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

*********************
ALAN PETERSON,           *
                         *
             Petitioner, *                           No. 17-732V
                         *                           Special Master Christian J. Moran
v.                       *
                         *
SECRETARY OF HEALTH      *                           Filed: October 23, 2019
AND HUMAN SERVICES,      *
                         *                           Onset of shoulder pain, fact ruling
             Respondent. *
*********************

Shealene P. Mancuso, Muller Brazil, LLP, Dresher, PA, for petitioner;
Debra A. Filteau Bagley, United States Dep’t of Justice, Washington, DC, for
respondent.

                    UNPUBLISHED RULING FINDING FACTS*

       On June 2, 2017, Alan Peterson filed a petition for compensation under the
National Childhood Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-
10—34 (2012), alleging that he suffers from right shoulder injuries as a result of
the influenza vaccine he received on October 27, 2015. Pet. at 1-2. The parties
dispute when Mr. Peterson started to experience pain in his right shoulder for
purposes of determining the existence of a SIRVA table injury. For the reasons
explained below, the undersigned finds that a preponderance of the evidence
supports an onset date of approximately July 14, 2014, for Mr. Peterson’s
symptoms.



       *
         The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17,
2002), requires that the Court post this ruling on its website. Anyone will be able to access this
ruling via the internet (https://www.uscfc.uscourts.gov/aggregator/sources/7). 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.
                               Procedural History

       As support for his claim and the onset of his injury, Mr. Peterson filed
affidavits and medical records. The Secretary filed a Rule 4(c) report that disputed
Mr. Peterson’s claim and the onset of his injury. The Secretary took issue
particularly with Mr. Peterson’s satisfaction of the first two requirements for
establishing a SIRVA table injury, namely that (1) there was no history of pain in
the affected shoulder that would account for the claimed injury, and (2) the pain
occurred within 48 hours after the flu vaccine was administered. See 42 C.F.R. §
100.3(c)(10).

       In lieu of a hearing, the parties agreed to proceed with videotaped
depositions of witnesses. The undersigned appreciates and thanks the attorneys for
their professionalism in conducting these alternative procedures. Videotaped
depositions of Alan Peterson, Susan Peterson, and Daryl Steinke were taken on
August 22, 2018. A telephonic deposition of Javier Alvarez was taken on
December 13, 2018. After the submission of the deposition transcripts and video,
Mr. Peterson moved for a ruling on the record, and the Secretary filed a response.
With these submissions, this matter is ripe for adjudication.

                           Standard for Finding Facts

      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).

       Not only are medical records presumed to be accurate, they are also
presumed to be complete, in the sense that the medical records present all the
patient’s medical issues. Completeness is presumed due to a series of propositions.
First, when people are ill, they see a medical professional. Second, when ill people
                                         2
see a doctor, they report all of their problems to the doctor. Third, having heard
about the symptoms, the doctor records what he or she was told.

       Appellate authorities have accepted the reasoning supporting a presumption
that medical records created contemporaneously with the events being described
are accurate and complete. A notable example is Cucuras in which petitioners
asserted that their daughter, Nicole, began having seizures within one day of
receiving a vaccination, although medical records created around that time
suggested that the seizures began at least one week after the vaccination. Cucuras,
993 F.3d at 1527. A judge reviewing the special master’s decision stated that “[i]n
light of [the parents’] concern for Nicole’s treatment . . . it strains reason to
conclude that petitioners would fail to accurately report the onset of their
daughter’s symptoms. It is equally unlikely that pediatric neurologists, who are
trained in taking medical histories concerning the onset of neurologically
significant symptoms, would consistently but erroneously report the onset of
seizures a week after they in fact occurred.” Cucuras v. Sec’y of Health & Human
Servs., 26 Cl. Ct. 537, 543 (1992), aff’d, 993 F.2d 1525 (Fed. Cir. 1993).

