Giddens v. Secretary of Health and Human Services ( 2023 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1056V
BARBARA J. GIDDENS, Chief Special Master Corcoran
Petitioner, Filed: November 14, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Kelly Elizabeth Elder, Martin & Jones, PLLC, Raleigh, NC, for Petitioner.
Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for
Respondent.
RULING ON ENTITLEMENT1
On August 21, 2020, Barbara J. Giddens 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”) resulting from an influenza (“flu”) vaccine received on December
18, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
1 Because this Ruling contains a reasoned explanation for the action taken in this case, it must be made
publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the 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 (2018).
For the reasons discussed below, I find that record evidence preponderantly
establishes that the onset of Petitioner’s shoulder pain began within 48 hours of
vaccination, and that Petitioner has satisfied the remaining requirements for entitlement.
I. Relevant Procedural History
A year after the case was activated, but before Respondent had completed his
medical review of the claim, Petitioner filed a motion to appoint a damages expert. She
maintained that her injury had forced her to retire early, resulting in a substantial reduction
in her retirement annuity (ECF No. 30). She therefore wished to retain an economist to
calculate the claimed reduction, although Respondent argued that the motion was
premature (ECF No. 32). While that motion was pending, Respondent completed his
medical review and stated that he wished to engage in settlement negotiations (ECF No.
34). I subsequently denied the motion but directed the parties to negotiate, adding that I
would invite a motion for ruling on the record if discussions failed (ECF No. 37).
Because those discussions did not succeed, Petitioner filed a motion for a ruling
on the record on October 11, 2022 (ECF No. 47). Respondent filed his Rule 4(c) Report
and a response to the motion on December 2, 2022 (ECF No. 48)3, and Petitioner replied
on January 4, 2023 (ECF No. 53). The issues of the onset of Petitioner’s shoulder pain
and her entitlement to compensation are now ripe for resolution.
II. Factual Findings and Ruling on Entitlement
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding his or her claim. Section
13(a)(1)(A). In making this determination, the special master or court should consider the
record as a whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical
records or by medical opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
3 On December 2, 2022, Respondent made two filings in CM/ECF, one as “Respondent’s Report” (ECF No.
48) and the other as “Response to Motion for Ruling on the Record” (ECF No. 49). The documents attached
to both filings appear to be identical; for purposes of this ruling I refer to the first document, ECF No. 48.
2
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). “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).
To overcome the presumptive accuracy of medical records testimony, a petitioner
may present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v.
Sec'y of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec.
Mstr. Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The Federal Circuit has
“reject[ed] as incorrect the presumption that medical records are accurate and complete
as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997
F.3d 1378, 1383 (Fed. Cir. 2021) (explaining that a patient may not report every ailment,
or a physician may enter information incorrectly or not record everything he or she
observes).
In addition to requirements concerning the vaccination received, the duration and
severity of petitioner’s injury, and the lack of other award or settlement,4 a petitioner must
establish that he or she suffered an injury meeting the Table criteria, in which case
causation is presumed, or an injury shown to be caused-in-fact by the vaccination he or
she received. Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation
(“QAI”) are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
4
In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. Section 11(c)(1)(A)(B)(D)(E).
3
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
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.” Section 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.B. Relevant Factual History
This ruling contains only a brief overview of facts relating to the onset of Petitioner’s
symptoms and her entitlement to compensation, with some additional background related
to her claim for a reduced retirement annuity.
4
1. Medical Records
On December 18, 2017, Petitioner received a flu vaccine in her right arm. Ex. 2 at
13. Four days later, she saw her primary care physician, Dr. Sumedha Dalvi,5 for
hyperlipidemia, hypertensive cardiac disease, and hypothyroidism. Ex. 7 at 47. She
reported left foot pain, but no other musculoskeletal concerns. Id. On examination, Dr.
Dalvi noted that Petitioner had “full, painless range of motion of all major muscle groups
and joints.” Id. at 49. The record noted tenderness and effusion in Petitioner’s left knee,
but no other musculoskeletal problems. Id. The record does not contain any indication
that Petitioner reported, or was experiencing, any problems with her right shoulder. Id. at
47-53.
