Kohl v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-748V
Filed: August 18, 2022
* * * * * * * * * * * * * * * * * * *
CONSTANCE KOHL, * PUBLISHED
*
Petitioner, *
* Severity Requirement; Tetanus-
v. * diphtheria-acellular pertussis
* (“Tdap”) Vaccine; Shoulder Injury
SECRETARY OF HEALTH * Related to Vaccine Administration
AND HUMAN SERVICES, * (“SIRVA”); Reconsideration
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * *
Mark Sadaka, Esq., Mark T. Sadaka, LLC, Englewood, NJ, for petitioner.
Debra Begley, Esq., U.S. Department of Justice, Washington DC, for respondent.
FACT RULING AND DISMISSAL DECISION1
Roth, Special Master:
On June 24, 2016, Constance Kohl (“Ms. Kohl” or “petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et
seq.2 (“Vaccine Act” or “the Program”). Petitioner alleges that a tetanus-diphtheria-acellular
pertussis (“Tdap”) vaccination she received on June 28, 2013 caused her to develop a “frozen
shoulder, stiffness, numbness, tingling, swelling, redness, and reduced range of motion.” Petition,
ECF No. 1.
The parties disagree whether petitioner has shown that she suffered the residual effects or
complications of her alleged injury for more than six months, otherwise known as the severity
requirement. § 300aa-11(c)(1)(D)(i-ii). After a fact hearing, I issued a ruling finding that
1
This Decision has been designated “to be published,” which means I am directing it to be posted on the Court of
Federal Claims’ website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899,
2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). This Decision will be available to anyone with access
to the internet. However, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, each party has fourteen days within which to request redaction “of any information furnished by that
party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that
includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). Otherwise, this Ruling will be available to the public. Id.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).
petitioner’s alleged injury persisted in excess of six months. Respondent filed a Motion for
Reconsideration (“Mot. Recons.”). ECF No. 67. I granted respondent’s Motion and withdrew my
ruling. Order, ECF No. 70.
The following is a new fact ruling on the severity requirement. For reasons detailed below
and with consideration of all medical records, testimony, and other documentary evidence
accorded their appropriate weight, I find that there is insufficient evidence to conclude that
petitioner’s vaccine reaction and the effects thereof lasted for more than six months. Thus, the
petition is DISMISSED.
I. Procedural History
The petition was filed on June 24, 2016. ECF No. 1. This matter was originally assigned
to the Special Processing Unit (“SPU”). ECF No. 4.
Petitioner filed medical records on June 28, 2016 and a Statement of Completion on July
1, 2016. Petitioner’s Exhibits (“Pet. Ex.”) 1-6, ECF No. 5; ECF No. 7.
A status conference was held on August 16, 2016. Scheduling Order at 1-2, ECF No. 9.
Respondent requested, and petitioner was ordered to produce, all chiropractic treatment records,
any medical records corroborating petitioner’s diagnosis of frozen shoulder, any evidence showing
that petitioner suffered residual injuries in excess of six months, and an affidavit explaining the
two-year gap in treatment between August 15, 2013 and April 19, 2016. Id.
Following an unopposed Motion for Extension of Time, petitioner filed medical records
from Rosemeyer Jones Chiropractic and witness statements from Todd Fischer3 and Dennis Paulus
on December 16, 2016. See Motion, ECF No. 10; Non-PDF Order, issued Oct. 17, 2016; Pet. Ex.
7-9, ECF No. 11. Petitioner filed an additional statement from Todd Fischer on December 23,
2016, Pet. Ex. 10, ECF No. 13.
Respondent filed his Rule 4(c) Report on March 1, 2017, stating that “this case was not
appropriate for compensation under the terms of the Act because petitioner has not established six
months of sequela as required by 42 U.S.C. § 300aa-11(c)(1)(D)(i-ii).” Rule 4 at 1, ECF No. 16.
Petitioner was ordered to file a detailed affidavit addressing the gap in treatment between
August 15, 2013 and April 19, 2016. Scheduling Order at 1, ECF No. 17. Following a Motion for
Extension of Time, petitioner filed her affidavit on April 17, 2017. See Motion, ECF No. 19; Order,
ECF No. 20; Pet. Ex. 11, ECF No. 21.
During a status conference on May 2, 2017, respondent requested that petitioner file
additional documentation from her employer supporting her claim that she experienced residual
effects of her alleged injury for longer than six months. Scheduling Order at 1-2, ECF No. 22.
Petitioner’s counsel stated that it was unlikely that petitioner’s employer, a relatively small dairy
3
The evidence filed in this matter uses “Fischer” and “Fisher” interchangeably; they both refer to Todd Fischer, his
wife Julie Fischer, and their business, Fischer Dairy Farm.
2
farm in rural Wisconsin, would have such sophisticated record keeping. Id. at 2. However,
petitioner’s counsel agreed to try and secure additional evidence by June 1, 2017. Id.
Petitioner subsequently filed billing and employee records, a notice from the Workers
Compensation Board showing that she had not made any claims, and a letter indicating the absence
of any Medicaid lien. Pet. Ex. 12, ECF No. 23; Pet. Ex. 13-14, ECF No. 26; Pet. Ex. 15, ECF No.
28.
Respondent filed a status report on August 7, 2017, advising that he intended to continue
defending this case and requested a status conference to discuss how to proceed. Resp. Status Rpt.
ECF No. 29.
On August 8, 2017, this matter was reassigned to me. ECF No. 32. A status conference
was held on August 29, 2017 to discuss the issues in this case, including the two-year-and-eight-
month gap between petitioner’s last treatment for her alleged left shoulder injury, August 15, 2013,
and when she presented to Crossing Rivers Health and shoulder pain was noted, April 19, 2016.
Scheduling Order at 1, ECF No. 33; Pet. Ex. 5 at 66-68. More specifically, petitioner stated in her
affidavit that she did not visit a physician for her alleged injury because she did not have health
insurance. Pet. Ex. 11 at 1. However, she consistently received chiropractic treatment from 2013
through 2016 for her neck, thoracic, and lower back pain. See generally Pet. Ex. 7. The chiropractic
records did not reflect any complaints of left shoulder pain during the period in question. See
generally id. Petitioner filed affidavits from her employer, Mr. Fischer, and co-worker, Mr. Paulus,
about how her duties were adjusted as a result of her left shoulder injury, but the affidavits did not
address how long the duties were adjusted. See Pet. Ex. 8-10. Additional evidence was filed,
including tax returns that showed no lost income. See Pet Ex. 13. Petitioner’s counsel stated that
the record was complete and he was granted thirty days to consult with his client. Scheduling Order
at 2.
Petitioner filed a status report on September 28, 2017, requesting thirty days to brief her
case and asking that a ruling be issued as to whether petitioner satisfied the six-month requirement.
Pet. Status Rpt. at 1, 5, ECF No. 34.
A status conference was held on October 4, 2017 to discuss petitioner’s status report.
Scheduling Order at 1, ECF No. 35. During the conference, respondent requested additional
information from Mr. Fischer on how petitioner’s work duties were adjusted to accommodate her
injuries. Id. Petitioner was ordered to file an affidavit from Mr. Fischer by November 3, 2017. Id.
Petitioner filed an additional affidavit from her employer, Mr. Fischer on October 31, 2017.
Pet. Ex. 16, ECF No. 36. On December 20, 2017, respondent filed a status report advising that he
intended to continue defending this case. Resp. Status Rpt. at 1, ECF No. 38.
During a status conference on February 7, 2018, respondent’s counsel stated that Mr.
Fischer’s affidavit was inconsistent with the records filed. Scheduling Order at 1, ECF No. 39.
Petitioner’s records showed that after her alleged injury, she exceeded the number of hours that
she previously worked; however, after injuring her right shoulder in a fall in 2016, petitioner’s
work hours were reduced. Id. Respondent’s counsel questioned why petitioner could continue
3
working normal hours after her alleged vaccine injury, but not after her shoulder injury from a fall
in 2016. Id. Petitioner’s counsel responded that, although petitioner did not need surgery for her
2016 shoulder injury, it was more serious than her alleged vaccine injury. Id. Petitioner was
ordered to file her Facebook data, and respondent was ordered to file questions for petitioner to
answer. Id.
Petitioner filed her Facebook data on March 20, 2018. Pet. Ex. 17, ECF No. 41. Respondent
filed his status report on April 9, 2018, containing a list of questions to be answered and additional
documents to be produced by petitioner. Resp. Status Rpt. at 1-2, ECF No. 42. Petitioner was
ordered to file a response by June 8, 2018. Scheduling Order at 1, ECF No. 43.
On June 4, 2018, Petitioner filed a letter from Julie Fischer and her timesheets and those
of her co-worker Dennis Paulus. Pet. Ex. 18-20, ECF No. 45. Petitioner filed a status report on
June 7, 2018, indicating that she had fulfilled the requests made by respondent to the best of her
ability and that no further records existed. Pet. Status Rpt. at 1, ECF No. 46.
Petitioner filed an additional status report on July 3, 2018, advising that she tried to secure
records or a statement from Dr. Jones, her chiropractor, but was unable to do so. Pet. Status Rpt.
at 1, ECF No. 47. She requested a fact hearing at this time. Id.
The parties were ordered to file a joint status report suggesting dates for a fact hearing to
be held in February of 2019. Scheduling Order at 1, ECF No. 48. Petitioner filed a joint status
report on August 23, 2018. Joint Status Rpt., ECF No. 47. On August 24, 2018, a pre-hearing order
was issued, scheduling this matter for a fact hearing on Wednesday, February 6, 2019. Pre-Hearing
Order, ECF No. 50.
After filing a status report on July 3, 2018 that she was unable to secure a statement from
Dr. Jones, on the eve of the hearing, petitioner filed a letter from Dr. Jones dated September of
2017 in which he wrote that he had treated her during the timeframe at issue but could not admit
nor deny her shoulder injury since he treated her for spinal issues. Pet. Ex. 21, ECF No. 54.
Petitioner contemporaneously filed a status report advising that Dr. Jones’ letter was inadvertently
misfiled by his office and therefore had not been filed in this case. Pet. Status Rpt. at 1, ECF No.
55. He requested that the letter be permitted for use during the hearing. Id.
A fact hearing was held on Wednesday, February 6, 2019. Transcript (“Tr.”) 1, ECF No.
61. Thereafter, petitioner filed updated primary care records on March 29, 2019. Pet. Ex. 23, ECF
No. 58. On July 12, 2019, the parties jointly requested a determination on whether petitioner
satisfied the severity requirement, and the record was closed.
On August 21, 2019, a Fact Ruling was issued, finding that petitioner suffered limitations
of a left arm/shoulder injury for approximately ten months, satisfying the severity requirement.
ECF No. 66.
On September 11, 2019, respondent filed a Motion for Reconsideration requesting that the
Fact Ruling on the severity requirement be withdrawn. Mot. Recons., ECF No. 67. Citing RCFC
59(a)(1), respondent requested a new decision arguing that I “overlooked several pieces of key
4
evidence and made several substantive mistakes that could alter [my] determination.” Id. at 1.
Specifically, respondent argued that Petitioner’s Exhibit 23, which contains primary care visits for
the period in question, was not adequately addressed in my ruling. See id. at 6. Also, the medical
records and timesheets filed seemed to contradict petitioner’s testimony upon which I attributed
significant weight in finding that petitioner satisfied the severity requirement. See id. at 7-9.
Respondent further cited my misidentification of witness statements as sworn affidavits. Id. at 10.
Petitioner filed a Response to respondent’s Motion for Reconsideration, urging the Court
to deny respondent’s Motion. Response to Motion for Recons. at 6, ECF No. 69. Petitioner cited
respondent’s failure to provide any reason for the Court to undertake reconsideration and argued
that reopening the severity issue would improperly raise petitioner’s burden. Id. More specifically,
petitioner submitted that “none of the ‘twenty (20)’ medical visits,” documented in Petitioner’s
Exhibit 23 “are relevant to this Court’s ultimate decision.” Id. at 4. Further, petitioner argued that
the Ruling was supported by the record as “medical records submitted after the hearing do not
change the record” and because “the time sheets do not directly contradict petitioner’s testimony.”
Id. at 4-5. Addressing the misidentification of witness statements as sworn affidavits, petitioner
argued that the witness statements offered were certified and appropriately considered in the Fact
Ruling. Id. at 6.
On November 5, 2019, I granted respondent’s Motion for Reconsideration. Order, ECF
No. 70. In considering the papers filed by both parties and my initial Ruling, I agreed that some
evidence in the record was not afforded the weight it should have been given. Further, the
inconsistency between petitioner’s testimony and what is reflected in her timesheets was not
sufficiently addressed. These issues warranted a renewed analysis of the record in its entirety. See
Scheduling Order, ECF No. 71.
Following a status conference on November 15, 2019, an Order was issued for petitioner
to file additional evidence supporting the severity requirement. Scheduling Order, ECF No. 71.
Petitioner was to specifically address all her medical visits documented in Exhibit 23 when she
testified to not receiving care for her alleged vaccine-related shoulder injury because she could not
afford the costs for further treatments. Id. at 2.
Petitioner filed additional medical records in February of 2020 from the UW Health Sports
Medicine Clinic and her primary care practice, Crossing Rivers Health. Pet. Ex. 24, ECF No. 73;
Pet. Ex. 25, ECF No. 75. Petitioner filed a supplemental affidavit on April 13, 2020 to revise and
clarify the testimony she provided at the hearing. Pet. Ex. 26, ECF No. 79.
Respondent filed a status report on May 13, 2020, advising that the additional evidence
submitted did not alter his position and requesting a status conference to discuss further
proceedings. ECF No. 80.
Another status conference was held on June 18, 2020. The decision of Kirby v. Sec’y Health
& Human Servs., upon which respondent relied, was discussed. The then-recent Claims Court
opinion held that petitioner’s lay testimony, without the support of contemporaneous corroborating
5
medical records, was insufficient to satisfy the six-months severity requirement4. 148 Fed. Cl. 530(2020), reversed, 997 F.3d 1378 (Fed. Cir. 2021). Scheduling Order, ECF No. 81. Petitioner was
directed to secure any additional evidence she could provide supporting the severity requirement.
Id. at 2.
Following the filing of additional medical records and a supplemental affidavit from
petitioner, the parties were ordered to file briefs addressing the severity requirement by January
19, 2021. Pet. Ex. 27, ECF No. 82; Pet. Ex. 28, ECF No. 83; Non-PDF Order, issued Oct. 19, 2020.
On January 19, 2021, petitioner filed her brief. Brief, ECF No. 90. Primarily, petitioner
states that the medical records alone provide sufficient evidence, specifically asserting:
In sum, we have a prescription for pain medication to treat Connie’s shoulder pain
on July 6, 2013. We have a refill of that prescription on April 3, 2014, 9-months
later. Then the next medical record we have in this case notes a left shoulder limited
range of motion December 3, 2014. Connie has met the severity requirement based
on the medical record alone.
Id. at 10. Additionally, petitioner argues that the witness statements from petitioner’s boss, Todd
Fischer, are credible and should be credited as affidavits because the witness used the language,
“I, Todd Fischer, do swear and affirm the following,” though there is no specific perjury language.
Id. at 12.
