          In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 15-1477
                                      Filed: June 28, 2016

****************************
DIANE C. PERL,                         *
                                       *
                  Petitioner,          *      Finding of Fact; Influenza (“Flu”)
v.                                     *      Vaccine; Shoulder Injury Related to
                                       *      Vaccine Administration (“SIRVA”);
SECRETARY OF HEALTH                    *      Adhesive Capsulitis; Location of
AND HUMAN SERVICES,                    *      Vaccination; Special Processing Unit
                                       *      (“SPU”)
                  Respondent.          *
                                       *
****************************
Matthew F. Belanger, Faraci Lange, LLP, Rochester, NY, for petitioner.
Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for respondent.

           ORDER AND RULING ON FACTS1– SPECIAL PROCESSING UNIT

Dorsey, Chief Special Master:

       On December 7, 2015, Diane C. Perl (“petitioner” or “Ms. Perl”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq., (the “Vaccine Act” or “Program”). Petitioner alleges that she
suffered an injury to her left shoulder, including adhesive capsulitis and Shoulder Injury
Related to Vaccine Administration (“SIRVA”), as a result of an influenza (“flu”) vaccine
she received on October 9, 2013. Petition at 1. The case was assigned to the Special
Processing Unit (“SPU”).

      Prompting this fact ruling is a status report filed by respondent on May 25, 2016,
requesting a written determination of “whether petitioner has proven by a
preponderance of the evidence that a covered vaccine was administered to her left
arm.” After a review of the record as a whole, and for the reasons set forth below, the
undersigned finds that there is preponderant evidence to find that Ms. Perl received her
October 9, 2013 flu vaccination (a covered vaccine) in her left shoulder.


1
  Because this unpublished order and ruling contains a reasoned explanation for the action in this case,
the undersigned intends 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). 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.

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    I.    Procedural History

       In the petition filed on December 7, 2015, Ms. Perl asserts that she received a flu
vaccine in her left arm on October 9, 2013, at the office of her primary care physician,
Hamburg Family Medicine. Petition at 2, ¶6. She also filed seven medical record
exhibits on December 8, 2015. Petitioner’s exhibit two, page one, documents that Ms.
Perl received both a pneumococcal vaccine and an influenza vaccine on October 9,
2013, although the record is silent as to the specific location of the vaccines.
Petitioner’s Exhibit (“Pet. Ex.”) 2 at 1. Also on December 8, 2015, petitioner filed a
Statement of Completion signifying that she believed that all relevant medical records
have been filed.

        An initial status conference was held on January 21, 2106, during which
respondent requested additional time to review Ms. Perl’s records in order to make a
recommendation in this case. On April 8, 2016, respondent filed a status report stating
that petitioner received two vaccines on October 9, 2013, but that the medical records
do not identify in which arm petitioner received each of these vaccines, nor do they
identify the type of pneumococcal vaccine Ms. Perl received. Respondent requested
that petitioner file additional records to clarify these issues. On April 15, 016, an order
was issued for petitioner to file any additional information to support her claim that she
received the flu vaccine in her left arm and clarifying which pneumococcal vaccine she
received. See Order, dated 4/15/2016.

      To provide additional clarification, Ms. Perl filed a supplemental affidavit on April
25, 2016, stating that she went to her primary care physician specifically to receive a flu
vaccine. Pet. Ex. 8 at 1. During this visit, Ms. Perl states that her physician also
recommended that she receive a pneumococcal vaccine, and she agreed. Id. at 1, ¶2.
Ms. Perl states that a nurse administered the flu vaccine in her left shoulder and the
pneumococcal vaccine in her right shoulder. Id. at 2, ¶4. Ms. Perl states that her left
shoulder “was noticeably sore right after the vaccination but within hours, [her] pain was
a 10/10 and was so intense that it interfered with [her] ability to sleep and function
normally.” Id.

