Juno v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0643V
UNPUBLISHED
DEBRA JUNO, Chief Special Master Corcoran
Petitioner, Filed: September 13, 2021
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)
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On May 7, 2018, Debra Juno 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered to her
right shoulder on October 10, 2016. Petition at 1. 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
Because this unpublished fact ruling contains a reasoned explanation for the action in this case, I am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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
I. Relevant Procedural History
Ms. Juno filed her petition for compensation along with medical record exhibits on
May 7, 2018. (ECF No. 1). After reviewing the records, Respondent filed a status report
stating that he was amenable to engaging in settlement discussions, and requested that
Petitioner provide a demand. (ECF No. 14). The parties were unable to resolve the case
after more than a year of settlement discussions, however, so I ordered Respondent to
file the Rule 4(c) Report to identify the area of disagreement. (ECF Nos. 36, 37).
Respondent did so on February 2, 2020, maintaining therein that the case was not
appropriate for compensation under the terms of the Vaccine Act. Respondent’s Report
at 1 (ECF No. 38). Respondent argued that “petitioner’s records do not establish that her
shoulder pain began within 48 hours of vaccination, and when she first sought treatment
three weeks after vaccination, she actually reported bilateral shoulder pain.” Id. at 6.
Respondent further argued that Petitioner does not allege in the alternative that her
shoulder pain was caused-in-fact by the vaccination, and thus, cannot prove a causal link
between the alleged injuries and a covered vaccine. Id. at 7-8.
Petitioner filed a motion for a fact ruling (“Br.”) to resolve the onset issue. (ECF No.
43). Respondent filed his response (“Opp.”) on July 13, 2020. (ECF No. 44). Petitioner
filed a reply (“Reply”) on July 27, 2020. (ECF. No. 45). The matter is now ripe for
adjudication.
II. Issue
At issue is whether the onset of Petitioner’s right shoulder pain occurred within 48
hours after vaccination, as required by the Vaccine Injury Table. 42 C.F.R. §§ 100.3(a)
XIV.B. (2017) (influenza vaccination) and 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
§ 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).
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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). However, the Federal Circuit recently
“reject[ed] as incorrect the presumption that medical records are accurate and complete
as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997
F.3d 1378, 1383 (Fed. Cir. 2021). 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
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
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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. Parties’ Positions
a. Petitioner’s Arguments
Petitioner asserts that her right shoulder pain started within 48 hours of
vaccination. Br. at 6-7. She notes that there are no complaints of shoulder pain prior to
vaccination, and that in all her post-injury medical records she continuously related her
right shoulder pain back to the flu vaccination. Id. at 7. In particular, just three weeks after
vaccination, Ms. Juno specifically complained to her primary care physician about the
pain in her shoulder “since” receiving the vaccinations on October 10, 2016. Id. And in all
subsequent records that mention onset, Petitioner continued to relate her right shoulder
pain back to her flu vaccination. Id. Petitioner also argues that the medical records are
supported by her sworn testimony and the testimony of her fact witnesses. Id. at 8.
b. Respondent’s Arguments
Respondent, on the other hand, argues that the 48-hour onset is only described in
Petitioner’s own statement and not corroborated by any objective evidence. Opp. at 4.
Respondent states that Petitioner “cannot overcome inconsistencies or discrepancies in
the medical records by simply filing Affidavits that state her preferred onset date.” Id. at
8. Respondent notes that in Petitioner’s initial visit to her PCP, she complained of bilateral
arm pain, and because the record does not specifically state “right” shoulder when
referring to the arm pain, such an inference cannot be made. Respondent also argues
that the term “worsening” can also relate to an onset of shoulder pain prior to vaccination.
Id. Finally, Respondent states that the Dearborn disability documents filed by Petitioner
which report an onset of shoulder symptoms within 48-hours of vaccination do not
substantiate her claim. Therefore, Petitioner’s SIRVA claim should be denied.
V. Finding of Fact
I make the following findings after a complete review of the record to include all
medical records, affidavits, Respondent’s Rule 4(c) report, the parties’ briefing and any
additional evidence filed. Specifically, I base the findings on the following evidence:
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 Ms. Juno’s past medical history is significant for hypothyroidism, restless leg
syndrome, gastric reflux, and a hiatal hernia. Petitioner’s Exhibit (“Ex.”) 2 at 2.
She also reported a remote history of elbow surgery. Ex. 4 at 36.
 Approximately 10 days prior to receiving the vaccination at issue, on September
27, 2016, Ms. Juno was seen by her primary care provider (“PCP”), Dr. Elham
Siddiqui, for an annual exam. She reported “no current complaints,” and her
exam was normal. There is no history of shoulder complaints noted. Ex. 2 at 22-
24.
