Proctor v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-468V
UNPUBLISHED
RICHARD PROCTOR, Chief Special Master Corcoran
Petitioner, Filed: December 3, 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)
Michael Patrick Milmoe, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.
FINDINGS OF FACT 1
On March 30, 2018, Richard Proctor 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 he developed a shoulder injury related to vaccine
administration (“SIRVA”) as a result of receiving an influenza (“flu”) vaccine on December
5, 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 SIRVA occurred
within 48 hours of his vaccination.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am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 decision 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).
I. Relevant Procedural History
Following the initial status conference held on June 8, 2018, Respondent was
ordered to file a status report indicating how he intends to proceed in this case. ECF No.
9. On April 19, 2019, Respondent filed a status report confirming that he intended to
defend this case, and requesting a deadline for the filing of his Rule 4(c) Report. ECF
No. 22.
Respondent filed his Rule 4(c) Report (“Res. Report”) on June 4, 2019. ECF No.
23. In it, Respondent argued that Petitioner has not established that he suffered a SIRVA
because he did not establish onset of his shoulder pain within 48 hours of vaccination.
Res. Report at 5. Specifically, Respondent noted that Petitioner first presented for care
on January 9, 2017, approximately five weeks after his vaccination. Id. at 4. Respondent
also noted that Mr. Proctor next reported shoulder pain in July of 2017, roughly six months
later. Id. During that six-month period, Petitioner had eight different medical visits, none
of which reference shoulder pain. Id.
On June 5, 2017, Petitioner filed a response to the Rule 4(c) Report requesting
that I issue a ruling on the record regarding onset after the parties fully briefed the issue.
ECF No. 24. On June 27, 2019, a scheduling order was issued setting deadlines for any
additional evidence and a motion for a ruling on the record. ECF No. 26.
On August 5, 2019, Petitioner filed an affidavit from Julie Somers, his longer-time
girlfriend. ECF No. 27-1. The parties subsequently filed their relevant briefs. ECF No.
28-30.
II. Issue
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(a) XIV.B. (2017) (influenza vaccination); 42 C.F.R. §
100.3(c)(10)(ii) (required onset for pain listed in the QAI).
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 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.” Vaccine Act § 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.
2
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. Vaccine
Act § 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).
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 v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 204 (2013) (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). Further, affidavits submitted by and on behalf of a
petitioner a can work in tandem with medical records to provide preponderant evidence.
Tenneson v. Sec’y of Health and Human Servs., No. 16-1664V, 2018 WL 3083140, at *6
(Fed. Cl. Mar. 30, 2018), review denied, 142 Fed. Cl. 329 (2019).
IV. Finding of Fact
For the reasons discussed below, I find that the onset of Mr. Proctor’s left shoulder
pain occurred within 48 hours of vaccination. I make this finding after a complete review
of the record including all medical records, affidavits, Respondent’s Rule 4(c) Report, and
the additional evidence filed. Specifically, I base the finding on the following evidence:
• On December 5, 2016, Mr. Proctor received an intramuscular injection of
the flu vaccine in his left deltoid. Petitioner’s Exhibit (“Pet. Ex.”) 1 at 1-2.
• On January 9, 2017, Petitioner presented to Dr. John C. Arrabal, his primary
care physician. Pet. Ex. 2 at 19. The chief complaint is listed as “Flu -Labs”.
Id. At that time, Petitioner reported left trapezius pain after his flu vaccine.
Id. 3
• Six months later, on July 25, 2017, Petitioner presented to Dr. Arrabal again
for a sick visit and left shoulder pain. Pet. Ex. 2 at 4. Petitioner stated that
he “had a shot at VA 12/16 and after that has been having pain left
shoulder.” Id. On examination, Petitioner was observed to have left-sided
3
The original record includes handwritten notes, of which portions are difficult to read. A typed version of
the January 9, 2017 records was filed on March 8, 2019. Pet. Ex. 8 at 2. The typed version states that
Petitioner reported “Pain in [l]eft arm after flu shot”. Id.
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neck pain and posterior left shoulder pain increasing with abduction. Id. at
5. Petitioner was assessed with a probable rotator cuff tear. Id.
• Petitioner underwent a left shoulder MRI on August 21, 2017. Pet. Ex. 4 at
177. The MRI showed fluid in the subacromial-subdeltoid bursa.
• Mr. Proctor was seen multiple times by Dr. Frederick Lohr for shoulder pain
between September 20, 2017 and October 17, 2018. Pet. Ex. 3 at 8 (visit
on September 20, 2017), at 7 (visit on October 11, 2017), at 5 (visit on
November 1, 2017), at 4 (visit on November 29, 2017); Pet. Ex. 7 at 1-3.
Upon examination, Petitioner’s shoulder was painful with motion, showed
positive impingement tests, and rotator cuff weakness. Id. Petitioner was
continually assessed with a non-traumatic partial tear of his left rotator cuff.
Id.
• On April 13, 2018, Petitioner filed an affidavit stating that he received a flu
vaccination on December 5, 2016. Pet. Ex. 5 at 1. Petitioner further stated
that “the next morning, my left shoulder was in severe pain and I could
hardly move my arm.” Id. Despite the pain, Petitioner reported that he
waited until January to seek medical care for his arm because he “was
already on the schedule for another visit with [his] doctor…so through the
holidays [he] just took Tylenol to manage the pain.” Id.
• On August 5, 2019, Petitioner filed an affidavit from Julie Somers, his long-
term girlfriend. Pet. Ex. 10. Ms. Somers recalled that on December 6, 2016
(one day after Petitioner’s flu vaccination) he complained that his arm was
in terrible pain when he woke up. Id. at 1.
I find the sworn testimony of Petitioner’s witnesses to be credible and in agreement
with the contemporaneously created treatment records.
Respondent asserts that Petitioner has not established the onset of his left
shoulder injury was within forty-eight hours of his flu vaccination. Response to Petitioner’s
Motion for Ruling on the Record (“Res. Mot.”) at 5. Respondent further notes that the
medical records are not specific regarding the onset of Petitioner’s pain, and merely
indicate it began “after” he received the flu shot. Id. In addition, Respondent argues that
the affidavits filed by Petitioner should be afforded little weight because they do not
provide sufficient foundation to explain how the declarants “vividly recollect [P]etitioner’s
alleged left shoulder pain that reportedly occurred a few years earlier”. Id. 4
However, as described above, multiple medical records temporally associate the
onset of Petitioner’s pain with the December 2016 flu vaccination. Pet. Ex. 2 at 4, 19.
Further, the affidavits submitted by and on behalf of Petitioner work in tandem to
4
Respondent also asserts that the veracity and substance surrounding the declarant’s recollection would
be typically evaluated on cross-examination, and without Petitioner’s testimony the Chief Special Master
is unable to make determinations regarding credibility. Res. Mot. at 5.
4
corroborate Petitioner’s allegations that his shoulder pain began within forty-eight hours
of receiving his flu vaccination. And although there is a lengthy gap in Petitioner’s
treatment, contemporaneous records from the start, and end, of this gap are consistent
with his contentions.
Based on all of the records discussed above, I find preponderant evidence that the
onset of Petitioner’s left shoulder pain occurred within 48 hours of the December 5, 2016
flu vaccination.
V. Scheduling Order
Respondent shall file a status report, by no later than Friday, December 27, 2019,
indicating whether he is interested in exploring an informal resolution of Petitioner’s claim.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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