    In the United States Court of Federal Claims
                                   OFFICE OF SPECIAL MASTERS
                                           No. 17-1961V
                                          UNPUBLISHED


    MARA CORTER,                                                Chief Special Master Corcoran

                         Petitioner,                            Filed: April 21, 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)


Summer Pope Abel, 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 FACT 1

       On December 15, 2017, Mara Corter 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 September 26, 2016. Petition at 1. The case was assigned to the Special Processing
Unit of the Office of Special Masters.



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   Because this unpublished fact ruling contains a reasoned explanation for the action in this case, I am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.
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 that the onset of Petitioner’s SIRVA
occurred within 48 hours of vaccination. Specifically, Petitioner suffered symptoms
manifested by pain immediately upon vaccination.

   I.     Relevant Procedural History

        Petitioner filed most of her medical records on December 28, 2017. See Exhibits
1-5. During the January 25, 2018 initial status conference, Respondent’s counsel
identified potential missing records that could relate to the onset of Petitioner’s alleged
SIRVA. On March 12, 2018, Petitioner submitted additional medical records and an
amended statement of completion. ECF 13 and ECF 14. On September 7, 2018,
Respondent reported that he had reviewed the records filed by Petitioner and determined
that he had sufficient information to provide a recommendation. ECF 23. Respondent also
noted that he was interested in pursuing settlement negotiations. Id.

       However, after several months of negotiation, on May 14, 2019, Petitioner filed a
status report stating that “after good-faith negotiations, the parties now agree that the
Chief Special Master will need to rule on Petitioner’s entitlement to vaccine compensation,
particularly as to onset of Petitioner’s injury.” ECF 35. Respondent subsequently filed a
Rule 4(c) Report on June 27, 2019. ECF 37. On that same date, Petitioner filed additional
medical records. ECF 38.

      In a Scheduling Order filed July 17, 2019, former Chief Special Master Dorsey
(who was presiding over the case at the time) reported that she had reviewed the record
and determined that an onset hearing was not necessary. ECF 41. She also noted that
because the ruling related to a discrete factual issue, party briefs were not necessary. Id.
The parties were allowed the opportunity to submit additional evidence relevant to onset,
and Petitioner was instructed to file a supplemental affidavit. Id. Pursuant to the
scheduling order, Petitioner subsequently submitted additional records and a
supplemental affidavit on September 26 and September 27, 2019. ECF 43 and ECF 44.

        On October 18, 2019, I issued a ruling finding that the onset of Petitioner’s pain
occurred within 48 hours of vaccination. ECF 45. Respondent subsequently filed a
“Motion For Further Explanation Of Records That Are Contrary To Fact Finding.” ECF 46.
In it, Respondent argued that I had not given proper weight to Petitioner’s failure to report
shoulder pain during two phone calls to her primary care physician (PCP) and a visit to
the emergency room (ER) on September 28, 2016. Id. at 3. Respondent also stated that
the ruling failed to address the inconsistencies between Petitioner’s affidavits and her
medical records. Id. at 4. Petitioner filed a reply to Respondent’s motion on November 20,
2019. ECF 47. Therefore, this issue is ripe for adjudication.




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   II.    Question for Resolution


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

   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.
§ 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
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual

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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.” § 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

       Even in light of re-review of the existing record, as well as the particular documents
referenced in Respondent’s motion, I again conclude that the evidence preponderantly
supports the conclusion that the onset of Petitioner’s pain occurred within 48 hours of
receipt of the flu vaccine. Specifically, I base my finding on the following evidence:

          •   Ms. Corter received an influenza vaccine in her left deltoid on September
              26, 2016. Ex. 1; Ex. 2 at 2, 28.

          •   Petitioner did not have a history of left shoulder pain or injury. ECF No. 37.

          •   Petitioner reports that following the vaccination, her arm “became sore right
              away.” Ex. 6. In her supplemental affidavit, Petitioner noted that her
              shoulder “started to ache immediately with the injection itself.” Ex. 43.