 Ms. Juno was 60 years old when she was administered a flu vaccine in her right
shoulder on October 10, 2016, by a nurse at her PCP’s office. Ex. 1 at 1; Ex. 7 at
8. Ms. Juno also received the Pneumovax 23 vaccine in her left deltoid during
this visit. Id.
 In her affidavit, Ms. Juno recalled that “[i]mmediately following the influenza
vaccination, I began to develop pain in my right shoulder.” Ex. 10 at 1, ¶2. She
stated that the nurse administering the vaccination was standing, while Ms. Juno
was seated. Ex. 11 at 1, ¶3.
 Ms. Juno stated in her affidavit that she was advised by her PCP’s office to wait a
week to see if her shoulder pain subsided. Id. at ¶ 6. When the pain did not
subside, she contacted her PCP again and made an appointment for November
2, 2016. Id. at ¶7.
 On November 2, 2016, 23 days after vaccination, Ms. Juno presented to Dr.
Siddiqui complaining of “worsening arm pain since getting flu and pneumonia
vaccines.” Ex. 2 at 36. Dr. Siddiqui diagnosed her with bilateral arm pain and
myalgia. She was prescribed a steroid taper. Id. at 38.
 By December 14, 2016, Ms. Juno was still experiencing pain in her right
shoulder. She returned to her PCP stating that she “still [had] difficulty raising her
arm, can’t take shirt off”, “aching, can’t reach behind,” “very sore to touch.” Ms.
Juno stated that she had tried steroid and anti-inflammatory medications to no
avail. Ex. 2 at 32. On exam, she exhibited decreased range of motion of the right
shoulder, tenderness, pain and decreased strength. Id. at 34. Dr. Siddiqui
ordered an MRI. Id.
 On December 21, 2016, Ms. Juno underwent an MRI of her right shoulder which
demonstrated a “full thickness supraspinatus tear, partial bursal sided
infraspinatus tear, and moderate osteoarthritis of the acromioclavicular joint.” Ex.
2 at 64.
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 On January 11, 2017, Ms. Juno was examined by orthopedic surgeon, Dr. John
McPhilemy, who noted that Ms. Juno “began to experience right shoulder
symptoms following a flu shot she received on or about 10/10/2016. Symptoms
have persisted over the past three months…” Ex. 5 at 6-7. He recommended
arthroscopic surgery to repair the tears, followed by a course of physical therapy.
Id. at 7.
 On January 20, 2017, Ms. Juno underwent a right shoulder arthroscopic shoulder
repair. Ex. 3 at 9. The postoperative diagnoses included: (1) rotator cuff tear,
right shoulder, (2) degenerative glenoid labrum tear, and (3) early osteoarthritis,
right glenohumeral joint. Id.
 Five days later, on January 25, 2017, Ms. Juno was examined by Dr. McPhilemy
who noted that Ms. Juno’s incisions were healing and there were no signs of
infection or deep vein thrombosis. Ex. 5 at 5. She was to be reexamined in one
week.
 Ms. Juno had several post-operative appointments with Dr. McPhilemy on
February 1, 8, and 27, 2017. See generally Ex. 3, 5.
 On March 27, 2017, nine weeks after surgery, Dr. McPhilemy noted that Ms.
Juno’s pain was “slowly improving” although she was not yet pain free. Ex. 3 at 3.
He recommended that Ms. Juno work with a physical therapist to improve her
range of motion and to prevent adhesive capsulitis. Id.
 By April 17, 2017, Dr. McPhilemy noted that Ms. Juno’s range of motion “is
improved to about 90% of normal, pain is improved and strength is about 85% of
normal.” Ex. 3 at 2. Dr. McPhilemy recommended that Ms. Juno continue with
physical therapy for another two weeks. Id.
 At her May 3, 2017 appointment with Dr. McPhilemy, Ms. Juno’s right shoulder
had improved but she was not pain free. Ex. 3 at 1. Dr. McPhilemy confirmed that
Ms. Juno still had some restriction in her right shoulder and “uncomfortable
internal rotation”, but all other motion was “pretty close to normal.” Strength was
90% of normal. Id.
 Ms. Juno attended post-surgical physical therapy from March 27, 2017 to May
31, 2017. See generally Exs. 3, 4. She was discharged from physical therapy on
May 31, 2017, to a home exercise program. Ex. 3 at 5.
 Ms. Juno filed a short-term disability claim with Dearborn National Disability on
January 25, 2017. Ex. 12 at 10-11. Petitioner listed her injury as “torn rotator cuff”
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with symptoms first manifesting on October 11, 2016, one day after vaccination.
Id.
The record as summarized above preponderantly supports the conclusion that
Petitioner experienced right shoulder pain immediately after administration of the flu
vaccine on October 10, 2016. Despite Respondent’s reluctance to admit that Petitioner
reported her right shoulder pain just three weeks after vaccination, the records make clear
that Petitioner’s right shoulder pain began immediately after vaccination and within the 48
hour onset period to prove a SIRVA claim.