A month later (January 22, 2018), Petitioner returned to Dr. Dalvi - now
complaining of right shoulder pain. Ex. 7 at 54. The record of this visit is typed, but also
contains several handwritten alterations that appear to have been made over a year later.6
Id. The typed portion of the January 22nd record states that Petitioner complained of right
shoulder pain that initially started three months earlier – which would put onset about two
months before vaccination – with no obvious precipitating injury. Ex. 7 at 54. The
handwritten changes delete the words stating that the pain started “3 months ago,” delete
the sentence stating there was no precipitating injury, add the words “30 days” after her
complaint of right shoulder pain, and add “Pt. reports pain started 12/2017 after receiving
flu vaccine at Fort Bragg. See details in the letter attached.”7 Id. Thus, the original, typed
record suggests that the onset of Petitioner’s pain occurred two months before
vaccination, while the altered record suggests that her pain began in December, possibly
five days after vaccination.
On examination, Petitioner displayed decreased range of motion (“ROM”) with right
shoulder extension, and pain with right shoulder extension and external rotation. Ex. 7 at
56. Dr. Dalvi assessed her with right shoulder pain and ordered x-rays, an ultrasound,
and a topical non-steroidal anti-inflammatory drug (“NSAID”). Id. at 57. She advised
Petitioner to apply heat and start physical therapy (“PT”), and referred her to an
orthopedist. Id.5 The record includes records from two physicians named Dr. Dalvi: Dr. Sumedha Dalvi, and Dr. Sanjiv
Dalvi, both with Cumberland Medical Associates. Exs. 7, 14. Petitioner saw Dr. Sanjiv Dalvi on December
15, 2020; all other appointments with a Dr. Dalvi were with Dr. Sumedha Dalvi. Therefore, any references
herein to “Dr. Dalvi” without specifying a first name refer to Dr. Sumedha Dalvi.
6 In a May 13, 2019 letter accompanying the records, Dr. Dalvi explained that the notes of this visit “need
some additions/editing, however since they have been electronically signed off, I am unable to make
changes or edit.” Ex. 7 at 1.
7 The reference to the “letter attached” appears to refer to the May 13, 2019 letter found in Ex. 7 at 1-2.
5
Petitioner’s medical records include a subsequent February 16, 2018 email to Mrs.
Giddens from Laurie Duran, a nurse practitioner with the Defense Health Agency (“DHA”)
Immunization Healthcare Branch. Ex. 7 at 42-43. The email refers to Petitioner’s
December 2017 flu vaccine and states that as Ms. Duran mentioned on the phone, what
Petitioner described sounded consistent with SIRVA. Id. at 42.
On February 20, 2018, Petitioner saw Dr. Bruce McClenathan with the DHA
Immunization Healthcare Branch. Ex. 2 at 115. The record states the reason for the
appointment was “SIRVA.” Id. Petitioner stated that she developed right shoulder pain
within 48 hours of receiving her flu vaccine in her right deltoid on December 18, 2017,
and that the pain had been “significant and persistent.” Id. She did not recall the exact
injection situs, but did not recall it being high on her shoulder. Id. She developed
significant soreness where the vaccine was injected, without observable swelling or
redness, that progressed to stiffness and decreased ROM that had persisted for over two
months. Id. Petitioner reported a pain level of seven out of ten, describing it as a dull pain
with movement, especially with internal rotation. Id. The pain could be minimal to zero at
rest. Id. She had tried topical Voltaren gel without significant improvement, and had not
yet tried oral NSAIDs or PT. Id.On examination, she had a “clear discrepancy” in internal rotation in her right
shoulder compared to her left shoulder. Ex. 2 at 116. Petitioner was diagnosed with
adverse effects of a vaccine, with a clinical history and exam “most consistent with
SIRVA.” Id. The differential diagnosis included impingement syndrome, rotator cuff tear,
biceps tendonitis, osteoarthritis, and less likely adhesive capsulitis. Id. Because her pain
began within 48 hours of vaccination, Dr. McClenathan suspected SIRVA as the most
likely cause, and ordered an MRI. Id. He prescribed Naproxen and PT. Id.Two days later (February 22, 2018), Petitioner underwent a right shoulder MRI.
Ex. 2 at 112. The reason for the MRI was noted as “shoulder pain [beginning] 2 days after
flu vaccine and now persisting for more than 60 days.” Id. The MRI showed a possibly
degenerative superior labral tear, moderate joint effusion and mild subacromial subdeltoid
bursitis, and mild acromioclavicular joint arthrosis. Id. at 113.
On March 23, 2018, Petitioner obtained a PT evaluation for her right shoulder. Ex.