          •   At a visit with her primary care physician (PCP) on November 8, 2016
              (approximately six weeks post-vaccination), Petitioner complained of left
              shoulder pain “due to recent immunization injection.” Ex. 2 at 64.

          •   On January 6, 2017 (more than three months after vaccine administration),
              Petitioner reported to her PCP she had been having local tenderness and
              persistent discomfort over the lateral left arm area “after having had flu
              vaccination.” Ex. 2 at 109, 113. Physical examination revealed tenderness
              over the lateral aspect of the left shoulder and the PCP referred Petitioner
              to physical therapy. Id.

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          •   Petitioner attended a physical therapy session on January 16, 2017, at
              which time she reported that her arm had been sore “ever since” receiving
              the flu vaccination on September 26, 2016. Ex. 3 at 3.

          •   On July 3, 2017, Petitioner presented to Dr. Michael Comstock, an
              orthopedic surgeon, at which time she reported acute discomfort in the “left
              shoulder upper arm region” after her September 26, 2016 flu vaccination.
              Ex. 5 at 4. Dr. Comstock noted that “given the time course of her pain post-
              injection, it is certainly possible that some of the injection reached the
              subacromial/subdeltoid bursa.” Id. at 8.

          •   At a physical therapy visit on October 9, 2018, Petitioner reported left
              shoulder pain “due to a flu shot 2 years ago.” Ex. 13 at 7.

          •   In an affidavit dated November 9, 2017, Petitioner reported that after her flu
              shot on September 26, 2016, “[her] arm became very sore almost right
              away.” Ex. 6 at 1.

          •   In a supplemental affidavit dated September 26, 2019, Petitioner reported
              that after her flu vaccination on September 26, 2016, her left arm and
              shoulder started to ache “immediately” and “within an hour, [it] was so sore
              that it hurt to move [her] arm.” Ex. 17 at 1. She also reported that “over the
              next couple days, the pain continued to get worse, not better.” Id.

          •   Maxwell Wlodarczak, Petitioner’s son, submitted a declaration dated
              September 26, 2019, in which he reported a telephone conversation with
              his mother where she complained pain and stiffness in her shoulder days
              after receiving a flu shot. Ex. 18 at 1.

       The above facts would seem to preponderantly support the conclusion that
Petitioner’s onset likely began around the time of vaccination, i.e., within 48 hours of
administration. However, Respondent’s motion maintains that other evidence undermines
this conclusion, because it reveals instances in which Petitioner did not complain of
shoulder pain. Specifically, as noted above, Respondent references Petitioner’s two
phone calls to her PCP, during which she spoke with a nurse, and one visit to the ER.
ECF 46. Respondent argues that because these pieces of evidence are the most
contemporaneous records to the date of vaccination, they “are particularly relevant and
should, at a minimum, be acknowledged in the Fact Findings.” Id.

       The medical records referenced by Respondent show that two days after
vaccination (September 28, 2016), Petitioner called her PCP and reported that she had
received a flu shot two days earlier and had begun experiencing abdominal cramps and
bloody diarrhea as of that morning. Ex. 2 at 53. She was advised to go to the ER, where
she was diagnosed with acute diverticulitis. Ex. 10. On October 6, 2016, Petitioner again
called her PCP and inquired as to whether she should take an iron supplement given her
vegetarianism. Ex. 2 at 58. Complaints of shoulder pain were not noted in the records
from either phone call or her ER visit. Respondent objects to the failure to address these

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records because of their alleged inconsistencies with Petitioner’s affidavits, and thus
suggests they should have been given greater weight in my earlier fact ruling.

        The Vaccine Act states that “[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.” Section 13(b)(2). Furthermore, the 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. Since medical records typically record only a fraction of all
that occurs, the fact that reference to an event is omitted from the medical records may
not be very significant. Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726, 733
(1991), aff’d, 968 F.2d 1226 (Fed. Cir. 1992), cert. denied sub nom. Murphy v. Sullivan,
113 S. Ct. 263 (1992).

