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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-544V
UNPUBLISHED
LORI CELUCH, Chief Special Master Corcoran
Petitioner, Filed: January 27, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset; Influenza
HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA)
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for respondent.
FINDINGS OF FACT1
On April 16, 2018, Lori Celuch 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”) as a result of an influenza (“flu”) vaccine administered on
October 17, 2016. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
For the reasons discussed below, I find that the onset of Petitioner’s left shoulder
pain occurred within 48 hours of vaccination.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am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 Decision 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
I. Relevant Procedural History
Following the initial status conference held on June 7, 2018, Respondent was
ordered to file a status report indicating how he intended to proceed in this case. ECF
No. 8. On March 4, 2019, Respondent filed a status report stating that he would be willing
to engage in discussions regarding a potential settlement of this case. ECF No. 19. The
parties were thereafter ordered to file recurring status reports regarding the progress of
their settlement discussions. ECF Nos. 20, 22, 24, 26, 29.
On August 22, 2019, Petitioner filed a status report indicating that “[t]he parties
have explored informal resolution and have reached an impasse.” ECF No. 30. At a
subsequent status conference held on September 26, 2019, the parties agreed that the
appropriate next step would be for Respondent to file his report pursuant to Vaccine Rule
4(c) setting forth his position in this case. ECF No. 31.
Respondent filed his Rule 4(c) Report on November 12, 2019. ECF No. 32.
Respondent asserted that Petitioner had not established all of the elements necessary
for a SIRVA Table Injury, including onset of the shoulder pain within 48 hours of the
vaccination. Res. Report at 3-4. Respondent noted that Petitioner “did not complain of
left shoulder pain to a medical professional until approximately two months after
vaccination.” Id. at 4.
On November 13, 2019, a Scheduling Order was issued, noting that I had reviewed
Respondent’s Rule 4(c) Report and the evidence filed to date in this case. ECF No. 33.
I stated that briefing and a hearing were not necessary to make a finding of fact regarding
the onset of Petitioner’s alleged injury. Id. A deadline was set for the parties to file any
additional relevant evidence they wished to have considered regarding this issue. Id.
On January 6, 2020, Petitioner filed a supplemental affidavit. ECF No. 35. No
further evidence was filed. Accordingly, this 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 required by the
Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table
SIRVA. 42 C.F.R. § 100.3(a) XIV.B. (2017) (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 § 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 must consider, but is not bound by, any diagnosis,
2
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.” Curcuras 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.
The United States Court of Federal Claims has recognized, however, 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).
Medical records may also 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.
3
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
For the reasons discussed below, I find that the onset of Petitioner’s left shoulder
pain occurred within 48 hours of vaccination. I make this finding after a complete review
of the record to include all medical records, affidavits, Respondent’s Rule 4(c) Report,
and additional evidence filed. Specifically, I base this finding on the following evidence:
• On October 17, 2016, Petitioner was administered a flu vaccine
intramuscularly in her left deltoid at a Walgreens Pharmacy in Kingston, NY.
Petitioner’s Exhibit (“Pet. Ex.”) 1 at 1-2.
• On December 19, 2016 (two months post-vaccination), Petitioner presented
to Orthopedic Associates with a chief complaint of left shoulder pain. Pet.
Ex. 2 at 6. Petitioner reported at that time that her “problems began on
October 17 when she received a flu shot in the left arm.” Id. Petitioner
stated that she experienced no immediate pain; however, she began to
develop pain the day following her vaccination with stiffness, achiness to
the lateral elbow, and loss of motion. Id. Petitioner indicated that her
symptoms had worsened despite limited use of the arm. Id. On
examination, Petitioner presented with a large area of induration in the
medial head of the deltoid with tenderness. Id. at 7. Petitioner was further
observed to have reduced left shoulder range of motion with positive
impingement signs. Id. Petitioner was referred to physical therapy3 and
ordered to obtain an MRI of the shoulder.4 Id. at 7-8.
• On June 16, 2017, Petitioner returned to Orthopedic Associates with
complaints of left shoulder pain. Id. at 4. Petitioner again reported that her
symptoms had “never entirely diminished following the onset of symptoms
after a flu injection.” Id.
• On April 16, 2018, Petitioner filed an affidavit in support of this Petition
noting that, “[w]ithin 24 hours after vaccination, [she] began to feel stiffness
and pain in [her] left shoulder.” Pet. Ex. 5 at ¶ 3. Petitioner filed a
3 Petitioner attended 24 physical therapy sessions from January 10, 2017 through May 4, 2017. Pet. Ex.
4 at 1-47. On January 10, 2017, Petitioner completed a physical therapy medical questionnaire noting
that she had experienced left shoulder pain since October 2016. Id. at 53.
4 A December 30, 2016 MRI of Petitioner’s left shoulder revealed, in pertinent part, mild tendinopathy of
the supraspinatus and infraspinatus tendons. Pet. Ex. 3 at 21. The MRI did not reveal abnormal mass
lesion or fluid collection. Id.
4
supplemental affidavit on January 6, 2020. Pet. Ex. 7. She averred that
she had “developed pain in [her] left shoulder on the day after [the]
vaccination.” Id. at ¶ 2.
I find Petitioner’s affidavits to be credible and in agreement with the
contemporaneously created treatment records. Indeed, at her first post-vaccination
medical appointment, Petitioner specifically tied her left shoulder symptoms to the
vaccination and specified that her pain had begun the day following the vaccination. Pet.
Ex. 2 at 6. Moreover, at subsequent medical encounters, Petitioner consistently tied her
symptoms to the flu vaccination. Id. at 2, 4.
Although Petitioner did not seek treatment for her left shoulder injury until two
months following the October 17, 2016 vaccination, I do not find this delay to be
dispositive regarding the issue of onset. Indeed, Petitioner’s medical records reflect a
pattern of treatment similar to other SIRVA claims, in which injured parties reasonably
delay treatment, often based on the assumption that their pain is transitory. See, e.g.,
Larish v. Sec’y of Health & Human Servs, 18-20V, 2019 WL 5266886, at *6-10 (Fed. Cl.
Spec. Mstr. Jul. 2, 2019) (finding onset of shoulder pain within 48 hours of vaccination
despite a nine-week delay in treatment because petitioner’s medical records recorded
immediate post-vaccination pain); Williams v. Sec’y of Health & Human Servs, 17-830V,
2019 WL 1040410, at *9 (Fed. Cl. Spec. Mstr. Jan. 31, 2019) (noting a delay in seeking
treatment because petitioner underestimated the severity of her shoulder injury); Knauss
v. Sec’y of Health & Human Servs, 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr.
May 23, 2018) (noting a three-month delay in seeking treatment without a specified
reason).
Accordingly, I find there is preponderant evidence to establish that the onset of
Petitioner’s left shoulder pain occurred within 48 hours of her October 17, 2016 flu
vaccination.
V. Scheduling Order
Respondent shall file a status report, by no later than Wednesday, February 26,
2020, indicating whether he is interested in exploring an informal resolution of Petitioner’s
claim.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
5