         In the United States Court of Federal Claims
                                  OFFICE OF SPECIAL MASTERS
                                           No. 18-0027V
                                    Filed: September 20, 2019
                                          UNPUBLISHED


    MELISSA BISHOP,

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

                        Respondent.


Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner.
Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent.

                                          FINDING OF FACT1

Dorsey, Chief Special Master:

        On January 4, 2018, petitioner 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 left shoulder injuries as a result of
an influenza (“flu”) vaccine administered in her left shoulder on December 1, 2016.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.



1The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
means the 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, undersigned is 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).

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
        For the reasons discussed below, the undersigned finds that the onset of
petitioner’s shoulder injury related to vaccine administration (“SIRVA”) occurred within
48 hours of vaccination.

   I.     Relevant Procedural History

       On January 4, 2018, petitioner filed her petition and medical records (ECF No. 1).
She filed a statement of completion on January 9, 2018 (ECF No. 5). Petitioner filed
additional medical records on April 5, 2018 (ECF No. 9). On December 7, 2018,
respondent filed his Rule 4(c) report asserting that petitioner had failed to establish
entitlement to compensation for either a Table shoulder injury related to vaccine
administration (“SIRVA”) claim or a claim for shoulder injuries caused in fact by the flu
vaccine (ECF No. 20).

       On January 10, 2019, petitioner filed Petitioner’s Exhibit (“Pet. Ex.”) a detailed
affidavit (ECF No. 22). On February 13, 2019, petitioner filed an expert report (ECF No.
23). On May 13, 2019, petitioner filed Pet. Ex. 15-18, including three witness affidavits,
and a statement of completion (ECF Nos. 27-28). On June 26, 2019, respondent filed
Respondent’s Exhibit A, an expert report (ECF No. 29).

        On July 17, 2019, the undersigned issued a scheduling order indicating that the
parties could file additional evidence concerning onset by August 21, 2019, and that
after that date the undersigned intended to issue a fact ruling on the issue of onset
(ECF No. 30). No additional evidence was filed, and on August 21, 2019 petitioner filed
an amended statement of completion stating the petitioner “now believes all relevant
medical records have been filed in this matter” (ECF No. 31).

   II.    Issue

      At issue is whether petitioner’s first symptom or manifestation of onset after
vaccine administration was within 48 hours as set forth in the Vaccine Injury Table. 42
C.F.R. § 100.3(a) XIV.B. (2017) (influenza vaccination). Additionally, the Qualifications
and aids to interpretation (“QAI”) for a Table SIRVA requires that a petitioner’s pain
occur within this same time frame, 48 hours. 42 C.F.R. § 100.3(c)(10).

   III.   Authority

       Pursuant to Vaccine Act § 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
§ 11(c)(1). 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.” Vaccine Act § 13(b)(2).
“Such a finding may be made only upon demonstration by a preponderance of the

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evidence that the onset [of the injury] . . . did in fact occur within the time period
described in the Vaccine Injury Table.” Id.
       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.
Vaccine Act § 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.” Curcuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
   IV.       Finding of Fact
       The undersigned finds that the onset of petitioner’s injury occurred within 48
hours of her December 1, 2016 flu vaccination (Pet. Ex. 1 at 1). The undersigned
makes this finding after a complete review of the record to include all medical records,
affidavits, expert reports, respondent’s Rule 4 report, and additional evidence filed.
Specifically, the undersigned bases the finding on the following evidence:


         •   Pet. Ex. 2 at 11, a record of petitioner’s March 9, 2017 visit with nurse
             practitioner Dewayne Steffey documenting pain in her “left arm triceps where
             she had a flu shot. She never had pain in it prior to the shot.” On
             examination, petitioner was found to have musculoskeletal joint pain with
             range of motion and limited range of motion in her left acromioclavicular joint.
             Id.


         •   Pet. Ex. 2 at 8, a record of petitioner’s April 6, 2017 visit with nurse
             practitioner Dewayne Steffey documenting that petitioner was “having
             difficulty lifting her left arm since she had a flu shot last December. The arm is
             painful and cannot be lifted very high.” On examination, petitioner’s left
             shoulder joint was unable to flex past 45 degrees. Id.