2 at 108. She reported that “~90 days ago” she had a flu shot in her right shoulder, and
“immediately 2-24 hours after this happened she began to experience pain and edema
and inability to put her R[ight] UE [upper extremity, or arm] behind her back,” which had
persisted. Id. She reported a pain level of one out of ten at present and six out of ten at
worst. Id. On examination, her right shoulder active ROM was five degrees in internal
6
rotation, 90 degrees in external rotation, and within normal limits in flexion and abduction.8
Id. at 109. She had positive results on the empty can, Yergason, Jerk, and AC
Compression tests. Id. at 110. The physical therapist noted increased edema to
Petitioner’s right shoulder compared to left. Id. (Petitioner continued PT through 2018 to
January 3, 2019. Id. at 107-241.)
On the same day as her PT evaluation, Petitioner saw orthopedist Dr. John
Snurkowski for right shoulder pain. Ex. 2 at 103. Petitioner reported that she received a
flu vaccine in her right deltoid on December 18, 2017, and “two-three days later, started
having increased right shoulder pain, and loss of motion of the shoulder.” Id. Her shoulder
felt swollen and she had noticed a loss of motion, stiffness, and pain with certain
movements. Id. Dr. Snurkowski reviewed Petitioner’s x-rays and MRI, and assessed her
with “frozen shoulder with correlation to flu vaccine.” Id. at 105. He offered her a steroid
injection, but she declined. Id. He recommended that she continue PT to improve her
ROM, continue Voltaren gel, and return in a month. Id.Petitioner followed up with Dr. Snurkowski for her shoulder pain on April 19, 2018.
Ex. 2 at 92. She had been going to PT, and felt her ROM was improving. Id. She was not
taking pain medication. Id. Dr. Snurkowski advised her to continue with PT for her ROM,
and consider manipulation under anesthesia if she hit a plateau and her ROM was
interfering with activities of daily living. Id. He advised her that adhesive capsulitis could
take up to a year to reach maximum improvement. Id.Nearly four months later (August 14, 2018), Petitioner saw Dr. McClenathan to
follow up on her SIRVA. Ex. 2 at 28. At this time, she was not having any pain in her right
shoulder, but with internal rotation and adduction felt pain at a level of one out of ten. Id.Her pain and ROM had improved since starting PT, but she still had pain with certain
movements, especially reaching behind her back. Id. Dr. McClenathan recommended that
she continue PT and avoid future vaccinations in her right arm. Id. at 31.
At her January 3, 2019 PT session, Petitioner reported “a significant improvement
in her ROM overall.” Ex. 2 at 239. She continued to have lateral shoulder pain, especially
during cold weather, and intermittent popping during movement. Id. The physical therapist
noted “a very mild loss of hand behind the back motion,” and believed that her adhesive
capsulitis was “mostly resolved.” Id. at 241. He noted that she might continue to have
some chronic bursal inflammation, but stated that “this is not impacting her function.” Id.He did not recommend continued PT because “she has received over 30 visits and
demonstrates good functional abilities.” Id. The therapist directed her to return to her
8 Normal shoulder ROM for adults ranges from 90 to 100 degrees in external rotation and 70 to 90 degrees
in internal rotation. Cynthia C. Norkin and D. Joyce White, MEASUREMENT OF JOINT MOTION: A GUIDE TO
GONIOMETRY 84, 88 (F. A. Davis Co., 5th ed. 2016).
7
orthopedist to discuss the need for a repeat MRI as the therapist did “not feel this is
necessary.” Id.Less than two weeks later (January 16, 2019), Petitioner saw orthopedist Dr.
Kenneth Nelson for right shoulder pain. Ex. 2 at 235. She had improved “fairly significantly
compared to where she was originally” with PT, but “continues to have pain in her
shoulder with motion, particularly anything over 90° of abduction.” Id. She went to Dr.
Nelson “predominantly to obtain a referral back to physical therapy.” Id. at 236. Dr. Nelson
provided a PT referral and stated that he thought it was “likely that she will continue to
improve at this point.” Id. He did not see any indication for a repeat MRI, as she was
improving, but if she started getting worse, plateaued, or stopped improving, he said she
should return for a surgical evaluation. Id.Petitioner attended a second round of PT from February 7 to April 8, 2019. Ex. 4
at 1-36. At her February 7, 2019 evaluation, she reported that she had some pain into her
right first and second fingers when putting her hands on her hips, and sleeping with her
arm over her head was uncomfortable. Id. at 2. She had difficulty putting on and taking
off her bra, but her arm had not bothered her at work. Id. (emphasis added). She was
found to have signs and symptoms consistent with a diagnosis of frozen shoulder, with
decreased ROM, decreased muscle length, strength deficits, and postural impairments.
