RULING ON FACTS and RULE 5 SCHEDULING ORDER1

NORA BETH DORSEY, Chief Special Master.

On September 28, 2015, Steven Zebofsky ("petitioner") 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 suffered right shoulder injuries caused-in-fact by the influenza ("flu") vaccination he received on October 18, 2014. Petition at 1, ¶¶ 3, 11. The case was assigned to the Special Processing Unit ("SPU") of the Office of Special Masters.

I. Summary of Dispute

The vaccination record establishes that petitioner received two vaccinations in his injured arm on October 18, 2014. See Exhibit 7, filed Mar. 18, 2016 (ECF No. 19). One vaccination, the influenza vaccination which is alleged as causal in this case, is covered by the Vaccine Program. See 42 C.F.R. § 100.3(a) XIV (2015). The other vaccination petitioner received, the adult pneumococcal vaccination, is not covered by the Vaccine Program.3

From May 20 through the end of September 2016, the parties engaged in litigative risk settlement discussions. On September 30, 2014, petitioner filed a status report indicating the parties were unable to reach a settlement in this case. Status Report at 1 (ECF No. 31). Petitioner explained that the parties' disagreement stems from the fact that petitioner received both the influenza and adult pneumococcal vaccinations in his injured shoulder. Id. Petitioner reported that "[t]he parties now believe further settlement negotiations would be futile . . . [and] causation and/or other issues will ultimately need to be decided by the Chief Special Master." Id.

The OSM staff attorney managing this SPU case held several telephonic status conferences with the parties. See Minute Entries, dated Oct. 4 and 25, 2016. A Rule 5 status conference was scheduled with the undersigned for December 13, 2016.4 On November 16, 2016, petitioner filed a motion for subpoena authority to require the production of the Immunization Policy and Procedures Records for Walgreens Pharmacy, the drugstore where petitioner received his vaccinations. The undersigned denied petitioner's request5 but indicated she would discuss the issue further with the parties at the Rule 5 status conference.

During that call, the undersigned noted that, even if produced by Walgreens, the documentation sought would describe only the procedures which should be followed and not what actually occurred in this case. Thus, she explained it would have little probative value.

More relevant is the information contained in the contemporaneously created medical records which have been filed in this case. Referencing those records, the undersigned presented her tentative findings and conclusions, describing in detail the evidence upon which she relied. She informed the parties there was sufficient evidence in the medical records to conclude that petitioner's right shoulder injuries resulted from the influenza vaccination he received rather than the adult pneumococcal vaccination.

After presenting this conclusion, the undersigned, having thoroughly reviewed and considered the evidence before her, expressed her willingness to issue a factual finding. Both parties, through counsel, agreed and thus, the undersigned now issues this fact ruling.

II. Fact Ruling and Supporting Evidence

The undersigned determines there is preponderant evidence for a finding that petitioner's right shoulder injuries resulted from the influenza vaccination administered in his right arm on October 18, 2014 and not the adult pneumococcal vaccination administered the same day in the same arm. The undersigned bases her finding upon the following evidence:

The undersigned recognizes there are times in the medical records when petitioner referenced both vaccinations. See Exhibit 2 at 23; Exhibit 4 at 23. And petitioner admits that he presently "cannot recall which injection [he] received first or where the injections were given in [his] right shoulder." See Petitioner's Affidavit, filed as Exhibit 8 on Dec. 13, 2016 (ECF No. 35). Nevertheless, there are instances closer in time to the vaccinations, when petitioner clearly states that the vaccination which was given too high and which caused the swelling and pain he experienced was the influenza vaccination.

As the Federal Circuit has noted, it is appropriate for a special master to give greater weight to evidence contained in medical records created closer in time to the vaccination, even if the information is provided as part of a medical history. Cucuras v. Sec'y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (medical records are generally trustworthy evidence). Moreover, close calls should be resolved in favor of petitioners. Althen v. Sec'y of Health & Human Servs., 418 F.3d 1274, 1280 (Fed. Cir. 2005).

IV. Rule 5 Scheduling Order

At the conclusion of the conference, the undersigned indicated she would issue her fact ruling and would require the parties to file a status report within 30 days thereafter, updating her on the status of their settlement discussions. Respondent's counsel ask if, given her other deadlines and the holiday season, the parties could have 45 days to file their status report. Petitioner's counsel indicate petitioner had no objection to the 45 days requested by respondent.

The parties shall file a joint status report updating the undersigned on the status of any settlement negotiations by no later than Tuesday, January 31, 2017.

IT IS SO ORDERED.