       Judges of the Court of Federal Claims have followed Cucuras in affirming
findings by special masters that the lack of contemporaneously created medical
records can contradict a testimonial assertion that symptoms appeared on a certain
date. See, e.g., Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl. 598, 608
(Fed. Cl. 2010) (stating “[g]iven the inconsistencies between petitioner’s testimony
and his contemporaneous medical records, the special master’s decision to rely on
petitioner’s medical records was rational and consistent with applicable law”),
aff’d sub nom. Rickett v. Sec’y of Health & Human Servs., 468 Fed. Appx. 952
(Fed. Cir. 2011) (non-precedential opinion); Doe/17 v. Sec’y of Health & Human
Servs., 84 Fed. Cl. 691, 711 (2008); Ryman v. Sec’y of Health & Human Servs.,
65 Fed. Cl. 35, 41-42 (2005); Snyder v. Sec’y of Health & Human Servs., 36 Fed.
Cl. 461, 465 (1996) (stating “The special master apparently reasoned that, if Frank
suffered such [developmental] losses immediately following the vaccination, it was
more likely than not that this traumatic event, or his parents’ mention of it, would
have been noted by at least one of the medical record professionals who evaluated
Frank during his life to date. Finding Frank’s medical history silent on his loss of
developmental milestones, the special master questioned petitioner’s memory of
the events, not her sincerity.”), aff’d, 117 F.3d 545, 547-48 (Fed. Cir. 1997).

       The presumption that contemporaneously created medical records are
accurate and complete is rebuttable, however. For cases alleging a condition found
in the Vaccine Injury Table, special masters may find when a first symptom
                                          3
appeared, despite the lack of a notation in a contemporaneous medical record. 42
U.S.C. § 300aa-13(b)(2). By extension, special masters may engage in similar
fact-finding for cases alleging an off-Table injury. In such cases, special masters
are expected to consider whether medical records are accurate and complete. To
overcome the presumption that written records are accurate, testimony is required
to be “consistent, clear, cogent, and compelling.” Blutstein v. Sec’y of Health &
Human Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June
30, 1998).

       In determining the accuracy and completeness of medical records, special
masters will consider various explanations for inconsistencies between
contemporaneously created medical records and later given testimony. The Court
of Federal Claims has identified four such explanations for explaining
inconsistencies: (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 Health &
Human Servs., 110 Fed. Cl. 184, 203 (2013), aff’d, 746 F.3d 1334 (Fed. Cir.
2014).

       When weighing divergent pieces of evidence, special masters usually find
contemporaneously written medical records to be more significant than oral
testimony. Cucuras, 993 F.2d at 1528. Testimony offered after the events in
question is less reliable than contemporaneous reports when the motivation for
accurate explication of symptoms is more immediate. Reusser v. Sec’y of Health
& Human Servs., 28 Fed. Cl. 516, 523 (1993). However, compelling oral
testimony may be more persuasive than written records. Campbell, 69 Fed. Cl. at
779 (“[L]ike any norm based upon common sense and experience, this rule should
not be treated as an absolute and must yield where the factual predicates for its
application are weak or lacking.”); Camery v. Sec’y of Health & Human Servs., 42
Fed. Cl. 381, 391 (1998) (this rule “should not be applied inflexibly, because
medical records may be incomplete or inaccurate”); Murphy v. Sec’y of Health &
Human Servs., 23 Cl. Ct. 726, 733 (1991) (“[T]he absence of a reference to a
condition or circumstance is much less significant than a reference which negates
the existence of the condition or circumstance.”) (citation omitted), aff’d, 968 F.2d
1226 (Fed. Cir. 1992).




                                          4
                                     Discussion

       Based on Mr. Peterson’s contentions, as well as the Secretary’s challenges to
his claim, see Resp’t’s Resp. at 2, the key issues involve: (1) whether Mr. Peterson
began experiencing right shoulder pain in 2014 before his vaccination such that
any pre-existing problem explains the alleged pain experienced post-vaccination,
(2) whether Mr. Peterson experienced pain within 48 hours after his flu
vaccination, and (3) whether Mr. Peterson’s shoulder pain continued without
interruption. 42 C.F.R. §100.3(c)(10)(i)-(ii). The undersigned finds that Mr.
Peterson experienced pain before his vaccination that could explain his post-
vaccination pain; that Mr. Peterson experienced pain within 48 hours of his
vaccination; and that Mr. Peterson experienced a temporary resolution of shoulder
pain between June 2016 and February 2017.

