UNPUBLISHED

FINDINGS OF FACT1

NORA BETH DORSEY, Chief Special Master.

On October 25, 2017, 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 she suffered a Shoulder Injury Related to Vaccine Administration ("SIRVA") as a result of her November 9, 2016 influenza ("flu") vaccination. Petition at 1-3. The case was assigned to the Special Processing Unit of the Office of Special Masters.

For the reasons discussed below, the undersigned finds the onset of petitioner's SIRVA occurred within 48 hours of vaccination. Specifically, petitioner suffered pain within 48 hours of vaccination.

I. Relevant Procedural History

In support of her claim, petitioner filed medical records (Exs. 1-6) and her own affidavit (Exs. 7) between November 6, 2016 and December 21, 2017. ECF Nos. 7, 10. On July 11, 2018, respondent filed a status report indicating that he was interested in pursuing informal settlements discussions with petitioner and requesting respondent's Rule 4(c) Report deadline remain suspended. ECF No. 22. The parties engaged in informal settlement discussions between July 11, 2018 and December 14, 2018. See ECF Nos. 22-28. On December 14, 2018, the parties' counsel indicated they had reached an impasse in their settlement discussions, and a deadline was set for the filing of respondent's Rule 4(c) Report. ECF No. 30.

Respondent filed his Rule 4(c) report on March 29, 2019. ECF No. 32. In this report, respondent argues that petitioner has not met her burden of establishing that the onset of her shoulder injury occurred within 48 hours of her November 9, 2016 flu vaccination. Id. at 6.

Thereafter, the undersigned reviewed the evidence and determined that a fact hearing or briefing would not be necessary. ECF No. 33. A deadline was set for for the filing of a supplemental affidavit regarding onset by petitioner, and for the filing of any additional evidence by the parties addressing onset. Id. In response, petitioner filed her own supplemental affidavit on May 30, 2019. Ex. 9, ECF No. 37. No additional filings were made by either party. 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 § 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.

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).

IV. Finding of Fact

The undersigned makes the finding after a complete review of the record to include all medical records, affidavits, respondent's Rule 4 report, and additional evidence filed. Specifically, the undersigned bases the finding on the following evidence:

Petitioner provided the following sworn affidavit testimony as to the onset of her left shoulder pain: "[w]hen I received the vaccine I immediately felt pain in my left shoulder. I experienced constant pain and throbbing which grew worse as the day went on." Ex. 9 at ¶ 2. Petitioner further averred that the pain continued thereafter and she "had a very difficult time sleeping the night of November 9, 2016, because I couldn't find a comfortable, pain-free position to rest in and I would constantly roll onto my sore shoulder." Ex. 9 at ¶ 3. Petitioner testified that her pain continued to progress the next day despite taking over the counter pain relievers. Ex. 9 at ¶4. Petitioner avers that her "shoulder pain immediately started causing me problems with my daily activities" ex. 9 at ¶ 5, but she "tried to `tough out' my shoulder pain" until her next scheduled primary care appointment on November 30, 2016, as obtaining an appointment is difficult, ex. 9 at ¶6.

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 November 9, 2016. The undersigned finds the sworn testimony of petitioner to be credible and in agreement with the contemporaneously created treatment records. As such, the undersigned finds preponderant evidence that the onset of petitioner's left shoulder injury occurred within 48 hours of her November 9, 2016 flu vaccination.

V. Scheduling Order

Respondent shall file a status report by Friday, September 13, 2019, indicating whether he is interested in further exploring an informal resolution of petitioner's case.

IT IS SO ORDERED.