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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0017V
UNPUBLISHED
ANTHONY LAWLER, Chief Special Master Corcoran
Petitioner, Filed: June 24, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset; Tetanus
HUMAN SERVICES, Diphtheria acellular Pertussis (Tdap)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
John Robert Howie, Jr., Howie Law, PC, Dallas, TX, for petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.
FINDINGS OF FACT1
On January 3, 2019, Anthony Lawler 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 a Table claim that he suffered a left shoulder injury
related to vaccine administration (“SIRVA”) after receiving the tetanus, diphtheria,
acellular pertussis (“Tdap”) vaccine on July 12, 2017. Petition at 1, ¶¶ 1, 20. The case
was assigned to the Special Processing Unit of the Office of Special Masters.
1
Because this unpublished fact ruling contains a reasoned explanation for the action in this case, I am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 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 references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
For the reasons discussed below, I find the onset of Petitioner’s shoulder pain
occurred within 48 hours of vaccination. Specifically, Petitioner suffered left shoulder pain
immediately upon vaccination.
I. Relevant Procedural History
Shortly after filing his petition, Anthony Lawler filed the required medical records.
Exhibits 1-11, ECF Nos. 6-7; Statement of Completion, ECF No. 8. Following the initial
status conference, Respondent was ordered to provide his tentative position on the merits
of Petitioner’s claim. Order, issued May 17, 2019, ECF No. 11.
On January 24, 2020, Respondent indicated he opposed compensation in this
case. Status Report, ECF No. 17. In his Rule 4(c) report, he argues that Petitioner has
failed to establish that the onset of his left shoulder pain occurred within 48 hours of
vaccination and that there appears to be an alternative cause for Petitioner’s symptoms.
ECF No. 18. Regarding onset, Respondent mentions two instances in the medical records
when Petitioner provided imprecise information regarding the onset of his pain and one
instance when he mistakenly indicates his vaccination occurred on July 1, rather than
July 12, 2017. Id. at 5-6.
Thereafter, the parties were informed that I intended to address the factual issue
of onset. Informal Remark, dated Mar. 27, 2020. During the subsequent week, Petitioner
filed documentation disclosing his work schedule from July 1 through September 30,
20173 and updated medical records from physical therapy (“PT”) he attended
approximately one year after vaccination. Exhibit 12, Mar. 30, 2020, ECF No. 19; Exhibit
13, filed Apr. 2, 2020, ECF No. 20. A briefing schedule was set. Non-pdf Order, issued
Apr. 8, 2020.
Both parties filed their briefs on May 26, 2020. Respondent’s brief reiterates the
arguments set forth in his Rule 4(c) report. ECF No. 21. Petitioner addresses these
arguments in his brief, asserting that “Respondent has cherry-picked three statements
which are taken out of context and which fail to rebut the entirety of the evidence.”
Petitioner’s Brief Regarding Onset at 5, ECF No. 22. Petitioner discusses the additional
information contained in these records. Id. at 7-9. He also maintains that multiple physical
examinations performed by different treating physicians support his description of a
painful bump at the vaccination’s injection site. Id. at 9-10. While acknowledging that he
may have occasionally been a poor historian, Petitioner argues that he “consistently
related his left shoulder symptoms to his Tdap vaccination.” Id. at 10.
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Petitioner is in the merchant marines. E.g., Petition at 3. These records show he was on the vessel Jane
A. Bouchard from July 19, 2017 through August 9, 2017 and September 9 through 30, 2017. Exhibit 12.
2
Petitioner makes these same arguments in his response filed on June 10, 2020.
Petitioner’s Response Brief Regarding Onset (“Pet. Response”), ECF No. 23. In both
filings, he also disputes Respondent’s statement of the facts in the case.4
The matter is now ripe for adjudication.
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) I.C & II.C. (2017) (Tdap 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 Vaccine Act
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.
§ 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, at *19.
4
For example, Petitioner maintains he was not seen by his cardiologist on August 2, 2017, approximately
three weeks after vaccination and two weeks before he was seen at urgent care for his left shoulder pain
as Respondent asserts. Pet. Response at 1 n.1. A careful examination of the record cited by Respondent
shows this entry is part of a progress note compiled on August 2, 2017, but was copied from the record of
a March 28, 2017 visit. Compare Exhibit 6 at 161 (entry cited by Respondent) with id. at 146 (history in
medical record from March 23, 2017 visit). Additionally, the work schedule provided by Petitioner shows he
was at sea on August 2, 2017. Exhibit 12 at 2.
3
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 professional’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
F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d
1570, 1575 (Fed. Cir. 1993).
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.” § 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.
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 § 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 finding regarding onset after a complete review of the record to include
all medical records, affidavits, Respondent’s Rule 4(c) report, additional evidence, and
briefing by the parties. Specifically, I base the finding on the following evidence:
• The vaccine record establishes that Anthony Lawler was administered a
Tdap vaccine intramuscularly in his left deltoid on July 12, 2017. Exhibit 2.
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• The documentation provided by Petitioner indicates that he was at sea,
aboard the Jane A. Bouchard, from July 17, 2017 (five days after
vaccination) until August 9, 2017. Exhibit 12 at 1-2.