   A. Shoulder Problem before Vaccination

       The parties dispute the onset of Mr. Peterson’s shoulder pain. Mr. Peterson
asserts that before vaccination, he did not suffer shoulder pain and that the pain
began immediately after his flu vaccination. The Secretary asserts that Mr.
Peterson complained of pain in the affected shoulder more than a year prior to
vaccination.

        The first incident relevant to Mr. Peterson’s pre-vaccination pain occurred
on April 5, 2014, when he experienced a “haying accident” that occurred on the
Petersons’ farm. Mr. Peterson described that he “trapped [his] wrist between the
hay and . . . a metal bale feeder,” injuring his wrist to the point that he sought
emergency medical treatment. Exhibit 20 (Deposition Tr. of Alan Peterson) at 5.
In the records from Mr. Peterson’s emergency department visit, Dr. Brunk noted
that Mr. Peterson had “injured his right wrist . . . fielding hay bales” and that
“examination of right wrist shows a bit of swelling over the proximal wrist.”
Exhibit 2 at 161. Dr. Brunk did not, however, note any report or evidence of a
shoulder injury. Id. at 161-64. Both Mr. Peterson and his wife, Susan Peterson,
describe Mr. Peterson experiencing shoulder pain as an extension of the wrist
injury that was the predominate injury resulting from this incident. Exhibit 20 at
128-29; exhibit 21 (Deposition Tr. of Susan Peterson) at 35. Specifically, Mr.
Peterson testified that “the [right shoulder] pain extended the length of [his] arm
and to [his] wrist.” Exhibit 20 at 162. However, Mr. Peterson noted that all
injuries, including the shoulder pain, resolved within six weeks after this incident.
Id. at 11.


                                          5
       According to his medical records, Mr. Peterson first complained of right
shoulder pain later that year during a visit to his primary care doctor, Dr. Burnet,
on August 25, 2014. Exhibit 2 at 172. Though Mr. Peterson claims not to recall
much of the content of the visit reflected in Dr. Burnet’s notes, these notes indicate
that during this visit, Mr. Peterson reported right shoulder pain that began six
weeks prior as a result of a strain from overhead lifting. Id. Specifically, in his
notes, Dr. Burnet states:

      Does mention injuring his right shoulder. Lifting something. Pain
      started to the right anterior shoulder at that time. Present for 6 weeks.
      No [sic] getting better. Over head lifting and pushing activities cause
      pain . . . Has had previous issues with right shoulder. Has has [sic]
      therapy in the past.

Id. Dr. Burnet conducted a physical examination of Mr. Peterson’s shoulder and
noted “some painful [range of motion] at right shoulder with external rotation” and
“[s]ome tender to anterior shoulder.” Id. at 176. He further characterized the
injury as a “rotator cuff issue” and offered Mr. Peterson a physical therapy referral.
Id. (“For right shoulder, likely rotator cuff issue. Offered PT. He has home
program that he received with his last shoulder injury.”).

       The parties differ in their interpretations of Dr. Burnet’s note describing the
shoulder injury. Mr. Peterson argues that his complaint to Dr. Burnet about
shoulder pain related to the April 5, 2014 haying accident Mr. Peterson. Exhibit 20
at 71-74 (claiming there was no explanation for Dr. Burnet’s mention of new
shoulder pain not resulting from the haying accident). On the other hand, the
Secretary maintains that this shoulder pain developed from a later strain from
overhead lifting during a “cattle feeding incident.” See Pet’r’s Mot. For Fact
Ruling at 7 (“Petitioner presented to his primary care physician, Dr. Joel Burnet,
following a cattle feeding incident . . .”); Resp’t’s Resp. at 1 n.1 (contending that
Mr. Peterson complained of “distinct and separate shoulder pain” at the August
2014 visit).