         •   Pet. Ex. 4 at 1, a record of petitioner’s April 14, 2017 left shoulder MRI,
             documenting the reason for the MRI as “[l]eft shoulder pain after flu shot in
             December.” The MRI findings included minimal fluid in the shoulder joint and
             subacromial subdeltoid bursa, mild thickening of the coracohumeral ligament
             with mild edematous changes in the rotator cuff, minimal tendinopathy of the
             supraspinatus tendon, and findings suggestive of adhesive capsulitis. Id.

         •   Pet. Ex. 8 at 2, a record of petitioner’s May 23, 2017 appointment with Dr.
             Linda Pearson noting the petitioner “had the flu injection in December 2016
             and had complications since then with the left shoulder and arm.”


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      •   Pet. Ex. 5 at 35, a record of petitioner’s May 24, 2017 physical therapy initial
          evaluation noting a “5 month history of constant left shoulder pain and
          stiffness of varying intensities following her flu shot in December.” The
          evaluation listed the mechanism of injury as “flu shot.” Id.

      •   Pet. Ex. 6 at 2, a record of petitioner’s June 6, 2017 appointment with Dr.
          Jeffery France, noting that petitioner “had an injection in her left shoulder for
          flu in December 2016. It hurt and she kind of held it still and it has gotten stiff.”
          On examination, Dr. France found that petitioner had “greatly decreased
          abduction, external rotation.” Id.

      •   Pet. Ex. 13 at ¶ 2, petitioner’s detailed affidavit, noting that on December 1,
          2016 when the vaccine was administered, “it burned and hurt. Immediately
          following vaccination, I felt pain in my left shoulder. The pain and burning
          continued to hurt after she administered the shot . . . .When I first received my
          injection, my range of motion was affected . . . . Later on that night my left arm
          and shoulder was still sore. I started taking Tylenol the day of vaccination for
          pain.”

      •   Pet. Ex. 16 at ¶ 3, affidavit of petitioner’s spouse David Bishop, stating that
          he accompanied her to the appointment where she received the flu vaccine
          and that when she returned to the lobby, she told him that the shot “hurt and
          burned immediately when the nurse had given it to her.”

       The above medical entries and affidavit evidence show that petitioner’s pain
began within 48 hours of her flu vaccination. In this case, the medical records
document that petitioner sought medical care for her shoulder injury three months
following the vaccination. The undersigned has found onset within 48 hours to be
established in cases with longer delays in seeking medical care than this.

        A delay in seeking care is not uncommon in SIRVA cases and is not dispositive.
See Cooper v. Sec’y of Health and Human Servs., No. 16-1387V, 2018 WL 1835179, at
*6 (Fed. Cl. Spec. Mstr. Jan. 18, 2018) (“the undersigned does not find a delay in
treatment of several months to be dispositive in and of itself regarding the question of
onset in a SIRVA case such as this”); see also Ray v. Sec’y of Health and Human
Servs., No. 16-1388V, 2018 WL 7051571, at *6 (Fed. Cl. Spec. Mstr. Dec. 17, 2018)
(citing Cooper). The Vaccine Act “does not mandate that the time of first onset be
determined by the earliest entry” in the medical records. Lopez v. Sec’y of Health &
Human Servs., No. 90-12V, 1990 WL 293414 (Cl. Ct. Spec. Mstr. Dec. 10, 1990).
       In Tenneson v. Sec’y of Health & Human Servs., No. 16-1664V, 2018 WL
3083140 (Fed. Cl. Spec. Mstr. Mar. 30, 2018), petitioner did not seek treatment for her
SIRVA for nearly six months after vaccination. After vaccination and before seeking
treatment for her shoulder, the petitioner in Tenneson made calls to her primary care
provider and visited the emergency room for an unrelated condition. After a thorough
review of the records, the undersigned in Tenneson found that this delay did not