• Eight days after disembarking, on August 17, 2017, Petitioner visited an
urgent care facility complaining of a lump in his upper left arm, intermittent,
sharp, and stabbing pain with movement, and discomfort with range of
motion past 90 degrees. Exhibit 9 at 12-15. Petitioner reported that his
symptoms began one month prior and that his lump has been evident for
about a month. Id. at 13, 15. Denying any injury or trauma such as pulling
or pushing which would have caused his injury, Petitioner attributed his
lump and left shoulder pain to the tetanus booster he received on July 17,
2017. Id.
• When Petitioner was seen by the orthopedic surgeon on September 8,
2017, he reported that his symptoms began in early July, and that he “felt
[his injury] may be tetanus shot related.” Exhibit 10 at 10. He added that
“[s]ince that time, his symptoms have progressed and are now present on
a daily basis.” Id. The orthopedic surgeon noted Petitioner “has an
associated lump or deformity in the anterior aspect of the deltoid area.” Id.
• At his third appointment with the orthopedic surgeon on November 6, 2017,
Petitioner again linked his injury to the Tdap vaccine he received in July.
Exhibit 10 at 65. This record notes that Petitioner “is very adamant that his
shoulder pain is most likely the result of an improperly performed tetanus
injection.” Id.
• When seen for a prostrate exam on February 14, 2018, Petitioner related
“having received a tetanus shot in his left shoulder that caused him severe
pain and bursitis which necessitated a cortisone shot.” Exhibit 5 at 9. He
expressed concern regarding future vaccinations. Id.
• During his initial PT evaluation on June 4, 2018, Petitioner again attributed
his left shoulder pain to the “tetanus shot he received about 6 months or a
year ago in the left side.” Exhibit 13 at 7. According to Petitioner, “[r]ight
after he had a tetanus shot, he had some pain in the arm which he expected,
but then the pain got worse and he reported feeling a sharp pain in the front
of the shoulder” with certain movement. Id.
• The physical therapist observed some tenderness in the left deltoid region
and a bump on Petitioner’s left deltoid. Exhibit 13 at 8. He described the
bump as feeling fluid filled. Petitioner reported that the bump “has been
there since the tetanus shot.” Id.
The above medical entries show that Petitioner consistently connected his left
shoulder injury to the Tdap vaccine he received on July 12, 2017, reporting pain and a
lump since that time. Although not always precise when describing the onset of his pain
5
or timeframe since vaccination, he clearly expressed his belief that it was caused by the
tetanus shot he received.
Petitioner provided better detail regarding the onset of his pain during his initial PT
evaluation. He described immediate pain which increased thereafter. Additionally,
multiple physicians and his physical therapist observed the lump on Petitioner’s left
deltoid, his tenderness, and his pain with movement.
Respondent correctly notes that when first seen by the orthopedic surgeon on
September 8, 2017, Petitioner wrote on the intake form that his problem began on July 1,
2017 (which if true would predate vaccination). Exhibit 10 at 3. However, in this same
record, it is noted that he verbally informed the surgeon that he believed his injury was
linked to the Tdap vaccine he had received. Id. at 10. Petitioner most likely provided the
July 1 date because he could not recall the exact date of his vaccination. In the history he
provided verbally, he described the onset of his symptoms as “in early July.” Id. I thus do
not find that this specification of July 1st for onset undermines Petitioner’s arguments
about a post-vaccination, fairly immediate onset.
Respondent’s other two critiques are similarly unpersuasive. Respondent stresses
that during Petitioner’s initial visit to urgent care on August 17, 2017, he described his
pain as beginning one month earlier even though his vaccination was actually five weeks
earlier on July 12, 2017. Exhibit 9 at 13. When first evaluated by the physical therapist on
June 4, 2018, almost eleven months after vaccination, he indicated he had received the
tetanus shot six months to one year ago. Exhibit 13 at 7. In both instances, Petitioner is
simply being imprecise when providing these time frames. Both records contain other
entries showing Petitioner clearly tied the onset of his pain and lump to the Tdap vaccine
he received. For example, in the same June 4, 2018 PT record, Petitioner unequivocally
states that he experienced pain right after receiving the tetanus shot and that the lump
existed since vaccination. Id. at 7-8.
Accordingly, I find there is preponderant evidence to establish the onset of
Petitioner’s left shoulder pain occurred immediately upon vaccination. Petitioner has
satisfied the requirement for a Table SIRVA, that the onset of her shoulder pain began
within 48 hours of vaccination.
V. Scheduling Order
Given my finding of fact regarding the onset of Petitioner’s pain, Respondent
should evaluate and provide his current position regarding the merits of Petitioner’s case.
Respondent shall file a status report indicating how he intends to proceed in
this case by no later than Friday, July 24, 2020. At a minimum, the status report shall
indicate whether he is willing to engage in tentative discussions regarding settlement or
proffer, is opposed to negotiating at this time, or that the Secretary has not yet determined
his position. In the event Respondent wishes to file a Rule 4(c) report, he may propose
a date for filing it, but shall indicate his position on entering into negotiations regardless
of whether he wishes to file a Rule 4(c) report.
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IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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