NORA BETH DORSEY, Chief Special Master.
On June 4, 2018, petitioner filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.,
For the reasons discussed below, the undersigned finds the onset of petitioner's right shoulder injury occurred within 48 hours of vaccination and that petitioner's November 3, 2016 flu vaccine was administered into her right arm.
The petition in this case was filed on June 4, 2018 (ECF No. 1). On July 6, 2018, petitioner filed medical records, an affidavit, and a Statement of Completion (ECF Nos. 7-8). On September 13, 2018, petitioner filed a supplemental affidavit and amended Statement of Completion (ECF Nos. 10-11). On October 31, 2018, petitioner filed additional medical records (ECF No. 12).
On April 15, 2019, respondent filed a Rule 4(c) report asserting that compensation was not appropriate in this case (ECF No. 19). Respondent contested entitlement for three reasons. First, respondent asserted that the record did not establish that petitioner suffered a shoulder injury related to vaccine administration ("SIRVA") within 48 hours of vaccination because she did not complain of shoulder pain to a medical provider until November 21, 2016, 18 days after vaccination.
Second, respondent asserted that petitioner's injury was in her right arm but the vaccine administration record reflected that the vaccine was administered in her left arm, and thus she had pain outside of the arm in which the vaccine was given. Third, respondent noted that two of petitioner's physicians suggested that her symptoms stemmed from her cervical spine and that petitioner complained of radicular symptoms that were not limited to her shoulder, i.e., pain running down her arm into her hand and fingers. Thus, respondent argued that because there was "possible cervical spine involvement in her symptomatology," petitioner had not established a Table SIRVA. This ruling addresses only the first and second issues raised by respondent.
On May 28, 2019, the undersigned issued an order allowing the parties to file additional evidence concerning the site of vaccination and onset by June 27, 2019 (ECF No. 21). The undersigned stated that after that date, she intended to issue a fact ruling concerning these issues. The undersigned further stated that if the fact ruling found that the site of vaccination was petitioner's right arm and that onset was within 48 hours of vaccination, petitioner would then be directed to file an expert report.
On June 18, 2019, petitioner filed Petitioner's Exhibit ("Pet. Ex.") 12 (orthopedic records), Pet. Ex. 13 (a VAERS, or Vaccine Adverse Event Reporting System, filing), Pet. Ex.14 (second supplemental affidavit of petitioner), and Pet. Ex.15 (affidavit of Gregg Bleier, petitioner's spouse). No other records were filed. The issues of (1) the onset of petitioner's shoulder pain and (2) the site of petitioner's November 3, 2016 flu vaccination are now ripe for resolution.
At issue are (1) 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),
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).
After a complete review of the record to include all medical records, affidavits, respondent's Rule 4 report, and additional evidence filed, the undersigned finds that a preponderance of the evidence demonstrates that the onset of petitioner's shoulder pain occurred within 48 hours of her November 3, 2016 flu vaccination. Specifically, the undersigned bases the finding on the following evidence:
The above evidence shows that petitioner suffered pain immediately following the vaccination that continued while driving home from the appointment and persisted the evening of the vaccination even after taking pain relief medication. As such, the undersigned finds that a preponderance of the evidence demonstrates that the onset of petitioner's pain occurred within 48 hours after vaccine administration.
On November 3, 2016, petitioner reported to Foothills Medical Group, Salamanca Health Center, for a flu vaccine. Pet. Ex. 4 at 55, Pet. Ex. 1 at 1. The record of the visit that day indicates that the flu vaccine was administered in petitioner's left arm by LPN Judith Hoag. Id. In addition, petitioner's vaccine administration record in the records of Foothills Medical Group summarizing her vaccines from 2012-2016 also indicates that the November 3, 2016 flu vaccine was administered in petitioner's left arm. Pet. Ex. 3 at 71.
On November 21, 2016, 18 days after vaccination, petitioner was seen at Foothills Medical Group complaining of a sore arm. The medical record indicates that the reason for the appointment was, "C/o [complains of] rt. [right] arm pain deltoid/bicipt since the flu shot 11/3/16." Pet. Ex. 4 at 56. The history indicates that petitioner "states that she did received a flu shot in that arm and had a significant reaction after. She had pain all the way to her fingertips. She states it has improved somewhat but is still very uncomfortable and she points to her biceps tendon." Id. On examination, she was found to have "marked tenderness to palpation over her right biceps tendon." Pet. Ex. 4 at 57.
On December 7, 2016, she was seen at Foothills "for right arm pain, has had pain since her flu shot over a month ago." Pet. Ex. 4 at 58. Similarly, at her January 16, 2017 appointment with the same medical group, she reported that "on 11/03/2016 [she had] a flu shot done in her right upper arm." Pet. Ex. 3 at 3.
On February 6, 2017, petitioner was seen by Dr. Lisa Daye or Excelsior Orthopaedics, LLP, and reported right shoulder pain that she related to her flu shot in early November. Pet. Ex. 2 at 1.
On February 14, 2018, petitioner was seen by Dr. Donald Deforno and reported that she had been experiencing "right shoulder pain for about a year and a half after receiving the flu shot in right arm." Pet. Ex. 6 at 5.
In Exhibit 8, petitioner's supplemental affidavit, petitioner states, "[t]he vaccine I received on November 3, 2016 was given to me in my right shoulder." Pet. Ex. 8 at ¶ 1. Petitioner states that she remembers "the specific shoulder being my right shoulder because that shoulder began to hurt the day I was given the shot as I told my primary care physician on November 21, 2016." Id. at ¶ 2. Petitioner further confirms that she "did not otherwise injure [her] right arm or shoulder between when I received the vaccine and when I went to my primary care physician and told them about it." Id. at ¶ 3. In Exhibit 14, petitioner's second supplemental affidavit, petitioner explains that she is "right hand dominant and following the right shoulder injury, [she] was almost completely unable to use [her] right arm at all."
In Exhibit 15, petitioner's husband avers that petitioner called him "complaining of very bad pain in her right arm. She told me she had received a flu shot and it hurt immediately when the shot was administered and got much worse on her drive home." Pet. Ex. 15 at ¶ 3.
Based on the evidence of record, the undersigned finds that the preponderance of the evidence demonstrates that petitioner's November 3, 2016 flu vaccine was administered in her right arm. Although the vaccine administration record indicates that the vaccine was administered in her left arm, numerous other medical records consistently documented that petitioner's vaccine was administered in her right arm.
In particular, the undersigned notes that petitioner's appointments on November 21, 2016, December 7, 2016, and January 16, 2017 were with the same medical practice, Foothills Medical Group, where petitioner's November 3, 2016 vaccine was administered. Thus, the health care providers who evaluated petitioner on these dates presumably had access to her vaccine administration record but recorded in their medical records that the flu vaccine was administered in her right arm and did not question the vaccination site. This supports the medical record and affidavit evidence documenting that the vaccine was administered in her right arm.
In light of all of the above and after a review of the record as a whole, the undersigned finds (1) that the onset of petitioner's shoulder pain occurred within 48 hours of her November 3, 2016 flu vaccination, and (2) that the November 3, 2016 flu vaccine was administered into petitioner's right arm.
In the May 28, 2019 scheduling order, the undersigned indicated that if a finding was made that onset was within 48 hours of vaccination and that the vaccine was administered into petitioner's right arm, the undersigned would direct petitioner to file an expert report.