Respondent filed a Motion to Dismiss and a Cross-Motion for Findings of Fact addressing
the severity requirement. (“Resp. Cross-Mot.”) ECF No. 91. Respondent argues that petitioner has
failed to provide sufficient evidence to establish that her alleged injury persisted for at least six
months. Id. at 9. Specifically, respondent submits that there is not preponderant corroborating
evidence, only “three affidavits…oral testimony…and three unsworn statements from two other
witnesses.” Id at 9-10. Respondent analogizes the instant matter to Kirby v. Sec’y Health & Human
Servs.,5148 Fed. Cl. 530 (2020), reversed, 997 F.3d 1378 (Fed. Cir. 2021). See id. at 11.
Respondent also urges the Court to disregard the unsworn witness statements as they appear to
lack foundation and are inconsistent with petitioner’s statements. See id. at 16-17. Respondent
further notes that petitioner’s own testimony and recollection are inconsistent with the documented
record. See id. at 18-19. The deadline for petitioner to respond to respondent’s Motion to Dismiss
was suspended until further notice so that the severity requirement could first be determined.
Scheduling Order, ECF No. 92.
4
Discussed in further detail below, Kirby has since been reversed by the Federal Court of Appeals specifically on the
issue of the severity requirement and the evidence thereof. The Federal Circuit held that the Special Master’s finding
that Ms. Kirby’s injury lasted more than six months was not arbitrary or capricious because a “reasonable fact finder
could conclude that Ms. Kirby’s testimony is not inconsistent with her medical records.” Kirby v. Sec’y Health &
Human Servs., 997 F.3d 1378, 1384 (Fed. Cir. 2021). The Special Master relied upon “Ms. Kirby's lay testimony,
corroborating documentation, and expert testimony… Ms. Kirby testified that she continued her home exercises until
her symptoms went away, which was “well over a year”… Evidence of record corroborates Ms. Kirby's testimony.”
Id. at 1381.
5
Now reversed as mentioned above. Ibid.6
The record is now ripe6 for a new fact ruling on the issue of whether petitioner’s record
establishes the severity requirement by a preponderance of evidence.
III. Legal Framework
A. Overall Fact-Finding Framework
The process for making determinations in Vaccine Program cases regarding factual issues
begins with analyzing the medical records, which are required to be filed with the petition. §
11(c)(2). Medical records created contemporaneously with the events they describe are generally
considered to be more trustworthy. Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525,
1528 (Fed. Cir. 1993); but see Kirby v. Sec’y of Health & Human Servs., 993 F.3d 1378, 1382-83
(Fed. Cir. 2021) (clarifying that Cucuras does not stand for proposition that medical records are
presumptively accurate and complete). While not presumed to be complete and accurate, medical
records made while seeking treatment are generally afforded more weight than statements made
by petitioner after-the-fact. See Gerami v. Sec'y of Health & Human Servs., No. 12-442V, 2013
WL 5998109, at *4 (Fed. Cl. Spec. Mstr. Oct. 11, 2013) (finding that contemporaneously
documented medical evidence was more persuasive than the letter prepared for litigation
purposes), mot. for rev. denied, 127 Fed. Cl. 299 (2014). Indeed, “where later testimony conflicts
with earlier contemporaneous documents, courts generally give the contemporaneous
documentation more weight.” Campbell ex rel. Campbell v. Sec’y of Health & Human Servs., 69
Fed. Cl. 775, 779 (2006); see United States v. U.S. Gypsum Co., 333 U.S. 364, 396 (1948).
Despite the weight afforded medical records, special masters are not bound rigidly by those
records in determining facts such as the onset of a petitioner’s symptoms. Vallenzuela v. Sec’y of
Health & Human Servs., No. 90-1002V, 1991 WL 182241, at *3 (Fed. Cl. Spec. Mstr. Aug. 30,
1991); see also Eng v. Sec’y of Health & Human Servs., No. 90-175V, 1994 WL 67704, at *3 (Fed.
Cl. Spec. Mstr. Feb 18, 1994) (explaining that § 13(b)(2) “must be construed so as to give effect
to § 13(b)(1) which directs the special master or court to consider the medical record...but does not
require the special master or court to be bound by them”); see also Burns v. Sec'y of Health &
Hum. 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). There are situations in which compelling oral testimony may
be more persuasive than written records. See Campbell ex rel. Campbell v. Sec’y of Health &
Human Servs., 69 Fed. Cl. 775, 779 (2006). When witness testimony contradicts medical records,
such testimony must be consistent, clear, cogent, and compelling to be persuasive. See Sanchez v.
Sec’y of Health & Human Servs., No. 11-685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr.
Apr. 10, 2013) (vacated on other grounds, Sanchez by & through Sanchez v. Sec’y of Health &
Human Servs., No. 2019-1753, 2020 WL 1685554 (Fed. Cir. Apr. 7, 2020), review denied,
6
Respondent cited the Court of Federal Claims’ reversal in Kirby in both his Motion for Reconsideration and in his
Cross-Motion for Findings of Fact addressing the severity requirement. However, Kirby was appealed in July of
2020, after respondent’s Motion for Reconsideration had been granted. Given the significant relevance, this matter
was held until the Circuit’s decision was issued in August of 2021, which reversed the Court of Federal Claims’
reversal and reinstated the Special Master’s Decision.
7
Sanchez by & through Sanchez v. Sec'y of Health & Hum. Servs., 152 Fed. Cl. 782 (2021)) (quoting
Blutstein v. Sec’y of Health & Human Servs., No. 90-2808V, 1998 WL 408611, at *85 (Fed. Cl.
Spec. Mstr. June 30, 1998)); see, e.g., Stevenson ex rel. Stevenson v. Sec’y of Health & Human
Servs., No. 90-2127V, 1994 WL 808592, at *7 (Fed. Cl. Spec. Mstr. June 27, 1994) (crediting the
testimony of a fact witness whose “memory was sound” and “recollections were consistent with
the other factual evidence”). Special masters may also consider other types of evidence, such as
unsworn statements, on the grounds that the Vaccine Program was designed to have “flexible and
informal standards of admissibility of evidence.” 42 U.S.C. § 300aa-12(d)(2)(B); see also Munn
v. Sec’y of Health & Human Servs., 970 F.2d 863, 873 (Fed. Cir. 1992).
On the whole, a special master’s fact findings are to be upheld when the special master’s
evaluation is evidence-based and not wholly implausible. See Colon v. Sec’y of Health & Human
Servs., 156 Fed. Cl. 534 (2021).
B. Severity Requirement
The only question here is whether petitioner satisfied the severity requirement. The
Vaccine Act requires petitioner to show by preponderant evidence that she “suffered the residual
effects or complications of such illness, disability, injury, or condition for more than 6 months
after the administration of the vaccine.” 42 U.S.C. § 300aa-11(c)(1)(D)(i); see Song v. Sec'y of
Dep't of Health & Human Servs., 31 Fed. Cl. 61, 65-66 (1994), aff'd, 41 F.3d 1520 (Fed. Cir. 2014)
(noting that a petitioner must demonstrate the six-month severity requirement by a preponderance
of the evidence). A petitioner must offer evidence that leads the “trier of fact to believe that the
existence of a fact is more probable than its nonexistence.” Moberly v. Sec’y of Health & Human
Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations omitted). Finding that petitioner has
met the severity requirement cannot be based on petitioner’s word alone, though a special master
need not base their finding on medical records alone. See § 13(a)(1); see Colon v. Sec’y of Health
& Human Servs., 156 Fed. Cl. 534, 541 (2021).
In Kirby v. Sec’y Health & Human Servs., the special master’s finding that Ms. Kirby’s
injury lasted for more than six months was upheld by the Circuit. 997 F.3d 1378 (Fed. Cir. 2021)
(reversing Kirby v. Sec’y Health & Human Servs., 148 Fed. Cl. 530 (2020), after the Claims Court
found the special master erred in his severity finding). Ms. Kirby’s medical records only
documented two months of persisting symptoms after vaccination. Her records were silent
thereafter for two years regarding shoulder pain. However, the special master found the following
sufficient to overcome the silence in the contemporaneous medical records: 1) petitioner’s
testimony that she continued home exercises with her home exercise instruction sheets, 2)
petitioner’s later report to her nurse practitioner about ongoing shoulder pain that began after a
vaccination two years ago, and 3) expert testimony of intermittent pain consistent with petitioner’s
specific shoulder injury. Based on that evidence, the special master found that petitioner satisfied
the severity requirement. Kirby, 997 F.3d 1378, 1382. In upholding the special master’s decision,
the Circuit noted that the Claims Court incorrectly found the silence in the medical record as
undermining petitioner’s testimony. See id. Specifically discussing the presumption that medical
records are accurate and complete, originating from an interpretation of Cucuras, the Circuit
clarified:
8
Cucuras stands for the unremarkable proposition that it was not erroneous to give
greater weight to contemporaneous medical records than to later, contradictory
testimony. We did not hold that medical records are presumptively accurate and
complete. Nor did we state that when a person is ill, he reports all his problems to
his doctor, who then faithfully records everything he is told. We reject as incorrect
the presumption that medical records are accurate and complete as to all the
patient’s physical conditions.
Id. at 1382-83. The Circuit held that a reasonable fact finder could find that petitioner’s testimony
of ongoing pain did not conflict with the records as the records are also silent about the
nonexistence of such symptoms. Id. at 1383. Further, the Circuit acknowledged that the silence in
the records could be explained by the fact that petitioner had exhausted all available treatment. Id.In sum, special masters may consider the whole record in evaluating whether there is
preponderant evidence for the severity requirement and may find the severity requirement satisfied
even if a petitioner’s medical records for the alleged injury is not continuous for the six months
following the injury. See Kirby, 997 F.3d 1378. However, there must be evidence beyond
petitioner’s word alone, such as other corroborating records or reports, to establish the severity
requirement by a preponderance of evidence. See Colon, 156 Fed. Cl. 534.
IV. The Factual Record
A. Testimony and Statements from Petitioner and Witnesses
1. Affidavit and Testimony of Constance Kohl at Hearing
Petitioner began working at Fischer Dairy Farm (“Fischer”) in February of 20117. Tr. 79.
Petitioner affirmed that prior to her vaccination on June 29, 2013, she was healthy but had
suffered minor injuries on the job, including a broken nose and minor back pains, and had a history
of hypertension and asthma. Pet. Ex. 11 at 1. Petitioner was single and had no children. Id. She
had a horse and enjoyed trail riding. Tr. 40. She also rescued cats and dogs. Tr. 40.
Petitioner affirmed that she was an experienced dairy laborer on a working farm. Pet. Ex.
11 at 1. She testified that prior to her vaccine injury she was the calf manager at Fischer; her
responsibilities were feeding and caring for the calves. Tr. 7. This included birthing and pulling
calves and cleaning and washing their pens. Tr. 7. She awoke at 4:00 am and arrived at the farm
around 5:00 am; once there, she put milk in the pasteurizer using five-gallon buckets. Tr. 7-8. This
process could take anywhere from 10 to 20 buckets of milk to fill the pasteurizer. Tr. 8. Once the
milk was pasteurized, she had to bottle-feed the baby calves. Tr. 10. Some of the calves also ate
grain, which required lifting 50-pound bags of grain. Tr. 9. Petitioner also had to use a hand cart
to tow 30-gallon barrels of water out to the older calves, who lived in a different barn. Tr. 10.
Feeding the calves usually took three to four hours. Tr. 59. She was charged with the responsibility
of updating all information about the calves into the computer system and making ear tags for the
calves. Tr. 59, 92-93. She frequently checked on the cows to see if any of them were sick or in
7
Petitioner’s boss, Mr. Fischer, wrote that petitioner was hired in 2012. Pet. Ex. 16 at 1.
9
labor. Tr. 59-60. Around noon, petitioner would refill the pasteurizer for the calves’ afternoon
feeding. Tr. 11. Overall, petitioner typically worked 10 to 12 hours per day, seven days per week.
Tr. 55. Petitioner testified that her boss, Mr. Fischer, was very busy and she would see him off and
on, mostly driving by in the tractors or mixers. Tr. 35. If she had a question, she generally called
him. Tr. 35. “[H]e runs around a lot. So most of the time [it] is phone conversation.” Tr. 36
On June 28, 2013, petitioner cut her finger while feeding calves. Pet. Ex. 11 at 1. Her left
index finger swelled and became red, so she went to the emergency room at Gunderson Boscobel
Area Hospital that evening. Id. at 1-2. She was diagnosed with cellulitis of the finger and received
a “DTaP” vaccination in her left deltoid. Id.Petitioner recalled that night, “around midnight,” she awoke with severe excruciating pain
in her entire left arm starting at the shoulder. Pet. Ex. 11 at 2; Tr. 15, 54. She could not lift her arm
or push with it; she had to keep her arm straight and could not use her forearm. Tr. 16, 34, 35. She
was unable to work or change her clothes the next day due to pain. Pet. Ex. 11 at 2. She attempted
to go to work on June 30, 2013 but was only able to check the calves for two hours and could not
lift anything with her left arm due to pain. Id. Petitioner recalled receiving the Tdap vaccine on a
Friday and being unable to work for the rest of the weekend. Tr. 53-54.
According to the petitioner, her pain became progressively severe; she could not move her
arm or sleep because of the pain. Pet. Ex. 11 at 2; Tr. 17. She recalled visiting her chiropractor,
Dr. Jones on July 3, 2013 for her regular maintenance appointment for her back. Tr. 16. She
explained that she had regular appointments for her back because her work was physical. Tr. 16.
She did not see him for her shoulder. Tr. 16. Petitioner described her treatments with Dr. Jones.
He used a “standup” table; she would stand against the table, Dr. Jones would lower the table down
and perform adjustments, the table would stand up again, she would turn around, and the table
would lower down again for Dr. Jones to adjust her. Tr. 33. Dr. Jones typically checked her back,
neck, and hips, but not her shoulders. Tr. 31-32. He did not use her arms for adjustments. Tr. 33.
She explained the only time that Dr. Jones adjusted her shoulders was after she was bucked off her
horse, and her right shoulder “popped.” Tr. 32. He made sure her shoulder was in place but
otherwise did not treat her shoulders. Tr. 32.
Petitioner stated that on July 6, 2013, she returned to the emergency room for her arm pain
and was prescribed Toradol and Flexeril. Pet. Ex. 11 at 2; Tr. 63. She was told she had a vaccine
reaction. Tr. 19.
Petitioner affirmed that her pain continued, and she presented to her primary care physician
who prescribed naproxen and a sling. Pet. Ex. 11 at 2. She testified that Dr. Grunwald referred her
to Dr. Perpich, an orthopedist, but “[i]t took a long time to get the appointment.” Tr. 18-19. Dr.
Perpich told her that she had “frozen shoulder8 syndrome from having the vaccine in [her] bursa.”
Tr. 24. She recalled Dr. Perpich referring to her condition as impingement syndrome.9 Tr. 24-25.
8
The formal medical term for “frozen shoulder” is adhesive capsulitis, which is not what Dr. Perpich diagnosed
petitioner with; he diagnosed petitioner with impingement syndrome. See Pet. Ex. 4 at 1-2.
9
Impingement syndrome is a type of overuse injury with progressive pathologic changes resulting from mechanical
rubbing or pressure. Impingement syndrome, DORLAND’S at 1834.
10
Petitioner did not know if there was a difference between bursitis and impingement syndrome. Tr.
30.
When asked why she did not seek additional care for her shoulder after her appointment
with Dr. Perpich, petitioner explained that her employer did not offer health insurance and she
“didn’t want any more medical bills.” Tr. 67, 79-80. She made about $10 per hour and there was
no overtime or holiday pay. Tr. 59, 89. On average, she made about $400 per week before taxes.
