaccination as set forth in the Vaccine Injury Table. 42 C.F.R. § 100.3(a) XIV.B.
(2017) (influenza vaccination); 2 C.F.R. § 100.3(c)(10).

   III.      Authority

       Pursuant to Section 13(a)(1)(A) of the Vaccine Act, 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 & 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.

         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


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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 following findings after a complete review of the record to include all medical
records, affidavits, Respondent’s Rule 4 report, and any additional evidence filed:

   •     Petitioner was administered a flu vaccine in her left shoulder on January 3, 2017.
         Ex. 1 at 1.

   •     In her affidavit, Ms. Decoursey averred “I received a flu shot in my left arm during
         a regular (ITP) Thrombocytopenia follow-up appointment at my Hematologist
         Clinic, UF Health Adult Hematology Oncology. Approximately 2 days after
         receiving the shot, I experienced soreness that continued to get worse and became
         unbearable. The pain became so bad that I could not lift my left arm away from my
         body. I had to use my right hand to lift my left arm just to bathe and dress myself.
         Activities such as driving and steering a car resulted in excruciating pain. There
         were times I needed help to help bathe and dress myself. The only relief I
         experienced was when resting my left arm against my body.” Ex. 8 at 1.

   •     On January 20, 2017, 17 days after vaccination, Ms. DeCoursey sent a message
         to the clinic where she received the vaccine and informed the clinical staff about
         the pain from the vaccination. See Ex. 7 at 1. The note states “I received the flu
         shot on January 3 there and I have been having alot [sic] of pain in my shoulder,
         its almost unbearable. Any suggestions to help ease this pain? Limited range of
         motion, swelling, very painful.” Id. The provider indicated that “the muscle must be


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       irritated” and recommended Ms. DeCoursey try a heating pad or cold compress
       and to take Tylenol for the discomfort. Id.

   •   On January 26, 2017, Ms. DeCoursey sent a follow-up message to the clinic. See
       Ex. 7 at 2. The message states “[t]he pain from flu shot site area (shoulder) hasn’t
       gotten any better. I’ve been doing as told, hot/cold compresses, Tylenol. This pain
       is so discomforting, this can’t be typical soreness its by far a 10(pain). I’m sorry to
       keep bothering the clinic, but I’m hurting.” Id. The provider forwarded Petitioner’s
       message to a physician and recommended that she check with her primary care
       physician for additional recommendations. Id.

   •   The next day, on January 27, 2017, Petitioner presented Dr. Jonathan Taffe, her
       primary care physician, for an initial evaluation of left shoulder pain. Ex. 6 at 1. Dr.
       Taffe noted “[g]radual onset since receiving flu vaccine. Duration: 3 weeks.
       Severity: moderate-severe.” Id. Dr. Taffe’s assessment was “Acute, moderate-
       severe. Differentials include [rotator cuff] RTC tear vs [subacromial bursitis] SAB
       but concerning for a tear. Discussed management: xray/MRI and [follow-up] f/u
       with results. If there is no tear then we can consider a steroid injection.” Id. at 3.

   •   More than one year later, and following a successful February 2017 steroid
       injection, on February 7, 2018, Petitioner presented to Dr. Joseph King, III on
       February 7, 2018, at the University of Florida Department of Orthopedics. Ex. 5 at
       1; Ex. 6 at 8. The note states that Ms. DeCoursey had complaints of left shoulder
       pain and stiffness with “sudden onset since 2-3 days after she got a flu shot on
       1/3/17. Patient denies history of a specific injury.” Ex. 5 at 3.

   •   On March 12, 2018, Ms. DeCoursey received a physical therapy consult with
       physical therapist, Christine Eckert. Ex. 9 at 7. The note states, “Patient got a flu
       shot last January and had typical soreness that never went away.” Id. The
       assessment continues, “[t]he patient presents today with left shoulder pain that
       began last year after receiving a flu shot causing her to not be able to lift her arm
       independently.”

        Although the record contains some ambiguities, it does not preponderantly support
a finding that onset began in 48 hours of vaccination. I base this determination on several
items of evidence. First, Petitioner’s own affidavit does not report an immediate onset, but
rather places it in two days. While arguably this could be deemed to mean less than 48
hours, it does not tend to suggest that. Second, although the records do support the
conclusion that Petitioner did feel pain close in time to receipt of the vaccine, and promptly
sought care for that pain, she did not right away describe a fast onset. Indeed, the January
27th record only reports a “gradual” onset, which is not wholly consistent with one within
48 hours. Ex. 6 at 1.

       Finally, and most persuasively, the records from a year later do not clarify onset
as closer in time to vaccination, but instead affirmatively state an onset of two to three
days post-vaccination. Ex. 5 at 3. In many cases in which onset is disputed, a petitioner

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over time more regularly identifies a closer onset – whereas here Petitioner (consistent
with her affidavit) does not.

        Accordingly, I find there is insufficient preponderant evidence to establish onset of
Petitioner’s pain within 48 hours of vaccination, and therefore this case must be
transferred from SPU. I also note, however, that other Table indicia of a valid SIRVA claim
(e.g., fairly immediate pain consistent with a Table definition for SIRVA) does seem to
exist – meaning that this claim is likely 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 will be seen favorably by the special master who receives it.

       The parties shall file a final settlement status report on or before August 31,
2020. The matter shall be transferred thereafter if the parties do not report progress
in these efforts.


IT IS SO ORDERED.

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




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