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establish that the onset of pain was not within 48 hours of vaccination. The
undersigned explained that the “fact that petitioner delayed seeking treatment for her
shoulder symptoms does not negate the value of her treatment records or render this
evidence not credible, although it may speak to the severity of her injury.” Id. at *5.
Respondent argued that the fact that petitioner’s shoulder condition was not mentioned
at these times meant that the shoulder pain began three to six months following
vaccination. The undersigned rejected this argument.
       In this case, respondent emphasizes that petitioner had medical appointments for
pain on January 10, 2017, six weeks after vaccination, and February 9, 2017, ten weeks
after vaccination, and did not report shoulder or arm pain. Respondent’s Rule 4(c)
Report at 8. The records of the January 10, 2017 (Pet. Ex. 2 at 16-18) and February 9,
2017 (Pet. Ex. 2 at 13-14) visits do not specifically mention a shoulder injury.
Respondent infers that because a shoulder injury is not mentioned in the medical
records, petitioner had not suffered a shoulder injury at the time of these visits and,
therefore, petitioner has not established that the onset of her shoulder pain occurred
within 48 hours of her vaccination.
       The record of petitioner’s January 10, 2017 appointment indicates that she was
diagnosed with fibromyalgia in 2007 and had low back pain since she was a teenager.
Pet. Ex. 2 at 17. Diagnoses recorded for this visit included hypertension, gastro-
esophageal reflux disease, fibromyalgia, major depressive disorder, migraine,
osteoarthritis, and low back pain. Id. at 17-18.
        In her detailed affidavit, petitioner explained, “January 9, 20173 was my first visit
with Dr. Steffey; I was a new patient . . . . He was asking me a lot of questions since it
was my first visit with him. And of course being a new patient I was very tired from all
the wait and from all the questions and so forth. And I just wanted to hurry up and get
out of there that day, so I just didn’t mention my left shoulder issues.” Pet. Ex. 13 at ¶ 8.
       With respect to the February 9, 2017 visit, petitioner states, “I remember saying
something to Dr. Steffey about my arm. It was at the end of my appointment with Dr.
Steffey as I was leaving . . . . He must of wrote it down at the end of my appointment,
because in his notes it does say at the end ‘she now has the other complaints,’ which I
believe is about my arm. I don’t know why he did not specifically note my arm
complaints in the February 9, 2017 record.” Pet. Ex. 13 at ¶ 9. Petitioner is correct in
noting that the record of her February 9, 2017 appointment states, “[s]he now has the
other complaints.” Pet. Ex. 2 at 14.
        The undersigned finds that the fact that the records of petitioner’s January 10
and February 9, 2017 appointments do not mention her shoulder pain does not
establish that the shoulder pain did not exist on that date, although it may speak to the
severity of her injury. See Tenneson, 2018 WL 3083140 at *5. The undersigned finds
petitioner’s explanation concerning the January 10 visit to be supported by the medical
record noting the numerous conditions with which she was diagnosed. Further, her



3   This appears to be a reference to the January 10, 2017 appointment recorded in Pet. Ex. 2 at 16.

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explanation concerning the February 9 visit is supported by the note indicating that she
“now has the other complaints” in the record of that visit.
         Moreover, when petitioner did seek treatment for her arm/shoulder injury, she
repeatedly and consistently reported experiencing pain since receiving the vaccine and
related her symptoms to her vaccination. See, e.g., Pet. Ex. 2 at 8 (reporting during an
April 6, 2017 appointment that her arm was painful and difficult to lift since her flu shot in
December); Pet. Ex. 8 at 2 (record of May 23, 2017 appointment where petitioner
reported that she “had the flu injection in December 2016 and had complications since
then with the left shoulder and arm”); Pet Ex. 5 at 35 (May 24, 2017 physical therapy
initial evaluation noting that petitioner had a five month history of left shoulder pain and
stiffness following her flu shot in December); and Pet. Ex. 6 at 2 (June 6, 2017 record of
appointment indicating that petitioner had a flu shot in December 2016 that hurt”).
       Based on the undersigned’s review of the record as a whole, in particular the
portions cited herein, the undersigned finds that petitioner has established, by a
preponderance of the evidence, that the onset of her shoulder pain occurred within 48
hours of her December 1, 2016 flu vaccination.
   V.      Scheduling Order
      In the Rule 4(c) report, respondent contested entitlement on other grounds, and
both parties have filed expert reports. The undersigned determines that the proper
course is for the parties to consult with one another and discuss how they believe this
case should proceed.
Accordingly, IT IS ORDERED THAT:
   •    Petitioner shall file, by Monday, November 04, 2019, a joint status report
        indicating how the parties wish to proceed in this case. A status conference may
        be requested if the parties believe it would be helpful.


IT IS SO ORDERED.

                                    s/Nora Beth Dorsey
                                    Nora Beth Dorsey
                                    Chief Special Master




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