    In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 18-1507V
                                          UNPUBLISHED


    MAURA MCAULIFFE,                                            Chief Special Master Corcoran

                         Petitioner,                            Filed: February 18, 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 VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.

Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.


                                           FINDINGS OF FACT1

       On September 28, 2018, Maura McAuliffe 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 left shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
October 27, 2014. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.



1
   Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 decision 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 “§” 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 occurred
within 48 hours of vaccination. Specifically, Petitioner suffered pain within 48 hours of
vaccination

   I.     Relevant Procedural History

      Following the initial status conference held on December 20, 2018, Respondent
was ordered to file a status report indicating how he intends to proceed in this case. ECF
No. 13.
       On September 6, 2019, Respondent filed a Rule 4(c) Report and Motion to
Dismiss. ECF Nos. 21-22. Respondent asserted that Petitioner’s injury was not
consistent with a SIRVA because she had not established onset of shoulder pain within
48 hours of the vaccination. Res. Report at 8. Respondent noted that Petitioner had
alleged worsening pain that started “upon injection” and subsequently affected her ability
to perform activities of daily living. Id. at 8-9. However, Respondent argued that
Petitioner’s January 2015 trip to Puerto Rico and delay in seeking treatment were
inconsistent with the aforementioned allegations. Id.

        Respondent argued that, “[l]acking evidence to support a Table injury for SIRVA,
[P]etitioner cannot allege a claim for actual causation in the alternative utilizing the
‘lookback’ provision in Section 16(b) of the Vaccine Act.” Id. at 9. Respondent moved to
dismiss this case because Petitioner “is time-barred from filing a vaccine injury claim for
her October 27, 2014 flu vaccination based on actual causation.” Id. at 11.
      On September 20, 2019, Petitioner filed a Response to Respondent’s Motion to
Dismiss. ECF No. 23. Petitioner noted that the record is “replete with information
documenting that [P]etitioner’s shoulder pain was temporally associated with the flu
vaccination she received.” Id. at 2. Petitioner argued that Respondent’s Motion should
be denied because there is a factual dispute between the parties. Id. at 2-3.
        On November 21, 2019, a Scheduling Order was issued noting that I had reviewed
the evidence filed to date in this case. ECF No. 24. I stated that briefing and a hearing
were not necessary to make a finding of fact regarding the onset of Petitioner’s alleged
injury. Id. A deadline was set for Petitioner to file any outstanding medical records and
other relevant evidence she wished to have considered regarding this issue. Id.

       On January 5, 2020, Petitioner filed additional medical records, a supplemental
affidavit, as well as affidavits from Mark McAuliffe (her husband) and John Davis (her
brother). ECF No. 25. Petitioner filed an amended Statement of Completion on January
30, 2020. ECF No. 26. Accordingly, this matter is now ripe for adjudication.

   II.    Issue

      At issue is whether Petitioner’s first symptom or manifestation of onset after
vaccine administration (specifically pain) occurred within 48 hours, as required by the
Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table
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SIRVA. 42 C.F.R. § 100.3(a) XIV.B. (2017) (influenza vaccination); 42 C.F.R. §
100.3(c)(10)(ii) (required onset for pain listed in the QAI).

   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 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.” Curcuras 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, however, 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).

        Medical records may also 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


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recorded as having occurred outside such period.” § 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

       For the reasons discussed below, I find that the onset of Petitioner’s left shoulder
pain occurred within 48 hours of vaccination. I make this finding after a complete review
of the record to include all medical records, affidavits, Respondent’s Rule 4(c) Report,
and additional evidence filed. Specifically, I base this finding on the following evidence:


          •   On October 27, 2014, Petitioner was administered a flu vaccine in her left
              arm. Petitioner’s Exhibit (“Pet. Ex.”) 1 at 1.

          •   On February 10, 2015 (over three months post-vaccination), Petitioner
              called Norwood Internal Medicine to report that she had experienced an
              “intensiely [sic] sore arm” since her flu shot. Pet. Ex. 8 at 168. Petitioner
              added that she had experienced daily soreness as well as pain with lifting
              and movement. Id. Petitioner was advised to schedule an appointment.
              Id. at 169.

          •   On February 12, 2015, Petitioner presented to Sung Anderson, M.D., with
              complaints of left upper arm pain since her flu shot. Id. at 136. Petitioner
              noted that her symptoms “started on the day when she got the flue [sic]
              shot.” Id. at 137.

          •   On February 17, 2015, Petitioner presented to Andrew Chapman, M.D., with
              complaints of “ongoing left upper arm pain.” Id. at 132. Petitioner stated
              that her symptoms dated back to around October. Id. Petitioner specified
              that she had received “her usual annual flu shot and had the usual achy sort
              of post[-]injection discomfort, which [had] just not gone away.” Id. Petitioner
              denied any history of injury. Id. at 133. On examination, Petitioner
              presented with tenderness of the anterior joint line, reduced shoulder range
              of motion with pain, and negative Hawkin’s, Yergason’s, Speed’s, and
              O’Brien’s testing. Id. Petitioner was diagnosed with adhesive capsulitis and
              referred to physical therapy. Id. at 134.

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            •   On March 4, 2015, Petitioner presented to Sports & Orthopedic Physical
                Therapy, Inc., for an initial examination. Pet. Ex. 4 at 3. Petitioner stated
                that she “noticed [left] shoulder pain after a flu injection in [October 2014]”
                that grew progressively worse. Id.