Id. at 3. Four days later, she reported that she felt “a little sore after the last session.” Id.
at 5. On February 21, 2019, her shoulder was “feeling pretty good today and she is in no
pain at rest.” Id. at 11. Four days later, she was “not in any pain at the moment” and the
“tingling in her hand ha[d] improved.” Id. at 13.
On March 7, 2019, Petitioner experienced “some discomfort in [the] top of her
R[ight] shoulder and on her shoulder blade.” Ex. 4 at 19. Twelve days later, she was
“currently not in any pain.” Id. at 25. On March 21, 2019, her shoulder was “feeling good”
with “no pain at the moment.” Id. at 27. On April 1, 2019, she reported that “her arm felt
as though it was ‘swelling’ around the lateral R elbow region on Friday, but it subsided
that evening” and she was “feeling pretty good today.” Id. at 31. On April 8, 2019, she
reported that her arm had “started to ache last night and has continued into the day today,”
a feeling she described as “uncomfortable.” Id. at 33. She showed improved joint mobility
and soft tissue extensibility, and was able to perform exercises without an increase in
pain. Id. She asked for her PT to be put “on hold” for 30 days. Id.On September 3, 2019, Petitioner saw Dr. McClenathan for her shoulder pain. Ex.
2 at 606. She had completed a second round of PT in April 2019, and noted “up to 70%
overall improvement but still has residual pain and decreased ROM (int rotation and
abduction) currently.” Id. She awoke with pain approximately three times a week. Id. She
was able to complete all activities of daily living, with modifications. Id. Dr. McClenathan
recommended that Petitioner continue her home exercises and follow up as needed. Id.
at 608.
8
Petitioner saw Dr. Dalvi on October 7, 2019, November 18, 2019, and February
18, 2020. Ex. 14 at 2-29. The November 18 record notes shoulder pain of moderate
intensity happening for five to ten minutes at a time, several times a month. Id. at 11. Dr.
Dalvi advised her to keep a log of these events. Id. at 16. At the February 18, 2020
appointment, Petitioner reported stiffness in her shoulder and hands. Id. at 19. She
reported right shoulder pain of moderate intensity on a daily basis. Id. at 20. Dr. Dalvi
prescribed an NSAID and recommended heat therapy and an orthopedic consult. Id. at
27. Petitioner continued to see Dr. Dalvi throughout 2020 for various concerns, with no
mention of right shoulder pain. Id. at 30-61.
On December 15, 2020, Petitioner saw Dr. Sanjiv Dalvi for several health concerns
and a Medicare Annual Wellness Physical. Ex. 14 at 62. Petitioner complained of right
shoulder pain that “initially started 3 years ago.” Id. at 63. The record states that the
apparent precipitating event was “lifting,” but the mechanism of injury was unknown. Id.It was moderate in severity, with shoulder stiffness, crepitus, and weakness. Id. The pain
was relieved with rest and heat, and increased with flexion, abduction, external rotation,
lifting, and daily activities requiring overhead activity. Id. On examination, Petitioner had
decreased ROM and pain with right shoulder extension, abduction, internal rotation, and
external rotation. Id. at 65. Petitioner was advised to use Tylenol and heat therapy, and
was referred to an orthopedist. Id. at 71.
Petitioner saw Dr. Sumedha Dalvi again on January 8, 2021 for several concerns
including shoulder pain. Ex. 14 at 74. The description of the pain and treatment
recommendations are nearly identical to the December 15, 2020 record. Id. at 75, 82-83.
Petitioner attended additional PT from March to June of 2021. Exs. 13, 19.