Thus, just 23 days after vaccination, Ms. Juno had an appointment with her PCP
to specifically complain of her shoulder pain. In her affidavit, she states that she called
her PCP’s office more than once to complain of shoulder pain, although the phone records
have not been filed into the record. But clearly Ms. Juno made at least one phone call to
set the November 2, 2017 appointment – and it was within a month of the vaccine’s
administration.
In addition, the record from that first appointment with Dr. Siddiqui states that Ms.
Juno complained of “worsening arm pain since getting flu and pneumonia vaccines.” Ex.
2 at 36 (emphasis added). This descriptor “worsening” indicates that Ms. Juno’s bilateral
shoulder pain started prior to the November 2, 2017 visit, and provides further evidence
that her bilateral arm pain, which includes the right shoulder, was “worsening” “since”
receiving the vaccinations – supporting the contention that the pain itself began at or close
to the time of vaccination. Respondent’s view that the term “bilateral” discounts the
possibility of a Table onset is not persuasive, since Dr. Siddiqui clearly stated that Ms.
Juno’s arm pain stemmed from both the flu and pneumonia vaccines (and both are
grounds for a Table SIRVA claim). Equally unpersuasive is Respondent’s argument that
bilateral pain means Petitioner could not have experienced pain in her right shoulder after
receiving the flu vaccine. The medical record allows the conclusion that her left arm pain
from the Pneumovax vaccine resolved (consistent with the vast majority of vaccinations),
while the right arm pain lingered, and therefore it is the actionable vaccination.
The other factor that weighs in my finding of the 48-hour onset of right shoulder
pain is the absence of any statement or record that places the onset of Ms. Juno’s right
shoulder pain outside the 48-hour window. While Respondent correctly notes in a footnote
that Dr. McPhilemy’s record memorialized a three-month history of arm pain - which if
correct would place the onset of right shoulder pain prior to vaccination (see Opp. at 2,
fn. 2) - it is clear that Dr. McPhilemy was generalizing the onset period, rather than
precisely calculating the period for legal purposes (as is done in Vaccine Program
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cases).3 Dr. McPhilemy otherwise clearly sets the onset of Petitioner’s right shoulder pain
as starting on 10/10/2016, and taken as a whole, this is the most reasonable interpretation
of his entire statement.
Respondent further argues that Petitioner cannot overcome inconsistencies or
discrepancies in the medical records simply by filing affidavits that gainsay or modify what
the records set forth. But the Federal Circuit has expressly recognized that witness
testimony on issues pertaining to fact matters like symptoms onset can be proven through
this kind of evidence (even if they must be weighed against the records, which also have
evidentiary significance). Kirby, 997 F.3d at 1383. Respondent has not otherwise
identified any other inconsistencies or discrepancies in the medical records. All other
references to onset clearly relate Petitioner’s right shoulder pain as occurring immediately
after vaccination.
Finally, Respondent questions the weight to be given affidavits filed by Petitioner
in support of her claim of onset, noting in particular that Ms. Juno’s second and third
affidavits were written over three years after her October 10, 2016 flu vaccination, “and
petitioner did not explain why she did not provide any of that information to her treating
doctor’s when she first sought treatment.” Opp. at 3. While I accept that the date of some
contentions or witness statements can be relevant to the weight they should be given, I
also note that such matters are a “two-way street.” Thus, as Petitioner aptly notes in her
Reply brief, Respondent filed his Rule 4(c) report challenging the issue of onset on
February 6, 2020 - a total of 640 days (21 months) after the Petition was filed. It was not
obvious that onset would be challenged in this case, especially since Petitioner reported
her shoulder injury less than 30 days after vaccination, and given that the parties did seek
to settle the matter for some time.
Weighing the evidence on the preponderance standard, I overall find that Petitioner
has met her burden. One of the most significant pieces of evidence is the fact that Ms.
Juno was seen by her primary care physician for her right shoulder pain just 23 days after
she was administered the flu vaccine. There are also many references in the medical
records (as listed above) that squarely place the onset of Ms. Juno’s shoulder pain in the
48-hour window. Despite Respondent’s seeming view that only evidence of onset in
records prepared within the 48-hour period set by the Table is credible, the Act says
otherwise. § 13(b)(2). Taken as a whole, I find the sworn testimony of Ms. Juno to be
credible and in agreement with most of the contemporaneously created treatment
records.
3
The entire statement by Dr. McPhilemy states that Ms. Juno “began to experience right shoulder pain
symptoms following a flu shot she received on or about 10/10/2016. Symptoms have persisted over the
past three months.” Ex. 5 at 6-7.
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Accordingly, I find the onset of Petitioner’s pain within 48 hours of vaccination.
VI. Scheduling Order
Given my finding of fact regarding the onset of Ms. Juno’s right shoulder 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, October 15,
2021, an amended Rule 4(c) 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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