Tr. 89. When she saw Dr. Grunwald, she paid “what [she] could” out of pocket. Tr. 84-85. She
pays Dr. Jones about $40 per visit. Tr. 28. She also affirmed that her PCP and Dr. Jones were
“willing to work with me on the payments.” Pet. Ex. 26 at 1.
Petitioner stated she did not return to Dr. Perpich after the first visit when he administered
the steroid injection because she felt that it did not help and she “didn’t want to pay for another
injection that wasn’t working.” Tr. 26-28, 67. “…I didn’t have the money to…keep going for
injections that [weren’t] helping, and so I just tried to do what I could do and hop[e] it got better
and I didn’t have to go for a surgery that I couldn’t afford.” Tr. 27. In her supplemental affidavit,
dated April 9, 2022, petitioner affirmed that the visit and steroid injection cost her $416.48, which
went into collections because she could not pay the bill. Pet. Ex. 26 at 1. She decided to live with
it. When it was suggested by other medical providers that petitioner should see an orthopedist
again, she stopped mentioning her shoulder to them as she felt there was nothing she could do—
“the situation with my shoulder was hopeless and so why would I bring it up again?” Id. at 1-2.
Upon returning to work, petitioner told her boss she “wasn't able to do, you know, anything
with my left arm.” Tr. 36. Mr. Fischer, “… said just as long as everything’s covered…as long as
somebody did the work…that’s all that mattered.” Tr. 37-38. No accommodations were offered by
Mr. Fischer though “he had a couple other people, you know, like doing the bedding and stuff that
I had—that I needed two arms for…” Tr. 38. She testified that she could not lift the five-gallon
buckets to fill the milk pasteurizer or the 50-pound bags of grain to feed the calves. Tr. 12. Her co-
worker, Mr. Paulus had to do those tasks instead. Tr. 12, 36, 56-57. Petitioner stated that Mr.
Paulus always worked the morning with her but did not work in the afternoons so she had different
coworkers in the afternoons. Tr. 11-12, 56. Because she had difficulty with her tasks, Mr. Paulus
had to stay “somewhat later” to assist her, though just in the mornings. He helped her for “four to
five or six” hours depending on the work though he never stayed past noon. Tr. 57. He usually
worked only from 5am until 10 or 11am the latest. Tr. 56. Petitioner stated she worked three or
four hours less a day at first, and not a “full, regular” shift until “probably spring of 2014.” Tr. 54.
She did not return to ten to twelve-hour days until spring 2014. Tr. 55. When respondent’s counsel
pointed out that her timesheets did not reflect that she worked significantly less hours following
her vaccination, she stated, “there were some days following my injury that I did still work 10-12
hour days as coverage was needed, but I was not able to complete all the tasks that I would usually
perform.” Pet. Ex. 26 at 3. Petitioner stated it was not until January or February of 2014, she was
able to start using her lower arm again, but she still could not lift anything heavy. Tr. 13.
Petitioner recalled Easter Sunday, April 20, 2014, because she had to work alone. Tr. 13-
14. “[N]obody else was available to work, so I did the chores myself. Nobody helped that day…”
Tr. 13-14. Everyone else was off for the holiday. Pet. Ex. 11 at 2. She detailed her inability to use
her left arm to dump five-gallon buckets of milk and how she struggled to dump them into the
11
pasteurizer with only her right arm. Pet. Ex. 11 at 2. She described dumping the milk a quarter of
a pail at time to accommodate for her arm. Tr. 14. Petitioner stated that it was the summer of 2014
before she “was really doing a lot more” with her arm. Tr. 14.
After the hearing and in response to respondent’s counsel who pointed out that Mr. Paulus’s
time sheets documented his working Easter of 2014, petitioner submitted a supplemental affidavit
affirming she did not mean to say she was working alone the entire day. She meant nobody worked
with her that afternoon, but Dennis worked with her in the morning. Pet. Ex. 26 at 2. “As I testified,
Dennis would work with me in the mornings and some afternoons. On the day in question, Dennis
did work with me in the morning, but because it was Easter there was nobody working with me
that afternoon.” Pet. Ex. 26 at 2.
Petitioner affirmed that one of the benefits of working on a farm is the ability to ride horses.
Pet. Ex. 11 at 3. She affirmed due to the pain in her left arm, she could not ride her horse because
she could not lift the saddle up with one arm and needed two hands to ride with the reins; she
testified she “didn’t ride for probably over a year.” Tr. 40 (emphasis added). Initially, she recalled
not being able to ride again until the fall of 2014. After respondent’s counsel presented her with
her Facebook post showing her sitting on “Butterscotch” in September 2013 and another post about
a trail ride on a different horse in April 2014, petitioner stated that Butterscotch was a young horse
and not “broke to ride” so she may have sat on him while someone held him, but never rode him.
She walked him with her right arm. Tr. 40, 61-62. She did not recall being able to ride until October
of 2014 but agreed that if her Facebook post showed her riding in April of 2014, then she must
have ridden. Tr. 62. “I thought it was October, and maybe it was April. But I know it wasn’t right—
I didn’t ride anything after I was injured.” Tr. 62. She also clarified that the ride in April of 2014
would have been on a “broke” horse, not a two-year-old unbroken horse. Tr. 62.
Respondent’s counsel asked if petitioner may have confused the events of her 2013 left
shoulder injury following the vaccination with her 2016 right shoulder injury. In her supplemental
affidavit petitioner responded to this question with “[c]omparing the two would be like comparing
apples to oranges, the pain was very different, and I do not believe that I confused the two nor the
events surrounding them.” Pet. Ex. 26 at 2. She highlighted that her recovery from the 2016 injury
included expenses paid by worker’s compensation, such as physical therapy. Id.Petitioner stated working through pain is typical for someone who works on a farm. Tr. 77.
She worked for a year and a half with a torn meniscus, on her feet all day, because she could not
afford to get it fixed. Tr. 77-79. She was finally able to afford knee surgery in March of 2017, after
learning about and qualifying for a program in a different county, Grant County, which covered
part of the surgery cost. She learned of the program in 2017. Tr. 77, 81-82. She further affirmed in
her supplemental affidavit that she qualified for Badger Care, her state’s Medicaid program, in the
fall of 2019 and immediately sought treatment for her shoulder thereafter. Id. at 2.
2. Letters and Affidavit from Todd Fischer
Mr. Fischer, petitioner’s employer, provided a letter filed on December 16, 2016 in which
he wrote:
12
In June 2013 my employee Connie Kohl had received a tetanus shot for something
that was not work related. It affected her left arm making it difficult to use. I was
able to adjust her duties by having others do what she wasn’t able to do. She missed
some work days, and then worked as much as she could with the help of the other
employees.
Pet. Ex. 8 at 1.
On December 23, 2016, another letter from Mr. Fischer was filed in which Mr. Fischer
stated:
In June 2013, my employee Constance Kohl had received a tetanus shot for
something not work related. Following her vaccination, she complained of injury
of her left arm. She experienced difficulties performing work duties that involved
use of her left arm, which I adjusted by having others do what she could not. As a
result of her left arm injury, many of Ms. Kohl’s work duties had to be adjusted
past January 1, 2014.
Pet. Ex. 10 at 1.
On October 31, 2017, petitioner filed an “Affidavit of Todd Fischer.” Pet. Ex. 16. The
document opens with: “I, Todd Fischer, do swear and affirm the following…” Id. Mr. Fischer
affirmed he owned Fischer Dairy Farms, which had multiple dairy farms in the state of Wisconsin.
Id. at 1. He employed petitioner and had employed her since 2012. Id. While petitioner lived and
worked on Mr. Fischer’s farm in Glen Haven prior to her vaccination, she currently lived and
worked on the farm in Boscobel.10 Id.According to Mr. Fischer, petitioner received a “DTaP” vaccine in her left arm on June 28,
2013. Id. She called into the office on June 29, 2013 to report that she could not come to work due
to pain in her arm and inability to dress herself. Id. She reported to work on June 30, 2013 for part
of the day to check on the baby calves. Id. She returned to work full time on July 1, 2013 but was
only able to complete limited tasks. Id.According to Mr. Fischer, prior to her vaccination, petitioner was responsible for birthing,
feeding, administering shots to, and tagging calves. She also had to carry, scoop, and dump grain
buckets, carry milk pails two at a time, and log reports into the computer. Id. After her vaccine,
petitioner received help from her coworker, Dennis Paulus, for all tasks that required heavy lifting
or use of her left hand. Id. at 2. She was unable to carry grain buckets or birth calves and needed
assistance administering shots to larger calves. Id. However, because petitioner worked with infant
calves from nursing to weaning, she could still perform many of her work duties. Id. She could
10
While petitioner lived on one of Mr. Fischer’s farm as her place of residence, it appears that petitioner would
travel to different farms to perform her main work responsibilities. “In 2013, I was living in Fennimore, which was
26 miles from one farm to the other. The farm I worked at and lived at, the calves were all at the other farm, so I
drove every day from Fennimore. And then in 2015, he bought another farm five miles from work, and then I moved
there in 2015.” Tr. 94.
13
still scoop the grain, although coworkers had to help carry the buckets, carry milk pails in her right
hand, feed calves with one hand, and log reports into the computer. Id.According to Mr. Fischer, petitioner required help with her duties “until well after January
1, 2014.” Id. Mr. Fischer added that it was not until after Valentine’s Day, February 14, 2014, that
petitioner could carry milk pails with both arms to the pasteurizer and help with birthing the calves.
Id. Mr. Fischer wrote that petitioner was a valued employee and he accommodated her as needed
until late winter 2014. Id. According to Mr. Fischer, following February 14, 2014, petitioner was
able to resume most of her normal duties using her left arm. Id.Mr. Fischer signed the statement and a third party, Anna Isabel Bautista, signed the
statement as a witness.
3. Letter from Dennis Paulus
Mr. Paulus was petitioner’s co-worker. Pet. Ex. 9 at 1. Mr. Paulus submitted a letter dated
September 7, 2016 and filed on December 16, 2016, stating that he worked with petitioner “from
June 28, 2013. And did her duty’s (sic) and mine. Lifting and carrying of product on the farm,
milk, grain and wate (sic).” Id. Mr. Paulus passed away in September of 2018 and thus was unable
to testify. Tr. 8.
4. Letters from Julie Fischer
On June 4, 2018, petitioner filed a letter from Julie Fischer in response to questions raised
by the court. Pet. Ex. 18 at 1. Ms. Fischer submitted that information provided by Todd Fischer
was based on his memory, there were no phone records or text messages from employees kept,
and no other information except time sheets. Id.According to Ms. Fischer, petitioner “was told to do what she could and our other
employees picked up her slack. We don’t monitor what is done – they just do their job.” Id.B. Other Evidence
Petitioner filed a letter from Worker’s Compensation confirming that she did not file any
claims for the year 2013. Pet. Ex. 12 at 1.
Petitioner submitted her yearly payroll earning and deduction statements along with her
W-2s for 2012, 2013, 2014, 2015, and 2016 on July 5, 2017. Pet. Ex. 14. The records do not reflect
any lost income related to the time frame at issue. See id. at 1-3.
On March 20, 2018, petitioner filed a print-out of her Facebook account from March of
2010 through February 27, 2018. Pet. Ex. 17. Petitioner’s Facebook timeline included a post which
appears to be a photo-post with her horse, Carson, a month after her June 28, 2013 vaccination:
“Wednesday, July 31, 2013 at 10:34pm EDT. Carson on our ride tonight.” Id. at 202. Petitioner
also posted about her quarter pony, Butterscotch, whom she had acquired in February of 2013:
“Monday, September 2, 2013 at 10:02am EDT. I sat on butterscotch for the first time, he is such a
14
good horse and he is only two!” Id. at 201. An April 26, 2014 post includes petitioner, her friend
Bill, Butterscotch and Carson:
Saturday, April 26, 2014 at 7:21 EDT. Connie Kohl added 2 new photos.
Butterscotch and Carson!
Saturday, April 26, 2014 at 7:24 EDT. Connie Kohl is feeling proud. Had an
awesome ride, even ride there (sic) the freestall (sic) barn by the cows! Then played
a little!
Saturday, April 26, 2014 at 7:30pm EDT. Bill did too!
Id. at 174. Petitioner’s Facebook posts do not mention any injuries in 2013 or any falls in 2016,
but do mention her osteoarthritis, left knee injections, and arthroscopic knee surgery throughout
2016 and 2017. See id. at 80, 82, 84, 97. Petitioner posted about her having a good work ethic:
“Tuesday, March 17, 2015 at 11:45am EDT. You know I worked every day last week with sinus
infection[,] ear infection, bronchitis, and 103 fever! … must be good work ethic!” Id. at 118.
Petitioner filed her time sheets on June 4, 2018. Pet. Ex. 19. Petitioner’s time sheets show,
with some fluctuations based on the week, that her hours were not significantly reduced following
her vaccine on June 29, 2013, with the exception of the day she called in that she could not work
and the following day she worked for only two hours. Pet. Ex. 19 at 20. The week prior to
petitioner’s injury, she worked just over forty-seven hours. Pet. Ex. 19 at 20. A week after her
vaccination, the week July 7, 2013 – July 13, 2013, she worked nearly forty-seven hours. Id. at 19.
The next week, July 14, 2014 – July 20, 2013, petitioner worked almost fifty hours. Id. at 18-19.
Petitioner worked one-hundred-and-eight hours during the pay period of August 1, 2013 through
August 19, 2013, less than two months after her June 28, 2013 vaccination. Id. at 17. For the pay
period of December 29, 2013 through January 13, 2014, petitioner worked one-hundred-and-
thirteen hours. Id. at 7. Corresponding time sheets two years later show that petitioner worked one-
hundred-and-fourteen hours for the pay period of December 29, 2015 through January 14, 2016.
Id. at 5. Timesheets for most of 2014, including April 2014, were not filed.
Petitioner filed Mr. Paulus’s timesheets. Pet. Ex. 20. His timesheets reflect that he worked
both mornings and afternoons—around three-to-four hours in the morning and three-to-four hours
in the afternoon. See generally Pet. Ex. 20. In the six months prior to petitioner’s vaccine on June
28, 2013, Mr. Paulus generally clocked-in for the morning around 5am, worked between three-to-
four hours, and then clocked-out mid-morning. He then clocked-in for the afternoon around 1pm,
worked between two-to-four hours, and then clocked out. See id. at 20-22. His schedule deviated
from the aforementioned six times and he worked more than nine hours a day six times. Id. at 17-
20. On June 29, 2013, Mr. Paulus worked for over seven hours in the morning and on June 30,
2013, he worked over six hours in the morning. Id. at 17. In the six months following petitioner’s
June 28, 2013 vaccine, Mr. Paulus deviated from his usual morning schedule over twenty times—
clocking-in around 5am, working for three-to-four hours, clocking-out mid-morning, then shortly
thereafter clocking-back in for one-to-two hours before clocking out for lunch. He continued to
clock-in for the afternoon around 1pm. When he clocked-in twice in the morning, Mr. Paulus
worked a total of four-to-six hours in the morning. See id. at 10-17. Mr. Paulus worked more than
nine hours a day twelve times in the six months following petitioner’s vaccination. Mr. Paulus’s
15
timesheet for April 20, 2014, indicated that he worked for three hours in the morning, but not in
the afternoon. Id. at 7.