2. Affidavits
Petitioner has submitted two affidavits in support of her case. Exs. 6, 17. She states
that she began experiencing pain, swelling, and stiffness in her right shoulder and arm
within 48 hours of vaccination. Ex. 17 at ¶ 4. She explained that she did not complain
about the pain at her PCP visit four days after vaccination because she “did not realize
that [she] was experiencing anything more than normal, temporary, post-vaccination
soreness.” Id. Her pain and stiffness intensified and grew progressively worse over the
next 30 days, impacting her ability to do things requiring moving her right arm and first
and second fingers on her right hand. Id. at ¶ 5. The pain was worse at night and affected
her sleep. Id.9
Petitioner states that when she completed her first round of PT in January 2019,
she was told that her level of functioning would not improve further. Ex. 17 at ¶ 11. Until
this time, she had remained positive about her ability to rehabilitate her arm, but then
began to accept that limitations would be her new “normal.” Id. Her job required that she
type and produce time-sensitive documents and presentations. Id. Due to her injury, she
now went to work one or two hours earlier than normal in order to complete her assigned
tasks, and required frequent breaks. Id.At the conclusion of her second round of PT in April 2019, she continued to
experience weakness and intermittent tenderness in her right shoulder and cervical
region. Ex. 17 at ¶ 13. She did not request additional PT authorization “because it was
thought I had improved enough to perform activities of daily living, but typing, my primary
work duty, remained painful as it inflamed my injury.” Id.Petitioner also states that her plan had been to retire in December 2020 with 25
years of creditable service. Ex. 17 at ¶ 20. Instead, on February 28, 2019, she informed
her supervisor that she would be retiring on May 31, 2019 for health reasons. Id. Petitioner
“felt that [she] could no longer perform at the adjusted pace for my daily tasks, which
required coming in early to complete my tasks in a timely manner, due to the level of pain
in [her] dominant arm.” Id. Her quality of life diminished due to excessive hours and pain
at work. Id. At her retirement on May 31, 2019, she had 23 years and 11 months of
service. Id. She states that she “would not have retired earlier than 25 years of service
had this vaccine injury not occurred.” Id. She explains that she also used sick leave to
treat her SIRVA, and that had she not done so, unused sick leave would have been used
to increase the length of service, resulting in a higher monthly retirement annuity. Id. at
¶ 21.
3. Unsworn Memorandum of Petitioner’s Former Supervisor
Petitioner has offered into evidence a document dated October 5, 2021, and titled
“Memorandum for Record,” with a subject line of “Letter of Input for Mrs. Barbara Giddens,
Family Programs Liaison Officer (Retired).” Ex. 18. The letter is signed by Mufutau A.
Taiwo, Deputy Director of Family Programs at the United States Army Reserve Command
Headquarters in Fort Bragg, North Carolina, and is on Army letterhead, but is not
notarized or signed under penalty of perjury. Id.Mr. Taiwo states that Petitioner provided “superior and superb” service during her
time in his office. Ex. 18 at ¶ 1. She “put her health issues aside to ensure the mission
was accomplished.” Id. at ¶ 3. In February or March of 2019, Petitioner notified Mr. Taiwo
of her deteriorating health condition. Id. She was “a consummate professional, [and]
continued to execute her duties with precision and excellence” in spite of a “worsening
quality of life.” Id. Mr. Taiwo adds that his office “lost a shining star when Mrs. Giddens
10
informed me of her decision to retire to take care of herself and spend time with her
Family.” Id.C. The Parties’ Arguments
Petitioner argues that she has shown by a preponderance of the evidence that the
SIRVA elements, plus general Act requirements, are met, entitling her to compensation.
Petitioner’s Motion for Ruling on the Record, filed Oct. 11, 2022 (ECF No. 47) (“Pet.”). On
the disputed question of onset, Petitioner acknowledges concerns about the lack of
reference to SIRVA onset in the December 22, 2017 and January 22, 2018 records, but
asserts that “[s]ince [the time of the January 22] visit, Mrs. Giddens and her records have
been consistent that this injury was caused by her vaccine injury, and that the right
shoulder pain appeared within 48 hours.” Pet. at *9. Concerning the absence of any
mention of shoulder pain in the December 22nd record, she cites her affidavit, in which
she explained that she did not complain of arm and shoulder pain at this time, four days
after vaccination, because she “did not realize [she] was experiencing anything more than
normal, temporary, post-vaccination soreness.” Pet. at *8-9 (citing Ex. 17 at ¶ 4).
With respect to handwritten alterations to the January 22, 2018 Dr. Dalvi record,
Petitioner cites Lowrie v. Sec’y of Health & Human Servs., No. 03-1585V, 2005 WL
6117475, at *19 (Fed. Cl. Spec. Mstr. Dec. 12, 2005) for the proposition that “[w]ritten
records which are, themselves, inconsistent, should be accorded less deference than
those which are internally consistent”). Pet. at *9. Petitioner argues that the Womack
Army Medical Center records – which includes the records of Dr. McClenathan, Dr.