        Ms. Perl also filed the information sheets for the influenza and pneumococcal
vaccines that she received from her primary care physician (Pet. Exs. 9-10) as well as
all the records from her primary care physician, Hamburg Family Medicine (Pet. Ex. 11).
The information sheet petitioner filed was for the polysaccharide version of the
pneumococcal vaccine.2

      On May 25, 2015, respondent filed a status report requesting “that the Chief
Special Master issue a decision on whether petitioner has proven by a preponderance
2
 Only pneumococcal conjugate vaccines are covered by the Vaccine Act. The
pneumococcal polysaccharide vaccine is not. See Morrison v. Sec’y of Health &
Human Servs., No. 04-1683V, 2005 WL 2008245, at *1 (Fed. Cl. Spec. Mstr. July 26,
2005) (describing how and when pneumococcal conjugate vaccines were added to the
Vaccine Table).

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of the evidence that a covered vaccine was administered in her left arm.” Status
Report, filed 5/25/2016. This ruling addresses respondent’s request.

   II.    Factual History

       On October 9, 2013, Ms. Perl presented to her primary care physician for a
routine complete physical examination. She also requested an influenza (“flu”) vaccine.
Pet. Ex. 8 at 1. On the advice and recommendation of her primary care physician, Ms.
Perl received the pneumococcal vaccine in addition to the flu vaccine. Id., Pet. Ex. 2 at
12. Petitioner states that a nurse administered the flu vaccine in her left shoulder and
the pneumococcal vaccine in her right shoulder. Id. at 2 ¶4. Ms. Perl filed the
information sheets for the vaccines that she received during this visit as exhibits 9 and
10. Exhibit 9 is an information sheet for the influenza vaccine and exhibit 10 is the
information for a pneumococcal polysaccharide vaccine.

         Ms. Perl states her left shoulder “was noticeably sore right after the vaccination
but within hours, [her] pain was 10/10 and was so intense that it interfered with [her]
ability to sleep and function normally.” Pet. Ex. 8 at 2, ¶4. She states that in addition to
the sharp burning pain, she also experienced a tightening of the muscles of her left
shoulder with numbness and tingling extending into her left hand and fingers. Id.

        Ms. Perl presented to her primary care physician on November 20, 2013, after
her left shoulder pain persisted for approximately one month. Petition at 3, ¶8, Pet. Ex.
1 at 2, ¶5. Ms. Perl reported to her physician that her pain began after receiving her flu
vaccine one month ago, but that her pain was slowly improving. Pet. Ex. 3 at 39. In her
affidavit, Ms. Perl states she told her physician that she had never had a problem with
her left shoulder until her October 9, 2013 flu shot, and since that time, she experienced
intense pain, weakness and a limited range of motion in her left shoulder. Pet. Ex. 1 at
2. Ms. Perl was instructed by her physician to perform range of motion (“ROM”)
exercises at home and to return to the office in two to three weeks if her shoulder pain
did not improve.

        Ms. Perl returned to her primary care physician on December 30, 2013. Pet. Ex.
3 at 35. She complained of continuing pain in her left shoulder that extended into her
left bicep area. Id. Ms. Perl again reported that the pain in her left shoulder had been
occurring for the past two to three months ever since she received her flu vaccine. Id.
She stated that she had been performing her ROM exercises with no relief. Id. Her
physician ordered an x-ray and an MRI. Id. at 36.

       The same day, December 30, 2013, petitioner underwent an x-ray of her left
shoulder which revealed bony osteopenia with degenerative changes in her left
shoulder. Pet. Ex. 3 at 34. A January 10, 2014 MRI of Ms. Perl’s left shoulder revealed
a “partial tear of the distal supraspinatus tendon… likely full thickness… otherwise
unremarkable MRI of the left shoulder.” Id. at 31. As a result of the MRI findings, Ms.
Perl was referred to Excelsior Orthopedics for a consultation. Pet. Ex. 1 at 2, ¶8.



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        On March 17, 2014, Ms. Perl presented to Excelsior Orthopedics with a chief
complaint of left shoulder pain. Pet. Ex. 4 at 1. Ms. Perl reported that her left shoulder
pain “started October 9, 2013 from her flu shot.” Id. After a physical exam and a review
of the x-ray and MRI reports, Ms. Perl was assessed with adhesive capsulitis and
sprain/strain of her left rotator cuff. Id. at 3. The records note that Ms. Perl was to have
her left shoulder injected with cortisone, to undergo physical therapy, and to return in
two to three months for a follow up. Id. The next day, on March 18, 2014, Ms. Perl
returned to her primary care physician and received a cortisone injection in her left
shoulder. Pet. Ex. 3 at 29.