C. Petitioner’s Medical History
1. Petitioner’s Pre-Vaccination Medical History
Petitioner received primary care from Dr. Ann Grunwald at Great River Medical Clinic (a
part of Crossing Rivers Health). See generally Pet. Ex. 2; see also Pet. Ex. 23. Her history included
a host of unrelated issues. Pet. Ex. 2 at 3, 30; Pet. Ex. 6 at 10-11. Petitioner also had a history of
back issues and degenerative changes of her neck at C4-5 and C5-6 confirmed by x-rays on April
12, 2010, and right cervical radiculopathy11 confirmed by MRI on April 15, 2010 and EMG on
April 27, 2010. Pet. Ex. 5 at 13; Pet. Ex. 4 at 4; Pet. Ex. 2 at 31. In 2011, petitioner was diagnosed
with right wrist tendonitis, early arthritis and degenerative disc disease of the cervical spine,
causing pain in two fingers, for which she took ibuprofen regularly. Pet. Ex. 2 at 1.
On March 8, 2012, petitioner presented to Dr. Grunwald with among other complaints, a
small, non-draining, and non-inflamed cyst of the right upper arm and a slightly raised lesion with
tenderness of the right posterior thigh. Pet. Ex. 2 at 4. Dr. Grunwald diagnosed petitioner with a
low-grade staphylococcal infection and prescribed doxycycline12 along with hydrochlorothiazide13
for her blood pressure and Flagyl.14 Id. at 4-5.
On July 26, 2012, petitioner presented to Dr. Grunwald with complaints of low back pain
and spasms for two weeks, right shoulder pain and neck pain. Pet. Ex. 2 at 6. She had seen the
chiropractor three times in the past week. Id. She was assessed with lower back pain and strain due
to work. Id. She was also noted to have right shoulder bursitis that had been healing over the past
two months with good range of motion. Id.; see also Pet. Ex 7. She was prescribed Flexeril15 and
Hydrocodone/Acetaminophen. Pet. Ex. 23 at 84.
A log-note from Dr. Grunwald’s office on September 12, 2012 reflects petitioner’s phone
call for a refill of Flexeril. Pet. Ex. 23 at 8. The record also reflects that chiropractic care was
helping. Id.On December 11, 2012, petitioner presented to Dr. Grunwald with complaints unrelated to
the issues herein. Pet. Ex. 2 at 8. Services through Grant County were recommended. Id. at 9-10.
She was given refills for other prescriptions including Flexeril. Id.11
Cervical radiculopathy is “radiculopathy of cervical nerve roots, often with neck or shoulder pain; compression of
nerve roots is a common cause in this area” Cervical radiculopathy, DORLAND’S ILLUSTRATED MEDICAL DICTIONARY
1547 (33rd ed. 2020) [hereinafter DORLAND’S].
12
Doxycycline is “a semisynthetic broad-spectrum antibacterial.” Doxycycline, DORLAND’S at 559.
13
Hydrochlorothiazide is “a thiazide diuretic, used for treatment of hypertension and edema.” Hydrochlorothiazide,
DORLAND’S at 867.
14
Flagyl is a trademark name for metronidazole, which is “an antiprotozoal and antibacterial effective against obligate
anaerobes; administered orally and intravaginally in bacterial vaginosis.” Metronidazole, DORLAND’S at 1139.
15
Flexeril is a trademark name for cyclobenzaprine hydrochloride, which is “a compound… used as a muscle
relaxant for relief of painful muscle spasms.” Cyclobenzaprine hydrochloride, DORLAND’S at 450.
16
On January 11, 2013, petitioner returned to Dr. Grunwald for an annual preventative
examination. Pet. Ex. 2 at 11. Her physical examination was normal with normal range of motion
in all extremities noted. Id. at 13. Necessary medications were refilled. Id. at 13.
On March 6, 2013, March 28, 2013, April 15, 2013, May 13, 2013, and June 3, 2013,
petitioner presented to Dr. Jones, for chiropractic “wellness visits”. Pet. Ex. 7 at 3-7. She was
asymptomatic and presented for subluxations.16 Id. at 3. Petitioner was found to have subluxations
with spasm, hypomobility, and end point tenderness at the C3, T3, T4, T8, and L3 vertebrae and
at the sacrum. Adjustments were performed. Id. at 3-7.
On June 28, 2013, petitioner presented to Boscobel Emergency Room with pain, redness
and swelling of the left long finger along the nail that started one day prior. Pet. Ex. 3 at 9. She
was diagnosed with cellulitis of the finger, prescribed Augmentin17 and Epsom salt soaks, and
advised to return Sunday, if her finger grew worse. Id. at 10-11. She was administered the subject
Tdap vaccine in her left deltoid at that time. Id. at 18; Pet. Ex. 1 at 1.
2. Petitioner’s Post-Vaccination Medical History
On July 3, 2013, petitioner presented to Dr. Jones for her wellness chiropractic treatment.
Pet. Ex. 7 at 8. Petitioner was noted to have subluxations with spasm, hypomobility and end point
tenderness at the C3, T3, T4, T8, and L3 vertebrae and at the sacrum, which were adjusted. Id.On July 6, 2013, petitioner presented to Boscobel Emergency Department with left
shoulder and arm pain following a tetanus shot. Pet. Ex. 3 at 1. She reported sharp, aching stiffness
and tingling aggravated by movement and lifting. Id. at 2-3. She had chills and headache with an
upset stomach from the antibiotics she was taking. Id. at 1. She had numbness and tingling of the
left hand. Id. at 4. On examination, she had tenderness, limited range of motion, and pain in the
muscle of the left deltoid. Id. Petitioner was diagnosed with “Bruising/pain s/p Tdap injection”
and prescribed Toradol18 and Flexeril. Id. at 2. Her discharge instructions read: “Reaction to
vaccination, arm pain stiffness bruise, use ice and heat on left arm, alternate.” Id. at 3.
On July 8, 2013, petitioner presented to Dr. Grunwald for pain in her left arm. Pet. Ex. 2 at
14. She reported receiving a painful tetanus shot at urgent care following an infected cuticle 10
days ago, developing a bruise after the injection, and losing the use of her arm. Id. However, she
continued to work on a farm feeding calves with both arms. Id. On examination, she had left arm
pain with movement and pain around the injection site, but no redness or warmth around the site.
Id. at 15. Dr. Grunwald’s assessment was sprains and strains of the shoulder and upper arm,
16
Subluxation means “in chiropractic [medicine], any mechanical impediment to nerve function.” Subluxation,
DORLAND’S at 1761.
17
Augmentin is a trademark name for combination preparations of amoxicillin and clavulanate potassium. Augmentin,
DORLAND’S at 179. Amoxicillin is “a semisynthetic derivative of ampicillin effective against a broad spectrum of
gram-positive and gram-negative bacteria.” Amoxicillin, DORLAND’S at 64. Clavulanate potassium is “a 𝛽-lactamase
inhibitor used in combination with penicillin in treating infections caused by 𝛽-lactamase-producing organisms.”
Clavulanate potassium, DORLAND’S at 364.
18
Toradol is a trademark for preparations of ketorolac tromethamine. Toradol, DORLAND’S at 1910. Ketorolac
tromethamine is “a nonsteroidal anti-inflammatory drug administered… for short-term management of pain.”
Ketorolac tromethamine, DORLAND’S at 971.
17
probably due to injection, but she expressed concern that this could be a reaction to the vaccine
that was not just “strain from administration.” Id. Petitioner was prescribed naproxen,19 provided
a sling for resting her left arm, and told to follow up in five days. Id.On August 5, 2013, petitioner presented to Dr. Jones for wellness chiropractic treatment.
Pet. Ex. 7 at 9. The notes for this visit are identical to those for her previous visits to Dr. Jones.20
Id.On August 8, 2013, petitioner returned to Dr. Grunwald with continued complaints of pain
after Tdap vaccination, especially with movement of the left deltoid and at night. Pet. Ex. 2 at 17.
Petitioner reported that she needed to use her arm to work on the farm. Id. Dr. Grunwald’s
assessment was arm pain from post-Tdap reaction. She spoke with Dr. McNamara “who states he
has seen myositis infection from injection. Rec a surgical consult.” Id. at 18. Dr. Grunwald planned
to speak to Dr. Perpich, an orthopedist, when he was in the office the following day. Id.A log note from Dr. Grunwald the next day, August 9, 2013, notes that she spoke to Dr.
Perpich who agreed to see petitioner on August 15, 2013. Pet. Ex. 23 at 7. She documented that
petitioner was to try gabapentin until petitioner’s appointment with Dr. Perpich. Id.Petitioner presented to Dr. Perpich on August 15, 2013. Pet. Ex. 4 at 1. She was noted to
be a 46-year-old female who handled calves and worked on a farm. Id. at 1-2. She reported a finger
infection seven weeks prior, treated in the emergency room, where she received a Tdap vaccination
in her left shoulder, and suffered substantial pain in the shoulder within five hours of vaccination.
Id. Her pain had somewhat improved but was persistent and troublesome at work. Id. Her shoulder
pain woke her from sleep and caused trouble with overhead use. Id. at 2. On examination, Dr.
Perpich observed 180 degrees of abduction and forward flexion, “75 degrees of external rotation
easily,” slight decrease in strength with external rotation, positive Neer and Hawkins tests, a
positive supraspinatus isolation test, and tenderness around the acromion. Id. The assessment was
impingement syndrome21 of the left shoulder that was more of a bursitis22 type problem, possibly
related to the Tdap injection. Id. Petitioner reported feeling better after a steroid injection into her
subacromial space administered during this visit. Id. However, even after the steroid injection, she
continued to have trouble with adduction. Id. Dr. Perpich suggested a follow-up in six weeks and
repeat injections if needed. Id. Dr. Perpich “anticipate[d] that this should clear up with anti-
inflammatories.” Id. at 3.
Petitioner presented to Dr. Jones for chiropractic wellness visits on September 11, 2013,
September 23, 2013, October 16, 2013, November 18, 2013, December 16, 2013, December 27,
2013, January 15, 2014, March 26, 2014, March 28, 2014, April 4, 2014, April 7, 2014, and April
19
Naproxen is “a nonsteroidal anti-inflammatory drug that is a propionic acid derivative, used in the treatment of pain,
inflammation, osteoarthritis, rheumatoid arthritis, gout, calcium pyrophosphate disposition disease, fever, and
dysmenorrhea and in the prophylaxis and suppression of vascular headache.” Naproxen, DORLAND’S at 1214.
20
It appears that Dr. Jones’ record is an electronic record that repeats itself for each visit. Occasionally but rarely, new
information is added but for the most part the record is repetitious and of little value.
21
Impingement syndrome is a type of overuse injury with progressive pathologic changes resulting from mechanical
rubbing or pressure. Impingement syndrome, DORLAND’S at 1834.
22
Bursitis is “inflammation of a bursa, occasionally accompanied by a calcific deposit in the underlying tendon.”
Bursitis, DORLAND’S at 260.
18
16, 2014. See Pet. Ex. 7 at 10-21. The records for each of these visits were identical to the records
from her previous chiropractor visits. Id.On March 21, 2014, petitioner was seen by Susan McMillan, N.P., who replaced Dr.
Grunwald as petitioner’s primary care physician (“PCP”). She complained of asthma exacerbation,
which was interfering with her sleep. Pet. Ex. 23 at 74. Petitioner reported not taking Flexeril,
Celexa, or Gabapentin at that time. Id.A log-note from the PCP’s office reflects a telephone call on April 3, 2014, requesting a
refill of Flexeril. Pet. Ex. 23 at 6. Petitioner reported that she had been to the chiropractor three
times in the past week but was still having muscle spasms. Id. A refill was prescribed. Id.On September 10, 2014, petitioner presented to Dr. Jones for chiropractic wellness visit.
Pet. Ex. 7 at 22. The record for this visit was identical to the previous chiropractic records. Id. She
returned to him on October 13, 2014 complaining of lumbosacral discomfort which she described
as dull, aching, and mild. Pet. Ex. 7 at 23. Dr. Jones found subluxations with spasm, hypomobility,
and end point tenderness at the C3, T3, T4, T8, L3 vertebrae and the sacrum and performed
adjustments. Id. Palpation of petitioner’s muscles revealed hypertonicity in her right and left upper
thoracic23 areas, right and left mid-thoracic areas, and right and left lower thoracic areas. Id. He
assessed this as an exacerbation, an episode of marked deterioration of her condition due to “acute
flareups of presenting conditions.” Id.On December 3, 2014, petitioner presented to her PCP with complaints unrelated to this
matter. In a review of systems, petitioner reported:
[L]imited range of motion. States this is from a tetanus shot given 1-2 years ago. Needs a
statement for her attorney stating she still has decreased range of motion. Evaluated by Dr.
Perpich initially who recommended PT. Patient reports going through PT24, massage and
“everything.”
Pet. Ex. 23 at 72-73. The record documents a general physical exam with specific findings
regarding a skin tag. Id. at 73. There was no documentation associated with musculoskeletal
examination or range of motion of petitioner’s shoulder. See id. at 72-73. It was recommended that
petitioner attend occupational therapy or return to Dr. Perpich for her shoulder issue. Id. No refill
or medication was prescribed. Id. at 73.
Petitioner presented to her PCP’s office on December 29, 2014, for a urinary tract infection.
Pet. Ex. 23 at 70-71. Arm and shoulder pain were listed as “Current Problems”, however, also
listed were staphylococcal infection and screening for hyperlipidemia, which were not current
issues. Id. at 70.
On January 5, 2015, petitioner presented to her PCP for skin tag removal. Pet. Ex. 23 at
68-70.
23
Thoracic means “pertaining to or affecting the thorax (chest).” Thoracic, DORLAND’S at 1890.
24
Although petitioner reported undergoing PT and massage, no records of physical therapy or massage prior to this
date have been filed. Further, there does not appear to be a referral to physical therapy prior to this reference.
19
On March 18, 2015, May 20, 2015, June 23, 2015, June 26, 2015, June 30, 2015, August
12, 2015, August 19, 2015, and September 9, 2015, petitioner presented to Dr. Jones for wellness
visits. See Pet. Ex. 7 at 24-31.
On October 16, 2015, petitioner presented to the emergency room at Crossing Rivers
Health with complaints of knee pain which also affected her left calf. Pet. Ex. 5 at 39. Petitioner
was diagnosed with a Baker’s cyst.25 Id. at 40. The treating physician ordered a venous doppler
which confirmed a Baker’s cyst. Id. at 44.
Petitioner presented to Dr. Perpich on October 23, 2015 for left knee pain. His impression
was a medial meniscus tear or osteoarthritis and noted that the x-ray taken showed mild medial
joint space narrowing. Pet. Ex. 27 at 3. He recommended an MRI. Id. at 3-4.
On December 14, 2015, petitioner presented to Dr. Jones for her wellness visit. Pet. Ex. 7
at 32. The record for this visit was a repetition of the past records.
On January 28, 2016, petitioner presented to the emergency room at Crossing Rivers Health
with left medial knee pain starting three months ago at work. She reported having seen Dr. Perpich
who ordered an MRI. Pet. Ex. 5 at 53. She followed up with Dr. Perpich for her MRI results on
February 3, 2016, which showed severe changes in the medial compartment with osteoarticular
erosions, in addition to a medial meniscal tear. His impressions were generally osteoarthritis and
meniscus tear. Pet. Ex. 27 at 7. Petitioner received an injection in the left knee. Id.Petitioner presented to her PCP on February 17, 2016 following a fall on February 15,
2016. She had slipped on ice and landed on the right side of her body. Pet. Ex. 23 at 65. She
reported right shoulder, elbow, and right neck pain. Id. X-rays of her neck, ribs, and right shoulder
were ordered. Taking off work was recommended. Id. at 66. The record notes taking off work “is
very difficult for her, she feels guilty.” Id.Petitioner presented to Dr. Jones for wellness visits on February 15, 2016, February 17,
2016, and February 22, 2016. See Pet. Ex. 7 at 33-35. The records for all three dates document her
fall in the past week with injury to the right arm and ribs. Id.On February 24, 2016, petitioner followed-up with her PCP about her ribs, neck, and right
shoulder pain. Pet. Ex. 23 at 63-64. The rib pain had improved but she was advised to avoid lifting
heavy items. She had not followed up with Dr. Perpich due to the cost and no insurance. Id. at 64.
