Joyce v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1882V
UNPUBLISHED
KELLY JOYCE, Chief Special Master Corcoran
Petitioner, Filed: December 14, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Site of Vaccination
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.
Nancy Tinch, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT 1
On December 16, 2020, Kelly Joyce 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 left shoulder injury related to vaccine
administration (“SIRVA”), a defined Table injury, after receiving an influenza (“flu”)
vaccine on November 8, 2019. Petition at 1, ¶¶ 4, 38-39. Petitioner further alleges that
her SIRVA was caused-in-fact by the flu vaccine she received. Id. at ¶¶ 38, 40.
Acknowledging that the vaccine record does not indicate the site of administration,
Petitioner nevertheless maintains there is preponderant evidence to establish the vaccine
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Because this unpublished Fact Ruling contains a reasoned explanation f or the action in this case, I am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 ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
was administered in her left shoulder as alleged. Id. at ¶ 4. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
For the reasons discussed below, I find the flu vaccine was most likely
administered in Petitioner’s left shoulder, as alleged, and that onset of Petitioner’s pain
occurred within 48 hours of vaccination.
I. Relevant Procedural History
The day after she filed the Petition, Ms. Joyce filed an affidavit and most of the
medical records required under the Vaccine Act. Exhibits 1-16, ECF No. 6; see Section
11(c). Over the subsequent seven-month period, she filed additional prior and updated
medical records. Exhibits 17-24, ECF Nos. 11-14, 16-17. Petitioner also filed a status
report citing entries in her medical records which, she argues, show she received the
November 8, 2019 vaccine in her left shoulder as alleged. Status Report, filed July 19,
2021, ECF No. 18.
On September 21, 2021, Respondent filed a status report indicating that “[a]t this
time, Respondent’s counsel does not wish to file briefing regarding the site of
vaccination.” Status Report, ECF No. 21. In October and November 2021, Petitioner filed
additional medical records including a copy of her worker’s compensation settlement
agreement. Exhibits 25-30, ECF Nos. 22, 24-25. Petitioner also filed a status report
reiterating her request for a fact ruling regarding the site of vaccination and disagreeing
with Respondent’s assertion that I should delay this factual determination until the HHS
review is completed. ECF No. 23.
Given the current backlog of vaccine cases awaiting the HHS review which has
existed for several years, I have consistently encouraged the parties to vaccine injury
cases to identify and address factual issues which do not require medical expertise, and
thus can be decided prior to the HHS review. The factual issue regarding vaccine
administration situs in this case fits squarely in that category. For the sake of judicial
efficiency, I will simultaneously address the issue of the onset of Petitioner’s pain. These
issues are now ripe for adjudication.
II. Issue
At issue is whether (a) Petitioner received the vaccination alleged as causal in his
injured left arm, and (b) Petitioner’s first symptom or manifestation of onset after vaccine
administration (specifically pain) occurred within 48 hours as required in the Vaccine
Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA. 42
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C.F.R. § 100.3(a) XIV.B. (2017) (Table entry for SIRVA following the 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 Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Section 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. Section 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).
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, 2005 WL 6117475, 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 prof essional’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). The credibility of the individual offering
such testimony must also be determined. Andreu v. Sec’y of Health & Human Servs., 569
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F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d
1570, 1575 (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, 110 Fed. Cl. at 204 (citing Section 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).
IV. Finding of Fact
I make the following findings regarding site of vaccination and onset after a
complete review of the record, including medical records, affidavits, and other additional
evidence filed showing:
• The vaccine record indicates Petitioner received a flu vaccine on November
8, 2019, at her placement of employment - Tufts Medical Center. Exhibit 2
at 4. The method and site of vaccination are not indicated. Id. Email
exchanges between Petitioner’s counsel and personnel at Tufts Medical
Center indicate the site of vaccination is not recorded in the electronic
database. Id. at 1-3.