Snurkowski, Dr. Nelson, and her first round of PT – make clear that her injury occurred
within 48 hours of vaccination, and her Cumberland Medical Associates records – Dr.
Dalvi’s records – should be relied on only to show that she presented to her physician. Id.at *9 n.1.
Petitioner also requests a specific element of compensation, based on an alleged
reduction in her retirement annuity, in the amount of the difference between her current
annuity and what she would have received had she retired on December 31, 2020, as
originally planned (with 25 years of creditable service). Pet. at *12-13, 14, 17. Because of
her vaccine injury she “felt that [she] could no longer perform at the adjusted pace for my
daily tasks, which required coming in early to complete [her] tasks in a timely manner,
due to the level of pain in [her] dominant arm.” Id. As a result, she retired early – on May
31, 2019. Id. Although her PT records state that her shoulder had not bothered her at
work and could suggest that she was pain-free, Petitioner asserts that her testimony,
together with a letter from her former supervisor (Exhibit 18), are sufficient to overcome
the presumption of accuracy of the PT records. Id. at *15. She adds that there were no
11
adequate accommodations available and, even if there were, they would have required
her to learn new technology for one and a half additional years of work. Id.Respondent argues that Petitioner is not entitled to compensation, and the petition
should be dismissed. Respondent’s Rule 4(c) Report and Response to Petitioner’s
Motion, filed Dec. 2, 2022 (ECF No. 48) (“Resp.”). First, Respondent asserts that
Petitioner has not preponderantly demonstrated that the onset of her shoulder pain
occurred within 48 hours of vaccine administration. Id. at *17. Petitioner did not report
right shoulder pain until over a month after vaccination. Id. at *19. In the interim, she saw
Dr. Dalvi but made no mention of pain at that time. Id. Furthermore, Petitioner’s
contemporaneous medical records “differ regarding the onset date of her shoulder
symptoms.” Id. at *20. The record of her January 22, 2018 appointment initially stated
that her right shoulder pain began three months prior (meaning two months before
vaccination). It later was changed to suggest that the pain had been present for 30 days,
but this would place onset five days after vaccination. Id. Either version of this record,
therefore, would place onset outside of the time set forth in the Table. Id. Respondent
urges that I place more weight on the initial, unaltered record, suggesting that likely Dr.
Dalvi based her alterations to the record on facts relayed to her by Petitioner. Id. (citing
Clavio v. Sec’y of Health & Human Servs., No. 17-1179V, 2020 WL 1672956, at *9 (Fed.
Cl. Spec. Mstr. Mar. 11, 2020)).
Respondent adds that at later appointments, Petitioner inconsistently placed onset
within 48 hours of vaccination (February 20, 2018 appointment with Dr. McClenathan);
within 2-24 hours of vaccination (March 23, 2018 PT evaluation); two to three days after
vaccination (March 23, 2018 appointment with Dr. Snurkowski); “the very next day” after
vaccination (February 17, 2019 PT intake); and “several months ago” (November 18,
2019 Dr. Dalvi appointment). Resp. at *20. In light of these inconsistencies, Respondent
argues that any later affidavits asserting that onset occurred within 48 hours “conflict with
the contemporaneous records, which do not resolve petitioner’s date of onset, and are
thus deserving of little weight.” Id. at *21. Respondent argues that pursuant to Kirby, 997
F.3d at 1528, I should give greater weight to contemporaneous medical records than to
later, contradictory testimony. Resp. at *18.
Second, Respondent argues that Petitioner has not shown that she is entitled to
anticipated lost earnings. Resp. at *22-23. Respondent notes that three months before
retirement, Petitioner reported that her shoulder “[had not] bothered her at work.” Id.
(citing Ex. 4 at 2). The letter of Petitioner’s former supervisor stated that Petitioner told
him in February or March of 2019 that her right shoulder pain was the result of execution
of her duties, not her vaccine injury. Id. at *23 (citing Ex. 18 at 2). And on May 3, 2019,
less than a month before her retirement, Petitioner was discharged from PT because she
was “no longer having pain.” Id. (citing Ex. 4 at 35). Respondent adds that Petitioner had
numerous other health conditions, which may – and likely were – factors in Petitioner’s
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decision to retire earlier than intended. Id. Respondent requests the opportunity to more
fully address damages in subsequent briefing, if I find that Petitioner is entitled to
compensation. Id. at *23 n.33.