      Weighing Mr. Peterson’s medical records against his and Ms. Peterson’s
testimony, a preponderance of the evidence supports a finding that Mr. Peterson
experienced right shoulder pain distinct from his haying accident in 2014. The
notes made by Mr. Peterson’s primary care doctor, Dr. Burnet, are of particular
weight and persuasiveness. In these notes made during the appointment on August
25, 2014, Dr. Burnet specifically states that Mr. Peterson reported injuring his right


                                          6
shoulder “lifting something” about six weeks prior to the appointment, resulting in
pain on the “right anterior shoulder.” Exhibit 2 at 172.

       As the Secretary notes in his response, there is no record of Mr. Peterson
complaining of shoulder pain immediately after the haying accident, see exhibit 2
at 161-64, and Dr. Burnet specifically notes at the August 2014 visit that the
shoulder pain complained of occurred as a result of strain from overhead lifting,
and that the pain had only been present for six weeks prior to this appointment.
Exhibit 2 at 172. Additionally, notes from a physical therapy session on May 27,
2016, refers to this same pre-vaccination shoulder pain when describing Mr.
Peterson’s medical history. Exhibit 3 at 4. Specifically, the physical therapist
states that Mr. Peterson’s right shoulder pain “worsened in October” of the
previous year after receiving his flu shot. Id. (emphasis added). The note goes on
to describe a history of “posterior shoulder pain” that was less intense than the pain
complained of during that physical therapy session. Id.

       As discussed previously, special masters generally consider
contemporaneous medical records more compelling than oral testimony, Cucuras,
993 F.2d at 1528, but medical records can be rebutted, Blutstein, 1998 WL
408611, at *5. Mr. Peterson has offered no explanation in this case to discredit the
information contained in these documents. When asked about Dr. Burnet’s notes,
Mr. Peterson stated that Dr. Burnet’s mention of the pain being “present for 6
weeks” referred to his shoulder pain following the April 2014 haying incident
lasting for six weeks. Exhibit 20 at 71. He could not explain, however, why the
note “No getting better” immediately followed “present for 6 weeks” in Dr.
Burnet’s notes, stating “I don’t know where that came from. I really don’t.” Id. In
his deposition, Mr. Peterson speculated that Dr. Burnet and he may have been
discussing the haying incident at the time, but could not recall sustaining any other
injury that year. Id. at 72. Mr. Peterson also could not recall specifics related to
Dr. Burnet’s shoulder examination, diagnosing a “rotator cuff issue,” or offering
physical therapy during this same appointment, though these steps are all
documented in Dr. Burnet’s notes from the appointment. Id. at 72-73; exhibit 2 at
176 (“For right shoulder, likely rotator cuff issue. Offered PT. He has home
program that he received with his last shoulder injury.”). Additionally, Mr.
Peterson has offered no explanation for or evidence rebutting the notation made by
his physical therapist on May 27, 2016, referring to pre-vaccination right shoulder
pain. Exhibit 3 at 4. When asked about this note, specifically the portion
indicating a history of shoulder pain before his October vaccination, Mr. Peterson
stated that he did not recall reporting any pre-vaccination shoulder pain to the
physical therapist other than in connection with the haying incident, and denied
                                          7
experiencing ongoing shoulder pain at the time of vaccination as implied in the
physical therapist’s notes. Exhibit 20 at 91.

       Thus, though the witnesses’ testimony indicates Mr. Peterson did not
complain to his family and friends about right shoulder pain before his flu
vaccination, see exhibit 21 at 19; exhibit 22 at 20; exhibit 25 at 35, the undersigned
finds that the absence of specific complaints during this time period does not
outweigh the medical documentation of pre-vaccination rotator cuff issues and
right shoulder pain.