• In her affidavit, Petitioner alleged that she received the flu vaccine in her
left, non-dominant shoulder. Exhibit 3 at ¶ 3. She added that she “always
received [her] annual flu shot in [her] non-dominant left arm, and . . .
specifically recall[ed] that [she] received the November 8, 2019 flu shot in
[her] left shoulder.” Id. Petitioner described pain which began a few hours
after vaccination and increased to a severe level which prevented her from
performing her duties as a nurse. Id. at ¶ 5.
• Six days post-vaccination, on the morning of November 14, 2019, Petitioner
sought medical care from a provider at Tufts Medical Center, Dr. John
Doyle. Exhibit 4 at 12. The description she provided at this visit – of left
shoulder pain which began several hours after vaccination and which
gradually increased until severe – matches the assertions in Petitioner’s
affidavit. Petitioner was referred to the orthopedic clinic and excused from
work until re-evaluated. Id.
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• At her orthopedic appointment that same day, Petitioner complained of “left
shoulder pain after receiving a flu shot on 11/8/19.” Exhibit 4 at 38
(November 14, 2019 orthopedic visit). She indicated that she returned to
work post-vaccination and did not recall any complications until the next
day. Id. Upon examination, the orthopedist, Dr. Charles Cassidy observed
no swelling, warmth, or tenderness upon palpitation. He diagnosed
Petitioner with biceps tendonitis, “likely due to inflammation around her
biceps tendon.” Id. at 40.
• The next day on November 15, 2019, Petitioner completed an Employee
Incident Report regarding a flu shot injury to her left arm. Exhibit 4 at 117.
• On November 18, 2019, Petitioner returned for a follow-up appointment with
Dr. Doyle. Exhibit 4 at 13. Relaying Dr. Cassidy’s opinion – that there was
not an infectious process occurring and that the pain was due to biceps
tendonitis, Petitioner described sharp pain with certain movements. Dr.
Doyle excused Petitioner from work for the rest of the week. Id.
• When seen again at the orthopedic clinic on November 25, 2019, Petitioner
again reported severe pain which began the day after her November 8,
2019 vaccination. Exhibit 5 at 14. Dr. Cassidy diagnosed Petitioner with
adhesive capsulitis and discussed treatment options. Petitioner opted for
physical therapy (“PT”). Id. at 16.
• Following this November 25, 2019 orthopedic visit, Petitioner provided a
telephone update to Dr. Doyle. Exhibit 4 at 13. She indicated she would
contact the local PT office and would provide another update on December
2, 2018. In this record, it was noted that Petitioner had declined a steroid
injection. Id.
• When seen again by Dr. Doyle at 8:10AM on December 2, 2019, Petitioner
expressed an interest in receiving a steroid injection from Dr. Cassidy, who
she believed was seeing patients that day. Exhibit 4 at 14.
• Later that day, Dr. Cassidy provided the requested steroid injection. Exhibit
4 at 32. He noted that Petitioner “continues to have vague shoulder
symptoms following a flu vaccination . . . [but] symptoms [which were] not
consistent with any one diagnosis.” Id. He assessed Petitioner as having
“[s]ubacromial impingement of [the] left shoulder.” Id.
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• During her first PT session from 1:00PM until 2:00PM on December 2, 2019,
Petitioner again reported left shoulder pain and frozen shoulder due to the
administration of the flu vaccine on November 8, 2019. Exhibit 6 at 8.
Attending a total of four PT sessions in December 2019 and failing to return
thereafter, Petitioner was discharged on April 6, 2020. Exhibit 6 at 12-19.
• When treated by Dr. Doyle on December 9, 2019, Petitioner reported slight
improvement following the cortisone injection and PT. Exhibit 4 at 14. She
was excused from work for the remainder of the week. Id.
• Seen again by Dr. Cassidy on January 6, 2020, it was noted that Petitioner’s
injury was most consistent with adhesive capsulitis, but that she was
recovering faster than expected given the nature of her disease. Exhibit 4
at 28.