Petitioner presented to Dr. Jones for a wellness visit on March 3, 2016. Pet. Ex. 7 at 36.
She reported feeling better since her fall and broken rib but had been experiencing tightness in the
lumbar spine and wanted treatment before it got worse. Id. On examination, Dr. Jones found
tenderness at the C3, C7, T4, T6, T11, and L5 vertebrae and the left pelvis. Id. Petitioner returned
to Dr. Jones on March 8, 2016, March 18, 2016, March 25, 2016, and April 1, 2016, complaining
25
Baker’s cyst is “a swelling behind the knee, caused by escape of synovial fluid which becomes enclosed in a
membranous sac.” Baker’s cyst, DORLAND’S at 453.
20
of thoracic, thoraco-lumbar, and cervical discomfort described as “dull and aching.” See Pet. Ex.
7 at 37-40. He performed a 3-4 region manipulation. Id.On April 6, 2016, petitioner presented to Dr. Perpich for right shoulder and right-sided
neck pain related to her fall in February of 2016. Pet. Ex. 27 at 10-11. X-rays showed no significant
abnormality though her cervical spine x-rays showed disk space narrowing. Id. at 11. Following
examination, Dr. Perpich wrote: “Neck pain. I do not think there is a whole lot of shoulder
contribution here. I think this is related to cervical degenerative disk disease and an irritation of
that from her accident.” Id.Petitioner presented to Dr. Jones on April 13, 2016 and April 15, 2016. Pet. Ex. 7 at 41-42.
Records from both visits note that petitioner awoke with a sore 5th rib the morning of her
appointments; the remainder of the records read identical to those before it. Id.On April 18, 2016 petitioner presented to her PCP for neck pain that began two months
ago and caused her to decrease her work hours. Pet. Ex. 23 at 61. She was referred to occupational
therapy and given a neck brace. Id. at 62.
On April 19, 2016, petitioner presented for occupational therapy for her neck issues, which
were causing significant difficulty working, participating in recreational activities, driving, lifting
objects and abduction. Pet. Ex. 5 at 67. In the self-reported medical history section, petitioner wrote
that she was seeking therapy for neck pain and circled the back of her neck and the center of her
upper back as the location of her symptoms. Pet. Ex. 23 at 15-16. She noted a fall two months
prior, broken rib and whiplash. Pet. Ex. 5 at 67. She noted that since the fall, her pain continued to
worsen, hindered her performance, and she had to work with a neck brace. Id. Petitioner’s recent
x-rays showed significant cervical degeneration. Id. She was noted to have headaches three to four
times a week, which chiropractic care helped. Id. Both of petitioner’s shoulders were tested with
about 20 degrees of limitation of left shoulder abduction with a notation “this is her norm on both
sides.” Id. at 68. Petitioner’s manual muscle test noted some discomfort and pain during left
shoulder abduction and “fuzziness” in the fingers and hands when raising her upper extremities
past 90 degrees. Id. Petitioner was deemed an excellent candidate for therapy and myofascial
release; however, her financial situation was a hinderance to attending therapy regularly. Id. at 68.
Myofascial release therapy was initiated and completed for the paraspinal, intercostal, scapular,
upper trapezius, occipital, and cervical areas. Id. at 69. Petitioner was advised to attend as much
therapy as she could afford and instructed on daily home exercises to complete. Id.Petitioner presented to physical therapy for her neck issues on April 19, 2016, April 25,
2016, April 29, 2016, May 2, 2016, May 5 2016, May 9, 2016, May 12, 2016, and May 16, 2016.
See Pet. Ex 23 at 17-20. The May 16, 2016 appointment records indicate that petitioner had shown
significant improvement and was to be discharged at the next visit; petitioner did not show for that
next visit. Id. at 20.
On June 20, 2016, July 26, 2016, August 23, 2016, and September 12, 2016, petitioner
presented to Dr. Jones for wellness visits. See Pet. Ex. 7 at 43-46. The records were identical to
the April 2016 record. Id.21
In October of 2016, petitioner reported left knee pain after running to help her dog after
her dog was hit by a car. Pet. Ex. 23 at 58. Petitioner suffered a dog bite when trying to rescue the
dog and presented to the emergency department for care. She was prescribed antibiotics for her
dog bite and advised to follow up with her PCP if her dog bite worsened. Id. at 92-95.
Petitioner underwent knee surgery on her left leg on March 22, 2017 at Grant Regional
Health Center. Pet. Ex. 23 at 29.
In a note dated September 2, 2017, petitioner’s chiropractor, Dr. Jones wrote that he had
treated petitioner for several years for recurring back pain generally caused by overuse from her
work. Pet. Ex. 21 at 1. Dr. Jones noted that there were times when a specific injury made her seek
treatment, but petitioner typically presented for routine preventative care, without specific
complaints. Id. The appointments were quick, fairly unremarkable and if there were oddities in her
subjective information or concerns, they are documented. Id. Dr. Jones wrote at the time of
petitioner’s vaccination, she presented for regularly scheduled visits for minor back complaints,
neck complaints, and headaches, which were common for her. Id. He remembered petitioner
mentioning her shoulder hurting during the August 5, 2013 visit that she attributed it to her tetanus
vaccine. Id. He recalled recommending that she follow-up with a professional involved in the
administration of the injection regarding her symptoms. Id. After that date, all of petitioner’s visits
were back and neck related. He did not address her shoulder. Id. Dr. Jones concluded that he could
not confirm or deny shoulder pain because their clinical encounters dealt with spinal related issues.
Id.On January 9, 2018, petitioner called to request a refill of Flexeril, which was last refilled
on August 22, 2017 for back pain. Pet. Ex. 23 at 27.
On October 9, 2018, petitioner followed up with her PCP for chronic neck and back pain.
Id. at 38. Petitioner was again prescribed Flexeril for her neck and back. Id. at 39. She requested a
Flexeril refill on October 29, 2018. Id. at 40.
She returned to her PCP on December 13, 2018 for right knee pain, which had been ongoing
for a year and worsened in the past week. She underwent x-rays of her right knee, osteoarthritis
was the assessment, and a lidocaine injection given. Id. at 23, 49.
On January 25, 2019, petitioner presented for diffuse arthralgia. Pet. Ex. 23 at 51. She
underwent rheumatoid arthritis screening on January 26, 2019. Id. at 21, 52. She was also referred
to and attended a pain management consult on January 29, 2019 for her sacroiliac (lower back and
buttock) pain. See id. at 53-55. She received steroid injections in her right sacroiliac joint on
January 29, 2019 and February 8, 2019. Id. at 55-57. Her active medications included: Celexa,
Flexeril, Benadryl, and Motrin. Id. at 55.
Petitioner followed-up at her PCP for ongoing neck pain on April 23, 2019, requesting a
refill of Flexeril. Pet. Ex. 25 at 1. The PCP noted “… chronic myositis of the neck region and
lumbar region. She does find that cyclobenzaprine does help. She also goes to the chiropractor.”
Id. Flexeril was refilled for her muscle strains/spasms in her upper back and neck. Id. 3. Shoulder
22
pain was not noted though petitioner’s left knee, cervical, muscles aches and strains, and sacroiliac
issues were. Id. at 1.
On May 8, 2019, petitioner presented to her primary care clinic for knee pain. Pet. Ex. 25
at 3. She reported that the steroid injection in December of 2018 provided significant relief, but
the pain had returned and was interfering with chores on the farm and sleep. Id. at 3-4. Petitioner
received another steroid injection in her right knee. Id. at 4.
The following month, on June 24, 2019, petitioner returned to her primary care clinic for
hip pain on the right without injury or falls. Pet. Ex. 25 at 5. She reported that the pain was different
from her sacroiliac joint pain and caused her to walk with a limp. Petitioner was assessed with a
trochanteric bursitis of the right hip and received a steroid injection in the right greater trochanter.
Id.On October 28, 2019, petitioner presented to Research Park Sports Medicine and Research
Park Radiologic Services for “Mobility Problem of the Left Shoulder (After receiving a tetanus
injection 6/2013).” Pet. Ex. 24 at 10. X-rays for “left shoulder pain, unspecified chronicity” were
performed. Id. at 3-4. Dr. Erin Hammer found “no acute fracture or dislocation. Mild hypertrophy
of the left acromioclavicular joint. Left glenohumeral joint space is preserved. Type 1 acromion.”
Id. at 5. The diagnoses were “left shoulder pain, unspecific chronicity (primary),” “adhesive
capsulitis of left shoulder,” and “rotator cuff syndrome, left.” Id. at 9. Petitioner’s current
medications were noted to be Celexa, Flexeril, Benadryl, and Motrin, and the medications were
refilled. Id. at 1. Petitioner provided a history of:
shoulder pain…ongoing for about 6 years. Connie reports that she had no previous
shoulder problems until 6 years ago when she received a tetanus immunization into
the left shoulder joint…Her shoulder pain and loss of function followed a very
typical adhesive capsulitis past where it was quite painful for about 6 months. She
lost her range of motion for a year or more and then slowly her range of motion
started to improve…Pain today is rated 1 out of 10; at its worst, it is a 10 out of 10.
Pain is sharp. She continues to note loss of range of motion and notes that her pain
is worse at the ends of her range of motion… At the time of her injury, she was
uninsured and so was (sic) had not pursued other option for treatment.
Id. at 11. On examination, range of motion was noted to be “quite good” though about 60 degrees
of internal and external rotation was noted. Id. at 12. Some tenderness was noted over the biceps
tendon and rotator cuff, and some pain with resisted external rotation. Id. Dr. Hammer’s
impression included the following:
[Ms. Kohl] has persistent loss of motion…some of her discomfort is from chronic
rotator cuff tendinopathy related to pronged immobilization from the adhesive
capsulitis. She likely has dysfunction of her cuff causing at least some discomfort in
addition to the continued loss of range of motion.
Id. at 12. A corticosteroid injection and physical therapy was ordered.26 Id.26
No records related to an injection or physical therapy were not filed.
23
IV. Discussion and Findings of Fact
There is no doubt that petitioner suffered left shoulder injury following receipt of the Tdap
vaccine in June of 2013. The issue here is not the existence of an immediate injury but petitioner’s
claim that the injury continued in excess of six months, a requirement for a claim to be
compensable in the Vaccine Program. § 300aa-11.
A. The Parties’ Arguments
1. Petitioner Submits that the Severity Requirement has been Satisfied
On January 19, 2021, petitioner filed a “Brief in Support of Petitioner’s Satisfaction of the
Severity Requirement” submitting that petitioner’s injury “lasted to at least December 4, 2014.27”
Petitioner’s Brief (“Pet. Br.”) at 1. Petitioner argues that the medical records alone provide
sufficient evidence:
In sum, we have a prescription for pain medication to treat Connie’s shoulder pain
on July 6, 2013. We have a refill of that prescription on April 3, 2014, 9-months
later. Then the next medical record we have in this case notes a left shoulder limited
range of motion December 3, 2014. Connie has met the severity requirement based
on the medical record alone.
Id. at 10. Additionally, petitioner argues that the witness statements from petitioner boss, Todd
Fischer, are credible and should be credited as affidavits because the witness used the language,
“I, Todd Fischer, do swear and affirm the following,” though there is no specific perjury language.
Id. at 12.
i. Petitioner Asserts that the Medical Record Alone Satisfies the
Severity Requirement
Petitioner argues she began experiencing excruciating pain after her vaccination on June
28, 2013, which forced petitioner to miss work the next day. Pet. Br. at 2. After an emergency
room visit on July 6, 2013 and visits to her PCP, she presented to an orthopedist, Dr. Perpich, on
August 15, 2013 and received a steroid injection. Id. at 4. She did not return to Dr. Perpich because
of the out-of-pocket cost, which was well over $300. Id. Petitioner concedes that her shoulder was
not examined at her March 22, 2014 PCP visit. She however argues she requested a refill for
Flexeril on April 3, 2014, 10 months after vaccination highlighting Flexeril as the medication the
emergency room physician prescribed for her shoulder pain on July 6, 2013. Id. at 4-5. Petitioner
argues further that a record on December 3, 2014 evidences continued shoulder pain:
The nurse practitioner who examined her noted a left shoulder limited range of
motion in the review of petitioner’s symptoms. [Pet. Ex. 23-72-73] The record
again makes no reference to any physical exam. Id. Connie was diagnosed with
shoulder pain and should follow-up with occupational health or Dr. Perpich.
27
Petitioner cites the record from December 3, 2014—"December 4, 2014” is presumably a typo.
24
Id. at 5. Petitioner references the therapy records on April 19, 2016 following a fall and injury to
her right shoulder that documented a loss of range of motion in left shoulder along with
pain/discomfort during abduction. She was provided with exercises and a recommendation to start
physical therapy when financially able. Id. Lastly, petitioner submits she was seen by Dr. Hammer
for lack of range of motion in her left shoulder on October 28, 2019. Id. at 5. Dr. Hammer examined
petitioner and assessed petitioner with adhesive capsulitis from a vaccination six years ago. Id. at
6.
Petitioner argues the foregoing medical records demonstrate that petitioner’s shoulder pain
persisted for more than six months. Pet. Br. at 10. Petitioner argues the records are consistent
regarding left shoulder pain—“there were no notations that [petitioner] was not feeling pain in her
left shoulder ever…there was no discharge from care statement from [petitioner] saying that her
left shoulder was feeling fine” Id. at 11. Further, none of the medical records or statements
contradict any testimony or witness statement between June 28, 2013 to December 3, 2014. Id. “In
fact, there was never a notation in the record that Ms. Kohl’s shoulder ever fully recovered. Current
medical records document Connie’s ongoing injury.” Id. at 11 n4.
ii. Petitioner Argues that the Witness Statements are Credible
In addition to arguing that the medical records alone satisfy the severity requirement,
petitioner argues that the witness statements support the six-months severity requirement. See Pet.
Br. at 12. Specifically, she argues that the two signed witness statements from Mr. Fischer should
be considered and credited as appropriate. Conceding there is no perjury language, petitioner notes
that Mr. Fischer wrote “I, Todd Fischer, do swear and affirm the following…” in his statement
entitled “Affidavit of Todd Fischer” and filed as Exhibit 16. Id.
Petitioner also argues the “Court can rely on unsworn statements as evidence if it so
decides. At issue in this case are the unsworn statements of a decedent, Dennis Paulus and an
uncooperative employer.” Pet. Br. at 8. Petitioner argues that exceptions to the hearsay rule could
apply to the unsworn statements and that unsworn statements can be considered evidence, within
the discretion of this Court to credit or discredit. Id. at 9. Petitioner argues that these additional
witness statements are consistent with petitioner’s testimony and support petitioner being
accommodated and assisted at work. See id. at 12-13.