       Mr. Peterson stated that any shoulder pain he experienced in 2014 resolved
by “the last quarter of 2014.” Exhibit 6 at 1, ¶ 2. Between his August 2014 visit to
Dr. Burnet and his flu vaccination in October 2015, Mr. Peterson continued to
engage normally in his hunting and fishing activities, travelling to Marinette,
Wisconsin, for one overnight trip, and Mobridge, South Dakota, for two overnight
trips. Exhibit 9 at 3, ¶ 18. However, the Secretary contends that Mr. Peterson’s
right shoulder pain was ongoing up until he received his flu vaccination in October
2015. See Resp’t’s Resp. at 14-15; see also exhibit 3 at 4 (stating that Mr.
Peterson’s pain “worsened” in October 2015 after receiving the flu shot). The
evidence indicates the shoulder pain, while potentially not continuous at the same
level of intensity throughout this time period, remained and fluctuated during the
time between the overhead lifting strain six weeks prior to Mr. Peterson’s August
2014 visit with Dr. Burnet and his flu vaccination in October 2015. This is
evidenced most notably by the physical therapist’s notation describing the pain as
having “worsened” at the time of Mr. Peterson’s flu shot. Exhibit 3 at 4.

   B. Vaccination and Shoulder Problems within 48 Hours

       On October 27, 2015, Mr. Peterson and his wife received their flu
vaccinations. Exhibit 2 at 232; exhibit 21 at 36. Mr. Peterson reports that he
started experiencing shoulder pain immediately after receiving the flu shot, and
that the pain steadily increased over the following few days. Exhibit 20 at 138-40.
Mr. Peterson then states that he complained to his friend Daryl Steinke about the
shoulder pain a few days later while the two were en route to Mobridge, South
Dakota, for a fishing trip. Id. at 23. Mr. Steinke testified in his deposition both
that Mr. Peterson complained about shoulder soreness on that drive and had to
drive with his left arm more than usual because of his right shoulder pain. Exhibit
22 at 17-18, 20. There is some dispute as to when this trip took place. However,
while the exact date of departure is unclear, the testimony of both Mr. Peterson and
Mr. Steinke, as well as a receipt from a gas station in Mobridge dated October 29,
                                          8
2015, tend to establish that the fishing trip began on October 29 and lasted through
the weekend after Mr. Peterson received his flu shot. See Exhibit 20 at 23; exhibit
22 at 34; exhibit 18.

      Mr. Peterson then claims that he remarked about his shoulder pain and
exhibited his limited range of motion to his neighbor Javier Alvarez “[s]ometime
probably before Thanksgiving in November,” as well as during Thanksgiving
dinner at the Petersons’ home. Exhibit 20 at 25-26; see exhibit 25 at 24-27.

        Mr. Peterson visited Dr. Klein for a doctor’s appointment to address his
shoulder pain on April 5, 2016. Exhibit 2 at 254. Between his vaccination on
October 27, 2015, and his appointment with Dr. Klein on April 5, 2016, Mr.
Peterson saw four doctors, including an orthopedist, an otolaryngology specialist, a
neuroscience clinician, and an ophthalmologist. Id. at 233, 237, 239-40, 242. He
did not report shoulder pain to any of these doctors. He explains that he delayed
seeking medical treatment for his shoulder pain because Ms. Peterson had sought
medical treatment from Dr. Klein and Mr. Peterson was “just waiting for her to
kind of work through her process and see what Dr. Klein was going to conclude.”
Exhibit 20 at 37. After realizing that Ms. Peterson’s diagnosis was more serious
than expected, Mr. Peterson made an appointment with Dr. Klein in February 2016
for April 5, 2016. Id. at 36-37. At this appointment, Mr. Peterson complained of
right shoulder pain and stated that he had received the flu shot in November 2015
and then experienced “steadily increasing pain” afterward. Exhibit 2 at 249. Dr.
Klein then diagnosed Mr. Peterson with rotator cuff tendinitis, and prescribed
regular physical therapy and periodic subacromial injections. Id. at 249, 253.
Following this visit, Mr. Peterson engaged in regular physical therapy
appointments. On May 27, 2016, he had a physical therapy appointment, during
which the physical therapist noted: “The patient presents to Physical Therapy
complaining of right shoulder pain. He feels this was worsened in October of last
year, when he had a flu shot. Prior to this, he did have some posterior shoulder
pain; however, was not as bad as it currently is.” Exhibit 3 at 4. Mr. Peterson
completed his final physical therapy appointment on June 21, 2016, attaining what
the physical therapist characterized as “limited progress.” Id. at 7. Finally, Mr.
Peterson visited Dr. Klein for a check-up on his right shoulder pain almost a year
later on March 21, 2017. Exhibit 2 at 372. During this appointment, Dr. Klein
noted that Mr. Peterson “did well with Therapy and really has had no pain . . . For
some reason over the past 4-6 weeks he has noticed an increase to the point where
it is difficult for him to do overhead activities, lift/push/pull, and causes him to
awake at night.” Id.