Petitioner replies that Respondent “misstates the facts and asserts unfounded
inaccuracies.” 9 Petitioner’s Reply to Respondent’s Response, filed Jan. 4, 2023 (ECF
No. 53) (“Reply”). Petitioner argues that the distinctions Respondent makes as to the
onset stated in her medical records are “distinctions without differences.” Reply at *3-4.
Petitioner views these records as supporting her claim that her shoulder pain began within
48 hours of vaccination. Id. Petitioner adds that Respondent misconstrues the letter of
her former supervisor, stating that this letter does not state that the supervisor was
informed in February or March of 2019 of her injury itself – but rather of her deteriorating
health issue. Id. at *6-7 (citing Ex. 18 at 1).
D. Factual Finding Regarding QAI Criteria for Table SIRVA
1. Onset
After a review of the entire record, I find, based on a preponderance of the
evidence, that more likely than not the onset of Petitioner’s shoulder pain began within 48
hours of vaccine administration. While the first two records after Petitioner’s vaccination
could suggest that the onset of her shoulder pain did not occur in the Table timeframe,
nearly all later records support her onset contentions.
Admittedly, Petitioner saw her PCP four days after vaccination but made no
mention of shoulder pain.10 Ex. 7 at 47. And although the first time she sought care for
her right shoulder pain was just over a month after vaccination, the pre-altered version of
that record reported the pain had started three months earlier, which would put onset two
months before vaccination. Ex. 7 at 54. The record was later altered to suggest that the
9 Petitioner argues that Respondent “misunderstands and misstates” her place of employment, and on that
basis “appears to attempt to undermine the opinions of the treating physicians at Womack.” Reply at *2. I
find no reason to question the credibility of the Womack records, and give them the same weight I accord
the remaining medical records. As to Petitioner’s objection to Respondent’s assertion that Petitioner must
articulate a specific shoulder injury such as bursitis, adhesive capsulitis (Reply at *5), my reading of
Respondent’s argument is that Respondent believes such a specific injury would be required for an off-
Table claim, not for a Table SIRVA claim. Finally, the question whether Petitioner has Arnold-Chiari
syndrome (Reply at *5-6), or any other additional health conditions identified by Respondent, has no bearing
on my ruling herein.
10 This record also states that she had “full, painless range of motion of all major muscle groups and joints.”
Ex. 7 at 49 (emphasis added). However, this is a record of a single point in time, and does not definitively
establish that Petitioner did not experience shoulder pain within 48 hours of vaccination. It could reasonably
be construed to mean only that there was no pain upon movement of the shoulder at this time –
distinguishable from a general lack of pain.
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onset was 30 days earlier, which could imply it started five days after vaccination – beyond
the 48 hour timeframe for a Table SIRVA claim. Id.
Thereafter, however, Petitioner’s medical records almost exclusively placed the
onset of her shoulder pain within 48 hours after vaccination, and related her pain to the
vaccination as well. When Petitioner saw Dr. McClenathan two months after vaccination,
she reported right shoulder pain within 48 hours of the flu vaccination on December 18,
2017, with significant soreness at the vaccination site. Ex. 2 at 115. When she presented
for an MRI two days later, she again reported shoulder pain beginning two days after
vaccination. Id. at 112. At her PT evaluation the following month, 95 days after
vaccination, she reported pain that began “~90 days ago,” and “immediately 2-24 hours”
after her flu shot. Id. at 108. The same day, she told her orthopedist that her pain began
“two-three days” after her flu vaccination. Id. at 103.
While Petitioner’s reports about when her shoulder pain began are not identical to
one another, these differences do not cast sufficient doubt to rule against her on this point.
Rather, Petitioner’s descriptions of her pain while seeking diagnosis and treatment are
consistent in placing onset very close in time to vaccination – predominantly within 48
hours of vaccination. These medical records are further bolstered by Petitioner’s affidavit
testimony, where she states that her pain, swelling, and stiffness began within 48 hours
of vaccination. Ex. 17 at ¶ 4. She provided a plausible explanation for not complaining
about her right shoulder pain at her appointment four days after vaccination – that she
thought the soreness she was experiencing was normal, temporary soreness that would
go away on its own. Id.