2. Respondent Argues that the Severity Requirement has not been Satisfied
In respondent’s Cross-Motion for Findings of Fact filed on January 19, 2021, he argues
that petitioner failed to provide sufficient evidence to establish that her alleged injury persisted for
at least six months. Resp. Cross-Mot. at 9. Specifically, there is not preponderant corroborating
evidence, only “three affidavits…oral testimony…and three unsworn statements from two other
witnesses.” Id at 9-10. Respondent analogized the instant matter to Kirby v. Sec’y Health & Human
Servs., in which the Court of Federal Claims overturned the special master’s decision finding that
Ms. Kirby’s injury persisted for at least six months when the underlying records only documented
25
two months of persisting symptoms. 148 Fed. Cl. 530 (2020).28 See id. at 11. Respondent urges
the Court to disregard the unsworn witness statements as they appear to lack foundation and are
inconsistent with petitioner’s statements. See id. at 16-17. Respondent further argues that
petitioner’s own testimony and recollections are inconsistent with the documented record. See id.
at 18-19.
i. Respondent Submits that Petitioner’s Testimony is Contradictory and
Unreliable
Respondent questions petitioner’s credibility as a witness and reliability as a historian.
Specifically, respondent details that “[petitioner’s] recollection of events, i.e., significantly
reduced time at work, working alone at Easter, and increased assistance from Mr. Paulus, are
contradicted by objective wage records.” Resp. Cross-Mot. at 19.
Respondent highlights petitioner’s testimony about working alone on Easter, April 20,
2014, when Mr. Paulus’s timesheet proves otherwise. When questioned about this discrepancy,
petitioner submitted a supplemental affidavit revising her testimony and stating that she worked
alone in the afternoon. Id. at 18 n.2. Respondent added that petitioner testified that she could not
ride a horse until the of fall of 2014, but Facebook posts show her riding a horse in April of 2014.
Id. Respondent argues that petitioner contradicted herself testifying she worked fewer hours after
her shoulder injury, yet later conceded she did not work fewer hours. Id. Respondent also argues
that the petitioner’s timesheet and the timesheet of her coworker, Mr. Paulus, do not substantiate
petitioner’s testimony that she worked less and Mr. Paulus worked lengthier shifts, “four to six
hours each morning,” to assist her.29 Id. at 17-18. Petitioner’s narrative that she did not seek
additional treatment from Dr. Perpich, her orthopedist, due to financial constraints is also
questioned by respondent. Id. at 12. Respondent argues that her statements contradict the record
showing she returned to Dr. Perpich at least four additional times: October 29, 2015, January 17,
2016, February 3, 2016, and April 13, 2016. Id.Further, respondent argues that petitioner conflated her 2013 and 2016 injuries:30 See Resp.
Cross-Mot. at 18-19.
28
As discussed above and noted here, Kirby has since been reversed by the Federal Court of Appeals specifically on
the issue of the severity requirement and the evidence thereof. See Kirby v. Sec’y Health & Human Servs., 997 F.3d
1378 (Fed. Cir. 2021).
29
“Dennis Paulus’s timesheets reflect that in the four months prior to petitioner’s alleged injury, he generally worked
an average of 3.7 hours each morning. Ex. 20 at 17-20. Mr. Paulus did work one long shift on July 3, 2013, when he
worked 5.2 hours, but he did not work at all from July 4, 2013 through July 15, 2013, so he did not assist petitioner
on those dates. Id. at 16-17. Petitioner stated that she was only assisted by Mr. Paulus in the mornings, yet petitioner’s
timesheets show that she continued to work later in the day even though Mr. Paulus was not there. Tr. 13 (“it was just
me and Denny after the shot. There was no one else to help”); Ex. 19 at 19. In July 2013, Mr. Paulus worked an
average of 3.8 hours a day through the end of the month, which is slightly more than his prior average of 3.7 hours a
day. Id. However, for the remaining months of 2013, he worked an average of 3.4 hours per day, which is slightly less
than he worked before petitioner’s vaccination. Id. at 11-16.”
30
Respondent’s argument that petitioner has conflated the events of 2013 and 2016 will not be discussed below when
evaluating the relevant evidence and testimony. Whether petitioner may or may not have conflated her injuries is not
to be decided by this Court—it would entail speculation and would be unfair to petitioner for the Court to purport to
read her mind. Evaluating the evidence relevant to petitioner’s 2013 injury claim is sufficient, though respondent’s
comparisons are noted.
26
[P]etitioner stated that as a result of her vaccine injury, she could not lift milk
buckets until the next summer. Tr. at 14. However, petitioner’s records in 2013 and
2014 reflect no such issues, but petitioner’s records in 2016 note those specific
limitations. For example, on April 6, 2016 (shortly after Easter, which fell on March
30, 2016), petitioner explained to Dr. Perpich that since falling on the ice, she was
struggling to lift heavy milk pails while at work. Ex. 27 a 10. On April 19, 2016,
during her PT evaluation, petitioner stated that she was struggling to perform her
work tasks, and during her treatment in May 2016, petitioner specifically worked
on her ability to lift heavy milk pails overhead. Ex. 23 at 19-20.
Petitioner also made clear that she recalled significantly reducing her work hours
following her June 28, 2013 vaccination, but as noted above, her wage records belie
that statement. However, during a visit with N.P. MacMillian on April 18, 2016,
petitioner stated that her symptoms caused by her fall limited her to working only
16 to 31 hours a week. Ex. 23 at 16. Petitioner’s wage records also document a
significant decline in wages after her fall. Ex. 19 at 1-5.
Id. Thus, respondent urges the special master to find that petitioner’s testimony “[falls] short of
the ‘clear, cogent, and consistent testimony’ needed to overcome the presumption of accuracy
granted to contemporaneously created medical records.” Id. at 11.
ii. Respondent Argues No Weight Should Be Afforded Petitioner’s
Mentioning of Shoulder Pain in 2014 and 2019
Respondent argues the medical records document two months of sequela, the subsequent
records mentioning left shoulder are not contemporaneous medical records and should not be
afforded any weight. See Resp. Cross-Mot. at 11-13. Respondent points out that petitioner’s report
of left shoulder pain on December 3, 2014 was in the context of requesting a letter for her attorney
and that petitioner did not seek treatment on that date for her left shoulder. Further, ongoing
symptoms were not documented at that visit. Id. at 11. Additionally, petitioner’s report of left
shoulder to Dr. Hammer on October 28, 2019 does not provide evidence that petitioner’s shoulder
pain persisted since June 28, 2013. Id. at 13. Further, Dr. Hammer relied on petitioner’s self-
reported history of frozen shoulder, which petitioner had not been diagnosed with; thus “Dr.
Hammer’s opinion is undoubtedly based on incorrect information and unsupported statements
from petitioner, so that record cannot be given any weight.” Id. Furthermore, respondent notes the
mention of ongoing left shoulder pain in April of 2016 was likely related to her known cervical
condition causing issues in both of petitioner’s shoulders. Id. at 14.
iii. Respondent Argues that the Witness Statements Should Not Be
Afforded Any Weight
Lastly, respondent argues that the Court should discount the statements submitted by third
parties in this matter. See Resp. Cross-Mot. at 14. Citing the Vaccine Guidelines, respondent
explains that affidavits are required when petitioner provides support by way of testimony of a
27
third party, and that greater weight should be given to testimony when a witness is available for
questioning. Id. at 14-15.
Respondent questions the foundation and reliability of Mr. Fischer’s statements, submitted
as Exhibits 8, 10, and 16. Resp. Cross-Mot. 15. Respondent argues that Mr. Fischer’s statements
are not sworn under oath or notarized and that he provided vague information as to how long
petitioner’s symptoms lasted and how petitioner’s work duties were modified. Id. Though Mr.
Fischer submitted a more detailed third statement indicating that petitioner’s symptoms persisted
until Valentine’s Day in 2014 and petitioner being provided accommodations until that time,
respondent submits that Mr. Fischer did not detail what he relied on for this information. Id. at 15-
16. Respondent argues that petitioner mainly communicated with Mr. Fischer by phone, which
detracts from the reliability of Mr. Fischer’s witness statements. Id. at 16. Further, respondent cites
to Ms. Fischer’s admissions, that Mr. Fischer did not monitor petitioner or any of his employees
and that he relied only on his memory in writing his statements, to demonstrate a lack of foundation
for Mr. Fischer’s statements. See Pet. Ex. 18.
B. Analysis of the Record
Following review of all the records and the parties’ arguments regarding the evidence
presented, I find that petitioner has not satisfied the severity requirement. Though not all of
respondent’s arguments are well taken, the arguments advanced by petitioner fall short and the
evidence in the record does not preponderantly demonstrate that petitioner’s left shoulder pain
related to her June 28, 2013 vaccine persisted for more than six months. For the reasons detailed
below, I find that petitioner has failed to satisfy the severity requirement.
1. Petitioner’s Medical Records Fail to Establish Six Months Sequelae
Petitioner’s medical records could be consistent with a shoulder injury persisting for over
six months if supported by corroborating evidence; however, petitioner’s medical records alone
only affirmatively document two months of shoulder pain. The rest of petitioner’s medical record
does not provide preponderant evidence of six months sequelae.
Both respondent and petitioner agree the medical record documents at least two months of
petitioner’s shoulder pain. See Resp. Cross-Mot. at 11; see generally, Pet. Br. I find this fact to be
evident in the record. Two months of shoulder pain and/or shoulder limitation is sufficiently
documented by petitioner’s visit to the Emergency Department on July 6, 2013 complaining of
sharp shoulder pain and bruising at her injection site, Pet. Ex. 3 at 1, her visit to her PCP on July
8, 2013 during which petitioner had pain with shoulder movement and was prescribed naproxen,
Pet. Ex. 2 at 14-15, and petitioner’s visit to Dr. Perpich on August 15, 2013 during which she
received a steroid injection in her shoulder. Pet. Ex. 4 at 1-2.
The next mention of shoulder pain to any medical professional is on December 3, 2014.
Pet. Ex. 23 at 72-73. On that date, petitioner presented for unrelated reasons. In a review of
systems, petitioner reported:
[L]imited range of motion. States this is from a tetanus shot given 1-2 years ago.
Needs a statement for her attorney stating she still has decreased range of motion.
28
Evaluated by Dr. Perpich initially who recommended PT. Patient reports going
through PT, massage and “everything.”
Id. at 72.
Despite this report, the record contains no musculoskeletal examination of her shoulder or
specific physical findings documenting the range of motion of her left shoulder on that date. See
id. at 72-73. Petitioner admits in her brief that there was no reference to any physical exam. Pet.
Br. at 5. Respondent correctly argues that petitioner was not seeking treatment or medication for
her left shoulder at this visit and further that petitioner did not follow Dr. Perpich’s
recommendations for therapy or follow-up. The reporting of her left shoulder limited range of
motion was seemingly made only for litigation purposes. See Resp. Cross-Mot. 11. Lending
persuasiveness to respondent’s argument is petitioner’s reporting at the visit that she had “[gone]
through PT, massage, and ‘everything’” when no such records were filed of any such treatment.
Petitioner’s report of left shoulder issues on December 3, 2014 comes nearly eighteen months
following petitioner’s vaccination, and sixteen months after the last contemporaneous medical
record documenting shoulder pain. Reports made much later and for litigation purposes are
generally afforded little weight. See Gerami v. Sec'y of Health & Human Servs., No. 12-442V,
2013 WL 5998109, at *4 (Fed. Cl. Spec. Mstr. Oct. 11, 2013), mot. for rev. denied, 127 Fed. Cl.
299 (2014); see also Goodgame v. Sec'y of Health & Human Servs., 157 Fed.Cl. 62 (2021) (holding
that a special master may be skeptical of a medical record created at the request of any attorney in
evaluating reasonable basis). As such, I find that petitioner’s December 3, 2014 record offers
negligible support in establishing the severity requirement.
Petitioner’s next saw her PCP for an illness on December 29, 2014. Pet. Ex. 23 at 70.
Though arm and shoulder pain were listed under “Current Problems” so were issues from years
prior, such as a staphylococcal infection, screening for hyperlipidemia, and skin tag all that had
resolved. Id. at 70. It appears that the “Current Problems” list carried over items discussed and
resolved at prior appointments. More importantly, nothing in the record for the visit on December
29, 2014 indicates that petitioner reported shoulder pain or limited range of motion, mentioned her
vaccination, or was otherwise concerned with her left upper extremity. See id. Therefore, this
record is given little weight.
The next mention of left shoulder pain is almost three years after vaccination, sixteen
months after her December 3, 2014 medical visit, and after a significant fall. Pet. Ex. 5 at 67. On
April 19, 2016, petitioner presented for physical therapy and a functional assessment of her neck.
Id. In the self-reported medical history section, petitioner wrote she was presenting for physical
therapy for her neck. She circled the back of her neck and the center of her upper back as the
location of her symptoms. Pet. Ex. 23 at 15-16. She reported to the physical therapist that she was
having significant difficulty working, participating in recreational activities, driving, lifting objects
and abduction. Pet. Ex. 5 at 67. Since her fall in February of 2016 that resulted in whiplash and
broken ribs, her pain continued to worsen and hindered her performance at work; she had to work
with a neck brace. Id. X-rays showed significant cervical degeneration. Id. She had headaches
three to four times a week which chiropractic care helped. Id. Her medical history included “left
wrist surgery, right thumb surgery, torn left meniscus, osteoarthritis in the knees, and left frozen
shoulder.” Both of petitioner’s shoulders were tested at that time with about a 20 degree of
29
limitation in left shoulder abduction documented along with the notation “however, this is her
norm on both sides.” Id. at 68. Petitioner’s manual muscle test showed some discomfort and pain
during left shoulder abduction and “fuzziness” in the fingers and hands when raising her upper
extremities past 90 degrees. Id. Petitioner was deemed an excellent candidate for therapy and
myofascial release; however, her financial situation was a hinderance to attending therapy
regularly. Id. at 68. Petitioner was advised to attend as much therapy as she could afford and
instructed on home exercises to be done daily. Id. at 69.
The April 19, 2016 medical record three years after vaccination and in the context of an
intervening fall, other injuries and medical issues involving her cervical spine raise doubt as to
weight to be afforded in providing preponderant evidence for the severity requirement. That visit
noted a 20-degree limitation in motion of the left shoulder but was found that to the normal
limitation for both shoulders. Pet. Ex. 5 at 68. Though some pain was noted in petitioner’s left
shoulder during a manual muscle test with “fuzziness” in the fingers and hands when petitioner
raised her arms, these findings were not complaints previously associated with petitioner’s
shoulder injury following her vaccine. Additionally, following petitioner’s fall on ice from which
she suffered a broken rib, right shoulder injury and cervical issues requiring her to wear a neck
brace, cervical x-rays revealed cervical degeneration. Id. at 67. Further, Dr. Perpich, who had seen
petitioner for her left shoulder pain following the Tdap vaccine, also saw petitioner on April 6,
2016, did not mention her left shoulder, and attributed her right shoulder pain to her neck, —“ I
do not think there is a whole lot of shoulder contribution here. I think this is related to cervical
degenerative disk disease and an irritation of that from her accident.” Pet. Ex. 27 at 11. The medical
records reflect no left shoulder pain reported since August of 2013, not even at her December 3,
2014 when petitioner reported limited range of motion for litigation purposes. See Pet. Ex. 23 at
72-73. Petitioner also did not report shoulder problems on her intake form or mention the
vaccination at her April 19, 2016 visit. See Pet. Ex. 5 at 68. The April 19, 2016 records, created
nearly three years after vaccination with multiple intervening medical issues and injuries, carries
little weight in establishing petitioner’s severity requirement.