• Petitioner provided another telephone update to Dr. Doyle on January 14,
2020, indicating she continued to have left shoulder pain and difficulties with
certain movements. Exhibit 4 at 16. She was instructed to continue PT and
remain at home. Id.
• At her next appointment with Dr. Doyle on January 28, 2020, Petitioner
continued to report left shoulder pain and difficulties performing certain
tasks. Exhibit 4 at 17.
• On February 7, 2020, Petitioner underwent an MRI. Exhibit 4 at 23. She
again reported “left shoulder pain post-vaccination.” Id. The MRI revealed
“[f]ull-thickness tear of the anterior supraspinatus . . . with moderate
underlying tendinosis, . . . [p]robable focal tear of the anterior labrum, . . .
[m]arked fluid within the subacromial subdeltoid bursa.” Id.
• Petitioner has provided the documentation connected to her worker’s
compensation claim which includes an April 13, 2020 email from Dr. Todd
M. O’Brien and an August 6, 2020 letter from Dr. David C. Morley, Jr.,
communicating both physician’s opinions that Petitioner’s left shoulder
injury was due to the flu vaccine she received on November 8, 2019. Exhibit
15 at 1-2 (Dr. O’Brien’s email); Exhibit 11 at 4-6 (Dr. O’Brien’s letter).
In every post-vaccination record containing a medical history, from the time she
first sought treatment on November 14, 2019 (only six days post-vaccination), Petitioner
consistently described left shoulder pain as beginning a few hours post-vaccination,
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increasing thereafter to a severe level which interfered with her ability to work by the next
day. Without fail, she attributed her injury to the flu vaccine she received on November 8,
2019. Petitioner provided extremely consistent accounts of her injury and the onset of her
pain. While these entries were based upon information provided by Petitioner, they still
should be afforded greater weight than more current representations, as they were
uttered contemporaneously with Petitioner’s injury for the purposes of obtaining medical
care.
The Federal Circuit has stated that “[m]edical records, in general, warrant
consideration as trustworthy evidence . . . [as they] contain information supplied to or by
health professionals to facilitate diagnosis and treatment of medical conditions.” Cucuras,
993 F.2d at 1528 (emphasis added). Thus, the Circuit has instructed that greater weight
should be accorded to this information even when the information is provided by
Petitioner.3
The vaccine record clearly supports Petitioner’s claims of receiving the flu vaccine
in her left arm on November 8, 2019, and experiencing left shoulder pain within 48 hours
thereafter. There is nothing in the vaccine record or medical records in this case to
indicate administration was in Petitioner’s other arm (right) or that the onset of Petitioner’s
pain was not within 48 hours as Petitioner consistently reported. And the fact that situs is
not itself corroborated by a medical record does not rebut the combination of Petitioner’s
contemporaneous reports to treaters of a left-shoulder vaccination and her own witness
statements. Thus, I find there is preponderant evidence to establish the vaccination
alleged as causal in this case was administered to Petitioner in the left deltoid, and that
onset of Petitioner’s pain occurred within 48 hours of vaccination.
V. Scheduling Order
Based on recent data, I expect the HHS review to be completed in this case in
February 2022. In the meantime, it is appropriate for Petitioner to forward a demand and
supporting documentation to Respondent prior to the HHS review.Thus, Petitioner should
finalize her demand which she may forward to Respondent, along with her supporting
documentation, at any time.
3
Additionally, Petitioner has provided evidence, related to Petitioner’s worker’s compensation claim, that
two different physicians concluded her injury was due to the f lu vaccine she received on November 8, 2019.
It would be illogical f or these physicians to have reached this conclusion absent a belief that Petitioner
received the vaccine in question in her lef t, injured arm (although that belief does not independently
establish situs).
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Petitioner shall file a status report indicating the date by which she conveyed
or expects to convey her demand and supporting documentation to Respondent
by no later than Friday, January 14, 2022.
Respondent shall file a status report indicating how he intends to proceed
by no later than Tuesday, February 15, 2022.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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