I give somewhat less weight to the January 22, 2018 record than the remaining
medical records due to the alterations. It is not clear when the alterations were made, but
seems likely they were made around the time of the May 2019 letter from Dr. Dalvi –
which would be approximately 16 months after the appointment, making the changes not
contemporaneous. While the initial typed record appears to have been made
contemporaneously, the fact that Dr. Dalvi later determined that the record required
editing casts doubt on the accuracy of the information in the initial record. As such, it
merits less weight.
But even disregarding this record entirely does not prevent a finding that
preponderant evidence supports the alleged onset, given both the overall timeframe of
complaints of shoulder pain less than two months after vaccination and the consistency
of later records as to onset.
2. Other SIRVA QAI Criteria
Respondent does not contest the remaining SIRVA QAI criteria, and I find that the
record contains preponderant evidence that they are satisfied. Petitioner did not have a
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history of right arm pain or injury prior to vaccination that would explain her symptoms
after vaccination. See Exs. 7; 12. Her pain and reduced ROM were limited to her right.
shoulder, where the flu vaccine was administered, and no other condition or abnormality
has been identified that would explain her post-vaccination symptoms. See Exs. 2, 4, 7;
12.
E. Other Requirements for Entitlement
The record contains preponderant evidence that other requirements for entitlement
are satisfied as well. Petitioner received a covered vaccine in the United States. Ex. 2 at
13. She experienced the residual effects of her condition for more than six months. Ex. 2
at 28-31, 58-73, 92-93. She averred that neither she, nor any other party, has ever filed
an action, or received compensation in the form of an award or settlement, for her
vaccine-related injury. Ex. 6 at ¶¶ 5-6.
III. Request for Anticipated Loss of Earnings
Whether Petitioner is entitled to anticipated loss of earnings based on an allegedly
reduced annuity resulting from an early retirement is a damages issue, and thus I do not
decide it here. However, because the parties have addressed it in their briefing, I will
provide my preliminary views.
While Petitioner asserts that her vaccine-related injury “necessitated” her early
retirement (Pet. at 14-17), this does not appear to be supported by the record. Petitioner
retired on May 31, 2019. Four months before, her orthopedist noted that she had
improved “fairly significantly,” but continued to have pain in her shoulder with motion. Ex.
2 at 235. Her orthopedist thought it was likely she would continue to improve and ordered
more PT. Id.
Petitioner’s PT records from the months before her retirement suggest that she
remained symptomatic, but only mildly so. At a PT evaluation on February 7, 2019, three
and a half months before her retirement, she had signs and symptoms consistent with a
frozen shoulder diagnosis, and reported that she continued to have pain with certain
movements – but, significantly, also reported that her shoulder had not bothered her at
work. Ex. 4 at 2. Two weeks later, she reported that her shoulder was “pretty good,” with
no pain at rest. Id. at 11.
Over the next two months, she continued PT, reporting improvements but some
remaining discomfort. Ex. 4 at 2-33. At several appointments, she reported no pain. Id. at
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13, 25, 27. At other appointments, she reported some arm pain or discomfort. Id. at 2, 5,
19, 31, 33. At her last PT session before retiring, on April 8, 2019, she showed improved
joint mobility and was able to perform exercises without an increase in pain. Id. at 33.
The records in the months leading up to Petitioner’s retirement thus suggest mild
and intermittent symptoms. See generally Exs. 2, 4. I acknowledge Petitioner’s affidavit
testimony about the impact her injury had on her work performance and quality of life. Ex.
17 at ¶ 20. I do not doubt that Petitioner experienced pain and discomfort from her injury
during this time. However, the record does not appear to support a finding that her
symptoms were significant enough to require her to retire early. See, e.g., Taylor v. Sec’y
of Health & Human Servs., No. 18-100V, 2021 WL 1346059, at *6 (Fed. Cl. Spec. Mstr.
Mar. 12, 2021) (denying request for lost wages based on alleged early retirement due to
insufficient evidence, noting that medical records did not include evidence of significant
ongoing symptoms). On the record as it stands, I would not likely be able to award
Petitioner the requested damages on the basis that her injury required an early retirement
(although the issue may be appropriately developed a bit more before any formal
damages decision is made).
Conclusion
Based on my review of the record as a whole, I find that it is more likely than not
that the onset of Petitioner’s shoulder pain occurred within 48 hours of vaccine
administration. I find that all other SIRVA Table requirements are met, as are other
requirements for entitlement. Therefore, Petitioner’s motion for a ruling on the record that
she is entitled to compensation is GRANTED.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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