Six years after vaccination, at an October 2019 appointment with Dr. Hammer, petitioner
mentions left shoulder pain. Pet. Br. at 5, Pet. Ex. 24 at 10-12. She reported receipt of a vaccine
six years prior resulting in six months of adhesive capsulitis/frozen shoulder and continued loss
of range of motion. Id. at 11. Examination noted range of motion to be “quite good,” with about
60 degrees on internal and external rotation. Id. at 12. Some tenderness was noted over the biceps
tendon and rotator cuff, with some pain on resisted external rotation. Id. Dr. Hammer’s impression
following petitioner’s history and her examination of the left shoulder included:
persistent loss of motion…some of her discomfort is from chronic rotator cuff
tendinopathy related to pronged immobilization from the adhesive capsulitis. She
likely has dysfunction of her cuff causing at least some discomfort in addition to the
continued loss of range of motion.
Id. at 12. Though Dr. Hammer assessed petitioner with loss of motion, it appears that Dr. Hammer
did not examine petitioner’s right shoulder for comparison. As noted in the medical record on April
19, 2016, petitioner has similar limitations in both shoulders. See id. at 10-12; Pet. Ex. 5 at 68.
Furthermore, petitioner was never diagnosed with adhesive capsulitis or frozen shoulder. Thus,
30
Dr. Hammer’s impressions were based on an unsupported history provided by petitioner. See Resp.
Cross-Mot. at 13; see Pet. Ex. 24 at 12. The reliability of this record is questionable. It was created
six years after the subject vaccination, approximately eight months after the fact hearing on
February 6, 2019, and approximately one month after respondent’s Motion for Reconsideration.
For all these reasons, petitioner’s October 28, 2019 record provides little support in establishing
the severity requirement.
Petitioner’s medical records after the August 15, 2013 visit provide little support in
satisfying the severity requirement. The same is true for her argument that refilling her Flexeril
prescription on April 3, 2014, nine months after vaccination, provides persuasive evidence of
ongoing left shoulder pain that satisfies the severity requirement. Pet. Br. at 10. Petitioner was
prescribed Flexeril at her emergency room visit on July 6, 2013. See Pet. Br. at 4-5, 10. However,
her medical records show that petitioner was prescribed Flexeril on July 26, 2012, a year prior to
her receipt of the subject Tdap vaccine by her PCP for low back pain and spasms and had requested
refills on September 12, 2012 and December 11, 2012 for the same. Pet. Ex. 2 at 6; Pet. Ex. 23 at
8; See Pet. Br. 4-5. Additionally, petitioner was prescribed Naproxen and Gabapentin for her
shoulder pain after her initial Flexeril prescription in the emergency room. Pet. Ex. 2 at 15; Pet.
Ex. 23 at 7. She did not request refills of either Naproxen or Gabapentin in the months after August
of 2013. However, her April 3, 2014 request for a refill of Flexeril was not documented for left
shoulder pain but rather for ongoing muscle spasms despite having been to the chiropractor three
times that week for these issues. Pet. Ex. 23 at 6. There was no mention of left shoulder pain. See
id. Both petitioner and Dr. Jones confirmed that her chiropractic treatment only involved back and
spinal issues. Pet. Ex. 21 (Dr. Jones’s letter advising that he treated petitioner for several years of
recurring back pain and only dealt with spinal related issues); Tr. 16 (petitioner testifying that she
had regular appointments with Dr. Jones for her back but not for her shoulder). Therefore,
petitioner’s request to refill the Flexeril prescription on April 3, 2014 was not as she argues for
shoulder pain but was for muscle spasms for which she had refilled that prescription several times
prior to her vaccination. Her refilling the Flexeril prescription does not satisfy the severity
requirement.
Petitioner’s medical records fail to provide preponderant evidence that petitioner’s left
shoulder pain persisted for more than six months. However, the record does not affirmatively
establish that petitioner’s shoulder injury or pain resolved either. Contrary to respondent’s reliance
on Kirby, the Circuit has instructed that the presumption that medical records are accurate and
complete is a faulty one. Kirby, 997 F.3d 1378, 1383. Silence in a medical record does not establish
nonexistence of a problem. See id. Therefore, petitioner’s testimony of continued pain is not
automatically inconsistent or in contradiction with records that are silent about the nonexistence
of such symptoms—her medical records may still be consistent to satisfy the severity requirement.
Thus, the additional evidence provided in this matter, such as testimony, timesheets, third-party
statements, and social media records must be considered thoroughly and given their proper weight.
Special masters may also consider other types of evidence, such as unsworn statements, on the
grounds that the Vaccine Program was designed to have “flexible and informal standards of
admissibility of evidence.” 42 U.S.C. § 300aa-12(d)(2)(B); see also Munn v. Sec’y of Health &
Human Servs., 970 F.2d 863, 873 (Fed. Cir. 1992).
31
2. Petitioner’s Testimony Regarding the Duration of Her Injury is Unpersuasive31
Petitioner’s testimony regarding the onset of her left arm pain following receipt of the Tdap
vaccination on June 29, 2013 and the events that followed into August of 2013 are consistent. Pet.
Ex. 11 at 2; Pet. Ex. 19 at 20 Tr. 15, 54 (left shoulder pain beginning after midnight following her
vaccination, inability to work next day, and difficulties completing her usual tasks at work
corroborated by timesheets) Though the weight of Mr. Paulus’s statement is limited, it does
corroborate petitioner’s need for assistance at work in the immediate days following her
vaccination. Pet. Ex. 9.
However, the record is unclear on how long petitioner was not able to attend to her usual
activities due to left shoulder pain, in both her work and her recreational life. Following an
evaluation of the entire record, I find petitioner’s testimony unpersuasive and unsupportive of the
severity requirements. Though petitioner’s testimony of her continued left shoulder pain and
disability for more than six months after her vaccination was candid and facially supportive, other
evidentiary evidence contradicts and discredits petitioner’s statements.
i. Petitioner’s Facebook Posts Contradict Her Testimony About Horseback
Riding
Petitioner testified that one of the benefits of working on a farm is the ability to ride horses.
Pet. Ex. 11 at 3. She stated her left shoulder injury rendered her unable to ride for “…probably
over a year” because she could not lift the saddle up with one arm and needed two hands to use
the reins. Tr. 40. She stated it was not until the fall of 2014 that she took her first ride. Id. When it
was pointed out during the hearing that petitioner rode in April of 2014, she stated, “I thought it
was October, and maybe it was April. But I know it wasn’t right—I didn’t ride anything after I was
injured.” Tr. 62 (emphasis added).
Petitioner’s Facebook posts prove her testimony to be inaccurate. See, Pet. Ex. 17. A
Facebook post on July 31, 2013 at 10:34pm shows, “Carson on our ride tonight,” confirming that
petitioner rode her horse, Carson, one month after her vaccine injury. Id. at 202. While there could
be many explanations for how petitioner rode Carson on that date– someone else placed the saddle
for her or she held the reigns in one rather than two hands—petitioner specifically testified that
she could not ride with one hand. Riding at all contradicts her testimony that she did not ride for
some time after her vaccine related injury. See Tr. 62.
Another Facebook post showed petitioner sitting on what she described as an “unbroken”
horse, Butterscotch, on September 2, 2013. Pet. Ex. 17 at 201. Even if petitioner did not saddle
31
I accept petitioner’s explanation that she may not have returned to Dr. Perpich after August 2013 for financial
reasons. Tr. 67, 79-80. Her visit with Dr. Perpich and receipt of the steroid injection resulted in a bill for $416.48,
which went to collection. Pet. Ex. 26 at 1. Though petitioner did return to Dr. Perpich in 2015 and 2016, her visits
were preceded by significant injuries and/or emergency room visits—knee pain from a torn meniscus and neck
problems from a fall that resulted in broken ribs and whiplash. See Pet. Ex. 27. However, my acceptance of the
explanation that petitioner may have had continued pain she did not seek expensive medical care for is inconsequential.
The medical records do not indicate that petitioner sought any type of care for her left shoulder after August 2013
until several years later.
32
Butterscotch, hold both reins or ride Butterscotch, she still managed to mount an unbroken horse
which seems unlikely with the inability to use her left arm as she claimed.
Another Facebook post shows, “awesome ride” on April 26, 2014 with someone at the
farm named Bill:
Saturday, April 26, 2014 at 7:21 EDT. Connie Kohl added 2 new photos.
Butterscotch and Carson!
Saturday, April 26, 2014 at 7:24 EDT. Connie Kohl is feeling proud. Had an
awesome ride, even ride there (sic) the freestall (sic) barn by the cows! Then played
a little!
Saturday, April 26, 2014 at 7:30pm EDT. Bill did too!
Id. at 174.
When questioned about the April 2014 Facebook post after testifying that she could not
ride until October of 2014, she stated, “I thought it was October and maybe it was April. But I
know it wasn’t right—I didn’t ride anything after I was injured.” Tr. 62 (emphasis added). As
mentioned above, this statement is further questionable in light of the Facebook post for her ride
on Carson on July 31, 2013, one month after the subject vaccination and injury.
Petitioner’s Facebook posts make it difficult to reconcile her testimony about the severity
of her injury and her activities. The inconsistency raises questions about the accuracy of her
testimony regarding her work limitations as well.
ii. Mr. Fischer’s Statements Provide Little to Corroborate Petitioner’s
Testimony
Petitioner testified that her job required her to feed, birth, clean, and otherwise care for
calves; she also was tasked to carry and dump five-gallon buckets and lift 50-pound bags of grain.
Petitioner was responsible for updating information on the computer system, making ear tags, and
monitoring the cows. Tr. 7; Tr. 9; Tr. 59-60, 92-93. Petitioner testified that Mr. Paulus, her
coworker, had to perform the heavy lifting and dumping for her after her vaccination. Tr. 12, 36,
56-57. She claimed this continued at least through February 2014, the six-month mark. She
recounted in detail her difficulties on Easter, April 20, 2014, when she had to work alone because
everyone was off for the holiday; she testified that she struggled in doing all the chores by herself.
Tr. 13-14. After hearing, petitioner affirmed she meant to say she worked alone in the afternoon
on Easter. Tr. 14; Pet. Ex. 26 at 2.
In support of her claim that she was unable to attend to her daily work duties for over six
months, petitioner provided three statements (two from late 2016 and one from late 2017) from
her boss, Mr. Fischer, one statement from her coworker, Mr. Paulus, her timesheets, and Mr.
Paulus’s timesheets. Pet. Ex. 8; Pet. Ex. 9; Pet. Ex. 10; Pet. Ex. 16; Pet. Ex. 19; Pet. Ex. 20.
Mr. Fischer’s December 16, 2016 letter states:
33
In June 2013 my employee Connie Kohl had received a tetanus shot for something
that was not work related. It affected her left arm making it difficult to use. I was
able to adjust her duties by having others do what she wasn’t able to do. She missed
some work days, and then worked as much as she could with the help of the other
employees.
Pet. Ex. 8 at 1. Mr. Fischer’s second letter from December 23, 2016 states:
In June 2013, my employee Constance Kohl had received a tetanus shot for
something not work related. Following her vaccination, she complained of injury
of her left arm. She experienced difficulties performing work duties that involved
use of her left arm, which I adjusted by having others do what she could not. As a
result of her left arm injury, many of Ms. Kohl’s work duties had to be adjusted
past January 1, 2014.
Pet. Ex. 10 at 1. Mr. Fischer signed this statement and a third party, Ivan Rodriguez, signed the
statement as a witness. Id.
On October 31, 2017, petitioner filed a third statement from Todd Fischer entitled
“Affidavit of Todd Fischer.” Pet. Ex. 16. It began with the statement, “I, Todd Fischer, do swear
and affirm the following…” Id. Mr. Fischer affirmed that he owned Fischer Dairy Farms, which
had multiple dairy farms in the state of Wisconsin. Id. at 1. Mr. Fisher affirmed that he employed
petitioner and had employed her since 2012. Id. According to Mr. Fischer, petitioner received a
“DTaP” vaccine in her left arm on June 28, 2013. Pet. Ex. 16. She called into the office on June
29, 2013 to report that she could not come to work due to pain in her arm and inability to dress
herself. Id. She reported to work on June 30, 2013 for part of the day to check on the baby calves.
Id. She returned to work full time on July 1, 2013 but was only able to complete limited tasks. Id.
Petitioner was responsible for birthing, feeding, administering shots to, and tagging calves. She
also had to carry, scoop, and dump grain buckets, carry milk pails two at a time, and log reports
into the computer. Id. After her vaccine, petitioner received help from her coworker, Dennis
Paulus, for all tasks that required heavy lifting or use of her left hand. Id. at 2. She was unable to
carry grain buckets or birth calves and needed assistance administering shots to larger calves. Id.
However, because petitioner worked with infant calves from nursing to weaning, she could still
perform many of her work duties. Id. She could still scoop the grain, although coworkers had to
help carry the buckets, carry milk pails in her right hand, feed calves with one hand, and log reports
into the computer. Id. According to Mr. Fischer, petitioner required help with her duties “until well
after January 1, 2014.” Pet. Ex. 16 at 2. Mr. Fischer added that it was not until after Valentine’s
Day, February 14, 2014, that petitioner could carry milk pails with both arms to the pasteurizer
and help with birthing the calves. Id. Mr. Fischer submitted that petitioner was a valued employee
and he accommodated her as needed until late winter 2014. Id. According to Mr. Fischer, following
February 14, 2014, petitioner was able to resume most of her normal duties using her left arm. Id.
Mr. Fischer signed the statement and a third party, Anna Isabel Bautista, signed the statement as a
witness. Id.
Respondent argues that Mr. Fischer’s statements should be disregarded because they are
not affidavits sworn under oath. See Resp. Cross-Mot. 15. Respondent further argues that Mr.
34
Fischer’s statements lack foundation because petitioner testified to mostly communicating with
Mr. Fischer via phone so he did not observe her and because Mr. Fischer’s wife wrote that Mr.
Fischer did not monitor his employees. See id. at 16. Respondent added that Mr. Fischer’s last
statement with additional details did not provide how he remembered the information or what he
relied on for the detailed information. See id. at 15-16. In fact, Mr. Fischer’s wife submitted a
statement indicating that Mr. Fischer only relied on his memory in writing his statements. Pet. Ex.
18. Respondent further cites the inconsistency between Mr. Fischer’s statements regarding
accommodations made for petitioner until late winter 2014 and petitioner’s testimony that no
accommodations were made to demonstrate the unreliability of the statements. See id. at 16.
For the following reasons, Mr. Fischer’s first two statements are broadly considered as
potential corroborating evidence that petitioner required some form of work assistance. First, while
Mr. Fischer’s statements are not affidavits, Mr. Fischer’s statements bore his signature.
Respondent is correct that Mr. Fisher’s statements are not sworn under oath or the penalty of
perjury, but the Vaccine Program was designed to have “flexible and informal standards of
admissibility of evidence.” 42 U.S.C. § 300aa-12(d)(2)(B); see also Munn v. Sec’y of Health &
Human Servs., 970 F.2d 863, 873 (Fed. Cir. 1992) (finding that the Federal Rules of Evidence are
inapplicable in Vaccine Act proceedings). It would be contrary to Congress’s intentionally relaxed
standards to disregard Mr. Fischer’s statements. Certainly, these statements carry less weight than
affidavits, but should be given some consideration in evaluating petitioner’s testimony. Second,
respondent’s argument that these statements lack foundation because petitioner and Mr. Fischer
largely communicated by telephone and because he did not monitor her work is not entirely
persuasive. Even if petitioner communicated with Mr. Fischer largely by telephone and Mr.