                                         9
       A preponderance of the evidence supports a finding that Mr. Peterson did
experience right shoulder pain within 48 hours of receiving the flu vaccine. He has
provided consistent evidence in the form of both medical documentation and
witness testimony, that he began experiencing pain almost immediately after
vaccination. Furthermore, the undersigned finds that the proffered explanation for
delay in seeking treatment appears reasonable under the circumstances. The
Secretary’s chief contentions in support of his position that Mr. Peterson did not
experience shoulder pain within 48 hours are: (1) that he did not seek treatment
until February 2016 (and did not see a doctor until April 2016), and (2) that he
failed to mention his shoulder pain to any of the four doctors he saw between his
vaccination in October 2015 and his appointment with Dr. Klein in April 2016.
When asked about his reason for delaying treatment, Mr. Peterson referenced his
wife’s own shoulder pain resulting from her vaccination, and stated that he was
waiting to see how her appointment with Dr. Klein and diagnosis panned out
before deciding whether to pursue his own treatment. Exhibit 20 at 37. Ms.
Peterson corroborated this testimony. Exhibit 21 at 40 (“We figured we had the
same thing, whatever it was, and he wanted to see what they said about mine.”).
Though a significant delay in seeking treatment may be persuasive in finding that a
SIRVA injury did not occur within the required time frame, reasonable
explanations proffered by the petitioner such as administrative delay in getting an
appointment and reasonable periods of time before making an appointment can
rebut this argument. See, e.g., Almanzar v. Sec’y of Health & Human Servs., No.
16-0340V, 2017 WL 8220616, at *3 (Fed. Cl. Spec. Mstr. Dec. 21, 2017) (finding
a four-month delay in getting treatment reasonable where the petitioner attempted
to make an earlier appointment but was unable to get an appointment until four
months post-vaccination). In this case, based on Mr. Peterson’s reasoning with
respect to his wife’s medical treatment and administrative delay in setting up an
appointment after attempting to do so in February 2016, the undersigned finds Mr.
Peterson’s delay in obtaining treatment reasonable under the circumstances.

       Furthermore, Mr. Peterson testified that he did not report his shoulder pain
to the four doctors he saw between his vaccination date and his April 2016
appointment with Dr. Klein essentially because he did not feel that information
about his shoulder pain was relevant to the subject of any of the appointments. As
a preliminary matter, the undersigned finds it reasonable that Mr. Peterson did not
mention his shoulder pain to the otolaryngology specialist in December 2015 or the
ophthalmologist in March 2016, given that these visits concerned problems related
to his ears and eyes—issues entirely separate from a shoulder injury. It is slightly
more significant that Mr. Peterson did not mention his shoulder pain to his
orthopedist or during the follow-up visit for his stroke. However, the undersigned
                                        10
accepts as reasonable Mr. Peterson’s explanations that he was only at the
orthopedist “for a knee injection and a consult on [his] . . . potential knee
replacement” and “was never in the habit of talking about other . . . areas,” and did
not mention the shoulder injury at the stroke follow-up visit because he and the
doctor “may have talked about [his] knee before” and that he “just wouldn’t bring
[the shoulder injury] up.” Exhibit 20 at 35-36.