        Respondent’s broad assertion that these particular records reveal a significant
inconsistency relating to the issue of onset is overstated. During both phone calls to her
PCP, Petitioner was focused on discrete issues unrelated to shoulder pain (i.e., her
gastrointestinal complaints and vitamin supplements). As noted above, medical records
typically record only a fraction of the total discussion; therefore, it would be expected that
a nursing note would usually reflect only the primary reason for Petitioner’s calls.
Similarly, it is likely that Petitioner’s hospital records focused on her diverticulitis, an
emergent issue, rather than any ancillary complaints.

        Furthermore, as discussed above, the other, subsequent medical records in the
file consistently show that Petitioner reported that her shoulder pain began immediately
after vaccination. She linked her shoulder pain to the vaccination at visits with PCP on
multiple occasions not too long after the vaccine’s administration. See, e.g., Ex 2. During
physical therapy, she reported that her left arm had been sore “ever since” the vaccination
on September 26, 2016. Ex 3. Further, at a visit with an orthopedic surgeon, Petitioner
also reported acute discomfort in her left shoulder the day of her vaccination. Ex 5.

        Petitioner’s affidavits are therefore largely consistent with the medical records
reflecting that her pain began immediately after the injection. Exs. 6 and 17. Further, the
affidavits of Petitioner’s son and sister both temporally relate the onset of Petitioner’s pain
to her flu vaccination. Exs. 18 and 19. Petitioner also addressed the two records cited by
Respondent in her supplemental affidavit. Ex. 17. She explained that she did mention the
pain in her arm to the nurses during each phone call, she was calling to discuss other
medical conditions, and she was reassured each time that pain after injection was normal
and it would go away. Id.

       It is within my discretion to determine whether to afford greater weight to medical
records or to other evidence, and I am obligated to fully consider all relevant and reliable
evidence in the record. La Londe, 110 Fed. Cl. at 204; Burns v. Sec’y of Health & Human
Servs., 3 F.3d 415, 417 (Fed. Cir. 1993). In this case, Petitioner consistently related the
onset of her shoulder pain contemporaneously with her vaccination during in-person visits
with physicians and physical therapists. These reports are also consistent with
Petitioner’s affidavits where she clearly links the vaccination with the immediate onset of
her shoulder pain. Accordingly, I do not find that the records emphasized by Respondent
substantially cast my prior ruling in doubt.

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        In so finding, I credit the substantive nature of Respondent’s objections in light of
the items of evidence referenced in his motion. SPU SIRVA cases frequently present
records that do not memorialize a complaint of shoulder pain at the immediate time of the
vaccination, or even contemporaneously close thereafter, leading to onset disputes. In a
case like this one, where the post-vaccination medical history of somewhat stuttering, and
where the first formal record of vaccination-related pain was made several weeks to a
month after receipt of the vaccine, it is reasonable for Respondent to question the strength
of the onset showing – and this is only amplified by the intervening, closer-in-time records
that do not corroborate Petitioner’s assertions regarding the commencement of her pain.

       Not every case in which a Petitioner fails to seek immediate treatment for SIRVA
pain, but instead relies on complaints long after the fact, should be deemed to satisfy this
Table element. However, in this case Petitioner was able to offer credible explanations
for contrary records, and enough other corroborative evidence, to meet this requirement.
At most, the case was close on this issue – and the law instructs me in close cases to
give the benefit of the doubt, from an evidentiary standard, to Petitioner. See Knudsen v.
Sec’y of Health & Human Servs., 35 F.3d 543 (Fed. Cir. 1994); Althen v. Sec’y of Health
& Human Servs., 418 F.3d 1274 (Fed. Cir. 2005).

   V.     Scheduling Order

      Given my findings of fact regarding the onset of Petitioner’s pain, Respondent
should evaluate and provide his current position regarding the merits of petitioner’s case.
      Accordingly, Respondent shall file, by no later than Friday, June 5, 2020, an
amended Rule 4 Report reflecting Respondent’s position in light of the above fact
finding.



IT IS SO ORDERED.

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




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