            •   On December 20, 2018, Petitioner filed an affidavit in support of her Petition,
                averring that she experienced pain and stinging immediately following her
                vaccination, along with achiness that continued over several days. Pet. Ex.
                14 at ¶ 4. At the time, Petitioner presumed that these symptoms
                represented routine post-vaccination pain. Id. However, Petitioner stated
                that she continued to have pain over the following months, which led to
                limitations on her ability to perform activities of daily living. Id. at ¶ 5.
                Petitioner recalled that her sister eventually urged her to seek medical care
                in January 2015 after Petitioner was observed to have difficulty handling
                luggage on a trip to Puerto Rico. Id. at ¶ 6.

            •   On January 5, 2020, Petitioner filed a supplemental affidavit. Pet. Ex. 20.
                Petitioner reiterated that she experienced pain, stinging, and achiness
                immediately after her vaccination. Id. at ¶ 4. Petitioner recalled that she
                woke up the morning following her vaccination with “a very heavy and sore
                arm” and had difficulty getting dressed. 3 Id. at ¶ 6. Petitioner averred that
                her pain continued over the subsequent weeks and months, which led to
                limitations on her ability to play golf, care for her daughter, sleep, exercise,
                complete household tasks, and perform other activities of daily living. Id. at
                ¶¶ 7-8, 10-12.

            •   On January 5, 2020, Petitioner also filed an affidavit from Mark McAuliffe,
                her husband. Pet. Ex. 21. Mr. McAuliffe recalled that Petitioner complained
                of a sore arm the evening of the October 27, 2014 vaccination. Id. at ¶ 3.
                According to Mr. McAuliffe, Petitioner woke up the next morning with pain
                when she attempted to lift her arm. Id. at ¶ 4. Over the following days, Mr.
                McAuliffe noted that Petitioner’s symptoms caused difficulties performing
                activities of daily living. Id. at ¶¶ 5-8.

            •   On January 5, 2020, Petitioner also filed an affidavit from John Davis, her
                brother. Pet. Ex. 22. Mr. Davis recalled a visit to Petitioner’s home on
                October 29, 2014, during which Petitioner told him that “her arm was sore
                from a flu shot she had received two days prior.” Id. at ¶¶ 3-4.



3
  In addition, on November 11, 2019 (albeit after the filing of this action), Petitioner presented to Brigham
and Women’s Hospital for an orthopedic appointment. Pet. Ex. 18 at 1. Petitioner noted that she had
received a flu shot five years earlier and had “woke up the next morning with an inability to move her left
arm.” Id. Petitioner stated that she continued to experience symptoms over the following months. Id.



                                                     5
       I find Petitioner’s affidavits to be credible and consistent with the
contemporaneously created treatment records. Indeed, at her first post-vaccination
medical appointment, Petitioner specifically tied her left arm pain to the vaccination and
noted that her pain had begun the day of her vaccination. Pet. Ex. 8 at 136-37. At
subsequent medical encounters, Petitioner continued to tie her symptoms to the
vaccination with onset of pain occurring shortly thereafter. See, e.g., Pet. Exs. 8 at 132;
18 at 1.

      In his Rule 4(c) Report, Respondent noted that Petitioner has alleged persistent,
worsening pain that started “upon injection” and subsequently affected her ability to
perform activities of daily living. Res. Report at 8-9. Respondent argued that Petitioner’s
January 2015 trip to Puerto Rico and delay in seeking treatment are inconsistent with the
aforementioned allegations. Id. I do not find Respondent’s arguments to be persuasive.

       As an initial matter, Respondent has not adequately articulated how a trip to Puerto
Rico in January 2015 would preclude a finding that the onset of Petitioner’s shoulder pain
occurred within 48 hours of the October 27, 2014 vaccination. In the period following her
vaccination, Petitioner alleged some (moderate) limitations on her activities of daily living;
however, I find no evidence to suggest these limitations would have prevented Petitioner
from making the aforementioned trip. Respondent’s arguments on this point are more
relevant to the issue of potential damages for Petitioner’s alleged SIRVA.

        Moreover, although Petitioner did not seek treatment for her left shoulder injury
until approximately three months following the October 27, 2014 vaccination, I do not find
this delay to appreciably undermine her contention of an earlier onset. Indeed,
Petitioner’s medical records and affidavits reflect a pattern similar to other SIRVA claims,
in which injured parties reasonably delay treatment, often based on the assumption that
their pain is likely transitory. See, e.g., Larish v. Sec’y of Health & Human Servs., 18-
20V, 2019 WL 5266886, at *6-10 (Fed. Cl. Spec. Mstr. Jul. 2, 2019) (finding onset of
shoulder pain within 48 hours of vaccination despite a nine-week delay in treatment
because petitioner’s medical records recorded immediate post-vaccination pain);
Tenneson v. Sec’y of Health & Human Servs., No. 16-1664V, 2018 WL 3083140, at *5
(Fed. Cl. Spec. Mstr. Mar. 30, 2018) (finding a 48-hour onset of shoulder pain despite a
nearly six-month delay in seeking treatment), motion for review denied, 142 Fed. Cl. 329
(2019); Williams v. Sec’y of Health & Human Servs., 17-830V, 2019 WL 1040410, at *9
(Fed. Cl. Spec. Mstr. Jan. 31, 2019) (noting a delay in seeking treatment because
petitioner underestimated the severity of her shoulder injury); Knauss v. Sec’y of Health
& Human Servs., 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. May 23, 2018)
(noting a three-month delay in seeking treatment).

       Accordingly, I find there is preponderant evidence to establish that the onset of
Petitioner’s left shoulder pain occurred within 48 hours of the October 27, 2014 flu
vaccination.




                                              6
   V.     Scheduling Order

        Respondent shall file a status report, by no later than Thursday, March 19, 2020,
indicating whether he is interested in exploring an informal resolution of Petitioner’s claim.


IT IS SO ORDERED.

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




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