         In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                         No. 17-1238V
                                        UNPUBLISHED


    BELINDA DAWSON-SAVARD,
                                                             Chief Special Master Corcoran
                        Petitioner,                          Filed: October 18, 2019
    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.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.


                                         FINDINGS OF FACT1

       On September 12, 2017, Belinda Dawson-Savard 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 suffers from a shoulder injury related to
vaccine administration (“SIRVA”), as a result of an influenza (“flu”) vaccine administered
on October 10, 2016. Petition at 2-3. The case was assigned to the Special Processing
Unit of the Office of Special Masters.

       For the reasons discussed below, I find the onset of Petitioner’s shoulder injury
related to vaccine administration (“SIRVA”) occurred within 48 hours of vaccination.

1 This ruling will be posted 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, I agree that the identified material
fits within this definition, I will redact such material from public access. Because this unpublished ruling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).

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).
Specifically, Petitioner suffered symptoms manifested by pain immediately upon
vaccination.


   I.        Relevant Procedural History

       In support of her claim, Petitioner filed medical records (Exs. 1-7), her own
affidavits (Ex. 8), and her workers’ compensation related medical evaluation (Ex. 9).
Deadlines for Respondent to report his position in the case were set following the October
25, 2017 initial status conference. Orders, ECF Nos. 11,17 & 19.

       On May 4, 2018, Respondent filed a status report indicating an interested in
exploring settlement. ECF No. 20. The parties remained engaged in negotiations for a
year until Petitioner reported that the parties had reached an impasse and requested a
deadline be set for Respondent’s Rule 4(c) Report. Petitioner’s Status Report, ECF No.
41. Respondent filed a Rule 4(c) Report on June 14, 2019. ECF No. 43. In his report,
Respondent argued that petitioner had not met her burden of establishing that the onset
of her alleged shoulder injury occurred within 48 hours of her October 10, 2016 flu
vaccination. Id. at 6.

       In a Scheduling Order filed June 24, 2019, former Chief Special Master Nora Beth
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 No. 44. She also
noted that because this ruling relates to a discrete factual issue, party briefs were not
necessary. Id. The parties were allowed the opportunity to submit additional evidence
relevant to onset. Id. Pursuant to the scheduling order, Petitioner subsequently submitted
additional records, a supplemental affidavit, and witness declarations. ECF Nos. 47-49
(Exs. 10-20).

          The matter is now ripe for adjudication.

   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


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§ 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.” Section 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.
       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).

    IV.     Finding of Fact

       I make the findings in this ruling after a complete review of the record, including all
medical records, affidavits, Respondent’s Rule 4 Report, and additional evidence filed.
Specifically, I base the finding on the following evidence:

            •   On October 10, 2016, Petitioner received a flu vaccine intramuscularly into
                her left shoulder. Ex. 1.

            •   Petitioner had no history of left shoulder injury prior to her October 10, 2016
                flu vaccine.3

            •   On January 24, 2017, Petitioner presented to Dr. Brett Robinson, her
                primary care physician, for left shoulder pain since the flu shot last October.
                Ex. 3 at 47. Petitioner was diagnosed with shoulder pain and an x-ray and
                ultrasound were ordered. Id. Petitioner was referred for an orthopedic
                evaluation. Id.


            •   Petitioner underwent an ultrasound on February 1, 2017, which showed no
                evidence of a tear but demonstrated subdeltoid, subacromial bursitis and
                mild hypertrophic degenerative changes of the acromioclavicular joint. Ex.
                2 at 8, 12.


3 Petitioner has a history of long QT syndrome and had a cardiac defibrillator implantation in 2003. Ex. 3
at 10. During a February 2015 cardiology appointment, Petitioner reported two episodes of nocturnal left-
sided atypical chest discomfort over the last two to three months with radiation to her “left upper arm”
unspecific to her shoulder. Id.

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          •   On February 21, 2017, Petitioner was seen by orthopedist Dr. Richard Tobin
              and reported having left shoulder pain since a flu shot on October 10, 2016.
              Ex. 2 at 8. Dr. Tobin administered a steroid injection. Id.

          •   On April 23, 2017, Petitioner went to the emergency room at Salem Hospital
              for “left arm pain” that began in October after receiving the flu shot. Ex. 4 at
              256. On exam, Petitioner exhibited left shoulder tenderness and pain with
              range of motion. Id. at 257.

          •   On April 27, 2017, Petitioner was seen by physical therapist Brenda
              Schrage for a “work injury management physical therapy evaluation.” Ex. 4
              at 280. Petitioner again reported “left shoulder pain after receiving the flu
              shot at work” with an injury date of October 10, 2016. Id.

          •   On July 5, 2017, Petitioner underwent an Independent Medical Evaluation
              with an internal medicine physician, Dr. Daniel K. Mangum. Ex. 11 at 37.
              Petitioner reported that her left shoulder injury began on October 11, 2016,
              the day after she received the flu vaccine at work. Id. at 348. Dr. Mangum
              does not attribute Petitioner’s injury to the vaccination, however. Id.

          •   On August 15, 2017, Petitioner returned to Dr. Tobin for a recheck of her
              left shoulder adhesive capsulitis, which Dr. Tobin notes “started in 10/2016.”
              Ex. 11 at 31. Dr. Tobin administered a steroid injection. Id.

          •   On October 11, 2017, Petitioner underwent an Independent Medical
              Evaluation with an orthopedic surgeon, Dr. William L. Vetter. Dr. Vetter
              attributes Petitioner’s left shoulder injury to the flu vaccine she received on
              October 10, 2016. Ex. 9, passim.

          •   Petitioner avers that she woke on October 11, 2016 with intense left
              shoulder pain. Ex. 8 at 1. Petitioner’s husband, Henri Savard, and friend,
              Anne Prantl, recall Petitioner’s shoulder pain beginning on October 11,
              2016. Exs. 18 & 20.

        The above medical entries are consistent with Petitioner’s affidavit testimony that
her left shoulder pain began at the time she received the flu vaccine on October 10, 2016.
I find that the sworn testimony of Petitioner’s witnesses to be credible and in agreement
with the contemporaneously created treatment records. In addition, although there is a
more than three-month lag between the date of vaccination and the first medical record
evidence corroborating Petitioner's onset assertions, I do not find under the
circumstances that this lag weakens the conclusion that her claimed onset is “more likely
than not” - especially given that all subsequent medical records (generated prior to the
claim's filing) are consistent with her contentions. As such, I find preponderant evidence
that the onset of Petitioner’s left shoulder injury occurred within 48 hours of her October
10, 2016 flu vaccination.

   V.     Scheduling Order

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        Given my findings of fact regarding the onset of Ms. Dawson-Savard’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 Monday, December 2,
2019, 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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