       In addition to these factors, Mr. Peterson produced testimony that was then
corroborated by three other witnesses’ testimony, as well as reports by Mr.
Peterson recorded in contemporaneous medical records. Mr. Peterson testified that
he spoke with both Mr. Steinke and Mr. Alvarez about his pain “since his flu shot,”
and this was corroborated by both of their testimonies. Exhibit 22 at 17-18, 20;
exhibit 25 at 24-27. Ms. Peterson also testified to witnessing Mr. Peterson
experience pain immediately following the receipt of his flu shot, and a daily
increase in pain for days thereafter. Exhibit 21 at 36-38. This testimonial
evidence, coupled with Mr. Peterson’s reports of shoulder pain “since his flu shot”
to Dr. Klein and his physical therapist make it more likely than not that he began
experiencing right shoulder pain within 48 hours of receiving the flu shot.

       The weight of the evidence supports that Mr. Peterson started experiencing
right shoulder pain within 48 hours after his flu vaccination. However, as
previously discussed, it is more likely than not that, based on Mr. Peterson’s
medical records (particularly notations made by Dr. Burnet in August 2014 and his
physical therapist in May 2016), he experienced a history of right shoulder pain
beginning in 2014. Thus, the evidence indicates an onset date of July 14, 2014, or
approximately six weeks prior to his appointment with Dr. Burnet on August 25,
2014.

   C. Temporary Resolution of Shoulder Pain

       In response to the Secretary’s third requested finding that “petitioner’s
shoulder pain resolved from early July 2016 and did not return until approximately
mid-February 2017,” Resp’t’s Resp. at 2, the undersigned finds that, based on Mr.
Peterson’s medical records (namely the notation made by Dr. Klein during the
appointment on March 21, 2017), it is more likely than not that Mr. Peterson’s
right shoulder pain abated between approximately June 21, 2016, and 4-6 weeks
prior to the March 21, 2017 appointment (February 7-21, 2017). See exhibit 2 at
372 (noting that Mr. Peterson responded very well after attending physical therapy
in May and June 2016, and “really has had no pain” until 4-6 weeks before the
instant visit). Mr. Peterson does contest the assertion that his shoulder pain
                                         11
temporarily resolved, stating that in response to Dr. Klein’s questions about his
pain during the March 21, 2017 appointment, he “told [Dr. Klein] that the pain
ha[d] increased . . . but the pain in the shoulder had always been there.” Exhibit 20
at 47. He further testified that he believed Dr. Klein to have been “disinterested”
and “dismissive” during this appointment because he suspected Dr. Klein “knew
that there was some pending litigation.” Id. at 47-48.

       However, the weight of the evidence supports a finding that there was some
abatement in Mr. Peterson’s shoulder pain between approximately mid-June 2016
and mid-February 2017. The undersigned notes that this could be the function of a
shoulder injury that tended to ebb and flow, as opposed to remaining at a constant
level of intensity; however, it does appear from the evidence that the particular
time period in question was a period of lesser pain.

                                     Conclusion

      For the reasons explained above, the undersigned finds that:

   (1) In the April 5, 2014 haying accident, Mr. Peterson predominately injured
       his wrist. Mr. Peterson experienced some shoulder pain derived from his
       wrist injury. This injury healed by the end of May 2014;
   (2) Mr. Peterson first experienced right shoulder pain on approximately July
       14, 2014 in connection with overhead lifting;
   (3) this shoulder pain was similar to the shoulder pain Mr. Peterson later
       experienced;
   (4) Mr. Peterson received a flu vaccination on October 27, 2015;
   (5) Mr. Peterson’s shoulder pain worsened within 48 hours of receiving the flu
       vaccination; and
   (6) Mr. Peterson’s worsened shoulder pain persisted until approximately mid-
       June 2016, when it temporarily abated until mid-February 2017.

The parties are ordered to provide this ruling to any expert they retain. If the
expert’s opinion is not consistent with these findings of fact, the opinion is likely to
not be persuasive. See Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417
(1993) (holding that the special master did not abuse his discretion in refraining
from conducting a hearing when the petitioner’s expert “based his opinion on facts
not substantiated by the record.”).




                                          12
      A status conference is set for Friday, November 22, 2019, at 11:00 A.M.
Eastern Time. Mr. Peterson should be prepared to propose the next step in this
case.

      IT IS SO ORDERED.

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




                                       13