       On March 20, 2014, Ms. Perl underwent a diagnostic real-time musculoskeletal
ultrasound for her left shoulder. Pet. Ex. 4 at 14. The results were consistent with her
January 10, 2014 MRI. The report also noted the restricted range of motion “in the area
of the coracohumeral ligament suggestive of elements of adhesive capsulitis.” Id.

       Ms. Perl began physical therapy at Sports Focus Therapy on April 1, 2014. Pet.
Ex. 5. She described her injury as left shoulder pain resulting from a flu shot she
received on October 9, 2013. Id. at 5. Ms. Perl continued with physical therapy until
September 2014, when she was released because she had reached maximum
therapeutic benefits. Id. at 2.

        Ms. Perl continued to be seen at Excelsior Orthopedics for continued pain in her
left shoulder. During a July 7, 2014 examination, it was noted that the range of motion
in her left shoulder was limited and she received another steroid injection. Pet. Ex. 4 at
15-16.

       Ms. Perl continued with her home exercises and returned to Excelsior
Orthopedics on April 27, 2015, reporting that she was continuing to have pain in her left
shoulder and that it prevented her from performing simple tasks such as dressing
herself. Pet Ex. 4 at 24. She also reported that overuse caused her aching pain into
the muscles of her left arm. Id. A new MRI of her left shoulder was ordered. Id. at 25.

        Petitioner underwent a second MRI on May 5, 2015. Pet. Ex. 4 at 27. The MRI
showed a “[s]imilar appearing” full thickness tear of the supraspinatus tendon in addition
to the infraspinatus muscle showing volume loss. Id. On June 22, 2015, Ms. Perl
returned to Excelsior to review the MRI results with her physician. Id. at 28. She
informed her physician that she was not interested in surgery and wanted to explore the
option of a platelet rich plasma (“PRP”) injection. Id. at 29. The last records filed are
dated August 24, 2015, where Ms. Perl states that she would like to proceed with the
PRP injection. Id. at 33.




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   III.   Discussion

          a. Applicable Legal Standard.

       A petitioner must prove, by a preponderance of the evidence, the factual
circumstances surrounding her claim. 42 U.S.C. § 300aa–13(a)(1)(A). To resolve
factual issues, the special master must weigh the evidence presented, which may
include contemporaneous medical records and testimony. See Burns v. Sec'y of Health
& Human Servs., 3 F.3d 415, 417 (Fed.Cir.1993) (explaining that a special master must
decide what weight to give evidence including oral testimony and contemporaneous
medical records). Contemporaneous medical records are presumed to be accurate.
See Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
To overcome the presumptive accuracy of medical records testimony, a petitioner may
present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v.
Sec'y of Health & Human Servs., No. 11–685, 2013 WL 1880825, at *3 (Fed. Cl. Spec.
Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).)

          b. Evaluation of the Evidence

        Here, the undersigned finds that there is preponderant evidence to support Ms.
Perl’s claim that the flu vaccine she received on October 9, 2013, was administered to
her left shoulder.

        Although the immunization record is silent regarding which vaccine was
administered to petitioner’s arm, all of the other evidence in the record consistently
references that a flu vaccine was administered to Ms. Perl’s left arm, just as she
alleges. The undersigned observes that from petitioner’s initial treatment forward, she
consistently reported to health care providers that her left shoulder problems began
after her October 9, 2013 flu vaccination. Indeed, no record makes any reference to the
contrary. Ms. Perl was evaluated multiple times for an injury to her left shoulder and
there is objective evidence that Ms. Perl, in fact, had an injury to her left shoulder that
was not present prior to her October 9, 2013 flu vaccination. The undersigned accepts
petitioner’s affidavit to be a credible account of the facts surrounding her vaccination,
having no reason to doubt the truthfulness of the assertions contained therein.

   IV.    Conclusion

       Thus, the undersigned finds, based on the record as a whole, that
petitioner received a flu vaccine in her left shoulder on October 9, 2013, as
alleged in the petition.

       The parties are encouraged to consider an informal resolution of this claim.
Petitioner shall file a joint status report by Friday, July 29, 2016, updating the
court on the status of the parties’ settlement discussions.



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IT IS SO ORDERED.
                        s/Nora Beth Dorsey
                        Nora Beth Dorsey
                        Chief Special Master




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