Fischer did not monitor his employees closely, Mr. Fischer’s ability to generally observe
petitioner’s condition and performance is not entirely negated. Petitioner testified that she usually
called Mr. Fischer if she needed to communicate with him but she also testified that she would see
Mr. Fischer passing by on a tractor or a mixer. Tr. 35-36. It is reasonable that in a large working
farm the telephone would be the easiest means of communication. It is further reasonable that Mr.
Fischer would have general knowledge of how an employee was performing overall, even if he
did not see them every day.
For these reasons, Mr. Fischer’s two statements made in December of 2016 were
considered. Though not identical, the second statement was more elaborate than the first, the
statements are generally consistent with the evidence in the medical record: petitioner was in pain
following her vaccination and could not complete her work duties as usual. However, nothing in
the record other than petitioner’s testimony, supports Mr. Fischer’s statement that petitioner
required assistance until after the winter of 2014. Mr. Fischer was not produced for testimony at
hearing nor was he deposed. There is no other evidence, besides petitioner’s word that corroborates
how long petitioner required assistance at work. Certainly, her timesheets do not show a reduction
in hours worked or an increase in the work of others that can be considered. The severity
requirement cannot be met by unsworn, uncorroborated statements. At most, Mr. Fischer’s
December 2016 statements support the corroborated assertion that petitioner required assistance
at work for some time following her vaccination but fails to corroborate how long that assistance
was needed or if the six month severity requirement is satisfied. See Pet. Ex. 8; Pet. Ex. 10.
35
Respondent’s skepticism of Mr. Fischer’s October 2017 statement is warranted.
Respondent correctly points out that Mr. Fischer failed to provide any foundation for his
recollections. It is difficult to comprehend how Mr. Fischer would remember specific dates, more
than three years after the relevant events, without records, messages, or other documentation. Mr.
Fischer’s October 2017 letter is significantly longer than his other statements and quite detailed.
See Resp. Cross-Mot. 16; Pet. Ex. 16. Mr. Fischer detailed petitioner’s exact tasks, limitations, and
dates by which petitioner was able to carry milk pails with both arms. See Pet. Ex. 16 at 1-2. He
specifically indicated that it was not until after Valentine’s Day, February 14, 2014, that petitioner
could carry milk pails with both arms, yet petitioner herself never mentions this date with such
specificity. Id. at 2. Mr. Fischer provides no reasons as to why he would recall how petitioner was
performing on Valentine’s Day in 2014. He submits no timesheets or other employment records
to corroborate his statement. Furthermore, petitioner testified that as of April 20, 2014, Easter,
months after Valentine’s Day, she was still unable to use her left arm while dealing with the milk
pails (though the accuracy of petitioner’s testimony is at issue in light of Mr. Paulus’s timesheet
for April 20, 2014 and the Facebook post showing petitioner horseback riding). See Pet. Ex. 11 at
2; Tr. 14. Either way, petitioner and Mr. Fischer do not present the same narrative and it is unclear
how the additional and specific information came to exist, especially if Mr. Fischer only relied on
his memory as his wife stated. See Pet. Ex. 18. For these reasons, Mr. Fischer’s third statement is
afforded little weight.
Mr. Fischer’s statements support the general assertion that petitioner was unable to perform
her tasks to the same extent as she was able to prior to her vaccination for some time following her
vaccination. However, petitioner’s limitations persisting beyond August of 2013 is uncorroborated
by the remaining evidence as further detailed below.
iii. Petitioner’s Testimony Regarding Her Ability to Work is Inconsistent
and Only Minimally Corroborated
Petitioner testified that Mr. Paulus always worked the morning with her, and she had
different coworkers in the afternoons. Tr. 11. Mr. Paulus did not work in the afternoon. Tr. 12, 56.
Because she had difficulty with heavier tasks, petitioner testified that Mr. Paulus had to stay
“somewhat later” in the morning to assist her. Tr. 57. Petitioner testified that Mr. Paulus usually
worked from 5am until 10am or 11am, the latest. Tr. 56. To help petitioner after her vaccination,
he stayed “four to five or six” hours depending on the work. Tr. 57. She stated she was working
three or four hours less a day at first, and she did not work a “full, regular” shift or return to
working ten to twelve hours a day until “probably spring of 2014.” Tr. 54-55. Petitioner testified
that she did not do chores by herself until Easter of 2014, which she remembered because of the
holiday all her coworkers had off. Pet. Ex. 11 at 2; Tr. 13-14.
After the fact hearing, petitioner submitted a supplemental affidavit revising her testimony.
Petitioner affirmed that what she meant to say was nobody worked with her the afternoon of Easter
but Mr. Paulus worked with her Easter morning. Pet. Ex. 26 at 2. Petitioner further affirmed she
still worked ten to twelve hours days as needed, but she could not accomplish all her usual tasks.
Id. at 3.
36
Petitioner’s testimony at hearing and the record evidence from her employment is not
consistent. Petitioner stated she worked three or four hours less a day after her shoulder injury.
Petitioner’s work records show that she did not miss any significant periods of time from work or
lose pay following her June 28, 2013 vaccination. Pet. Ex. 14 at 1-3. Petitioner’s timesheets show
regular fluctuations of weekly hours throughout the years, with her overall hours not reduced
following her vaccine except immediately after her Tdap vaccination when she called out of work
on June 29, 2013 and worked only a few hours on June 30, 2013. Pet. Ex. 19 at 20. A review of
the timesheets show petitioner worked just over forty-seven hours the week prior to the subject
vaccination. Pet. Ex. 19 at 20. She worked nearly forty-seven hours the week after her vaccination,
July 7, 2013 – July 13, 2013. Id. at 19. The next week, July 14, 2014 – July 20, 2013, she worked
almost fifty hours. Id. at 18-19. Petitioner allegedly regained her ability to accomplish all her tasks
and work full hours in the summer of 2014, see Tr. 14, but petitioner’s timesheet before and after
the summer of 2014 do not reflect any significant change. The records show, for example,
petitioner worked 118 hours for the pay period of August 1, 2013 through August 19, 2013. Id. at
17. For the pay period of December 29, 2013 through January 13, 2014, petitioner worked 113
hours. Id. at 7. Corresponding time sheets two years later show that petitioner worked 114 hours
for the pay period of December 29, 2015 through January 14, 2016. Id. at 5. Overall, petitioner’s
work records did not corroborate her testimony that she worked reduced hours for any significant
period of time. Even though petitioner attempted to clarify or revise her testimony in her
supplemental affidavit, affirming that she would still work ten-to-twelve-hour days as needed,
petitioner’s timesheets suggest that she was consistently working the same or similar hours in
2013, 2014 and 2015. Petitioner was given ample opportunity to provide additional evidence or
records in support of the hours worked but provided none.
Petitioner’s credibility was tested after she recounted in detail working alone on Easter,
April 20, 2014. “[n]obody helped that day”—“nobody else was available to work” so she did the
chores herself. Tr. 13-14. She detailed that holiday, 10 months after vaccination as the first time
she had to work alone, and how difficult it was while still having trouble with her shoulder. Pet.
Ex. 11 at 2; Tr. 14. But the timesheets for that day show that Mr. Paulus worked the morning of
April 20, 2014. Pet. Ex. 20 at 7. In response to the discrepancy, petitioner’s supplemental affidavit
submitted after the hearing affirmed that she did not mean to say she worked alone the entire day.
She meant to say nobody worked with her that afternoon, but Mr. Paulus worked with her in the
morning. Pet. Ex. 26 at 2. “As I testified, Dennis would work with me in the mornings and some
afternoons. On the day in question, Dennis did work with me in the morning, but because it was
Easter there was nobody working with me that afternoon.” Pet. Ex. 26 at 2. However, prior to her
supplemental affidavit, petitioner had never mentioned that Mr. Paulus worked with her some
afternoons—in fact, she had testified that Mr. Paulus did not work in the afternoons. Tr. 12, 56. It
is difficult to reconcile the detail with which petitioner testified about the efforts and
accommodations she had to make in order to work alone that Easter Sunday, only to have the
testimony recanted after the hearing in a supplemental affidavit once confronted with timesheets
showing the testimony as inaccurate. Giving her some leeway that she may have worked alone the
afternoon of Easter Sunday, there are still no records or statements from other workers to confirm
this fact. Petitioner’s revisions after the hearing and upon being confronted with contradicting
documentation detracts from her credibility and provides little evidence in support of the severity
requirement.
37
Lastly, petitioner’s statement that Mr. Paulus worked longer hours to help her was not
necessarily corroborated by Mr. Paulus’s timesheets. Prior to petitioner’s vaccine injury, Mr.
Paulus worked from 5am until 10am or 11am the latest. Tr. 56. Petitioner testified that Mr. Paulus
stayed “somewhat later” to assist her, though just in the mornings. Tr. 57. He helped from “four to
five or six” hours depending on the work though he never stayed after noon to assist. Tr. 57.
However, petitioner did not specify how often or for how long Mr. Paulus had to assist her in
completing tasks. Respondent submits Mr. Paulus’s timesheets do not substantiate petitioner’s
testimony or that he worked more hours to assist her. Respondent states:
Mr. Paulus did work one long shift on July 3, 2013, when he worked 5.2 hours, but
he did not work at all from July 4, 2013 through July 15, 2013…In July 2013, he
worked an average of 3.8 hours a day through the end of that month, which is
slightly more than his prior average of 3.7 hours a day…for the remaining months
of 2013, he worked an average of 3.4 hours per day, which is slightly less than he
worked before petitioner’s vaccination.
Resp. Cross-Mot. 17-18. My review of Mr. Paulus’s time sheets shows he worked both mornings
and afternoons—around three-to-four hours in the morning and three-to-four hours in the
afternoon. See generally Pet. Ex. 20. In the six months prior to June 28, 2013, Mr. Paulus worked
fairly consistently in the morning from around 5am for between three-to-four hours and clocked-
out mid-morning. He then clocked-in for the afternoon around 1pm, worked between two-to-four
hours, and then clocked out. See id. at 20-22. During the six months prior to June 28, 2013, Mr.
Paulus generally worked between six to eight hours a day, deviated from that schedule six times,
and worked more than nine hours a day on six occasions. Id. at 17-20. However, on June 29, 2013,
Mr. Paulus worked for over seven hours in the morning and on June 30, 2013, he worked over six
hours in the morning. Id. at 17. In the six months following June 28, 2013, Mr. Paulus deviated
from his usual morning schedule over twenty times—clocking-in around 5am, working for three-
to-four hours, clocking-out mid-morning, then shortly thereafter clocking-back in for one-to-two
hours before clocking-in out for lunch. He continued to clock-in for the afternoon around 1pm.
When Mr. Paulus clocked-in twice in the morning, he worked four-to-six hours in the morning.
See id. at 10-17. Mr. Paulus worked more than nine hours a day twelve times in the six months
following petitioner’s vaccination. It also appears that Mr. Paulus’s schedule deviated with longer
mornings on days petitioner did not work, though not exclusively.32 See Pet. Ex. 19; see Pet. Ex.
20.
Even with these differences in Mr. Paulus’s timesheets, Mr. Paulus’s longer mornings were
not consistent or with any particular pattern (either increasing or decreasing) and provide little
evidence to support petitioner satisfying the six months severity requirement. Though the
timesheets provide that Mr. Paulus worked longer mornings on various days, corroborating
petitioner’s testimony and Mr. Paulus’s own statement, it does not provide proof that petitioner
needed regular assistance, when petitioner needed assistance, or when petitioner no longer needed
assistance. The reasons Mr. Paulus’s worked longer hours at time before and after petitioner’s
vaccine injury cannot be assumed since Mr. Paulus did not testify in this matter and has
32
Comparison between petitioner’s timesheet and Mr. Paulus’s timesheet, demonstrate that Mr. Paulus’s schedule
deviated on days petitioner was not present for work. For example, see Pet. Ex. 19 at 16 and Pet. Ex. 20 at 15
(August 24, 2013), as well as Pet. Ex. 19 at 10 and Pet. Ex. 20 at 12 (November 17, 2013).
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unfortunately passed away. Therefore, Mr. Paulus’s timesheets do not provide preponderant
evidence to satisfy the severity requirement though they potentially provide some corroboration
for petitioner’s testimony. Petitioner did not submit any statements or affidavits from other co-
workers who worked the afternoons with petitioner following her vaccine injury to lend any
support for accommodations that had to be made to assist her in performing her job or in support
that she needed any assistance.
3. The Record as a Whole Does Not Contain Preponderant Evidence to Satisfy the
Severity Requirement
The record as a whole: the medical records, petitioner’s testimony, third-party statements,
employment records and Facebook posts, do not establish that petitioner more likely than not
suffered from her left shoulder injury for over six months. The medical records affirmatively
establish that petitioner experienced two months of sequela. All other medical records mentioning
petitioner’s left shoulder are assigned little weight due to litigative purpose, time-lapse, and
intervening events.
Even though the evidence in this matter may resemble the evidence in Kirby v. Sec’y Health
& Human Servs., at first blush, the two months of medical records and a near two-year gap in
reporting and treatment, the petitioner in Kirby produced home-exercise worksheets that
corroborated her testimony that she continued with home-exercises following her last medical
appointment for her shoulder. 997 F.3d 1378 (Fed. Cir. 2021) (reversing Kirby v. Sec’y Health &
Human Servs., 148 Fed. Cl. 530 (2020). Ms. Kirby suffered a different injury than petitioner in
this instance and filed an expert report that corroborated her testimony regarding the course of her
shoulder injury. Most importantly, the petitioner’s testimony in Kirby was consistent with the
records submitted and she did not contradict herself. See id.Here, petitioner’s testimony and other statements were inconsistent, contradicted
themselves and were only minimally corroborated by other evidence filed in this case. Petitioner’s
Facebook posts show her horseback riding one month, three months and ten months after her
vaccine related injury contrary to her testimony that she was unable to ride for over a year, raising
questions as to what other activities she claimed she was unable to do but may have been
performing during that timeframe. The third-party statements provide some amount of support for
petitioner’s claim that she required help at work for some period of time but the statements do not
provide any support for how long petitioner required assistance due to her left shoulder injury. The
severity requirement cannot be found solely on the word of petitioner or on the word of third-
parties on the behalf of petitioner; the severity requirement must be established by a preponderance
of the evidence. 42 U.S.C. § 300aa-11(c)(1)(D)(i); see Song v. Sec'y of Dep't of Health & Human
Servs., 31 Fed. Cl. 61, 65-66 (1994), aff'd, 41 F.3d 1520 (Fed. Cir. 2014) (noting that a petitioner
must demonstrate the six-month severity requirement by a preponderance of the evidence); see
Colon, Sec’y of Health & Human Servs., 156 Fed. Cl. 534, 541 (2021). Here, petitioner falls short
of providing such evidence.
To be clear, petitioner’s character is not being questioned. Petitioner is undoubtedly a hard
worker, a valued employee, and a caring individual. Unfortunately, there is insufficient evidence
to find the severity requirement has been established by a preponderance of evidence.
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V. Conclusion
Upon careful review of the record and assigning all evidence their appropriate weight,
petitioner has failed to satisfy the severity requirement. Therefore, petitioner’s petition is
DISMISSED as she has failed to satisfy a requirement of the Vaccine Program. Respondent’s
Motion to Dismiss is MOOT.
The Clerk of Court shall enter judgment accordingly.
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
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