Small v. Secretary of Health and Human Services

REISSUED FOR PUBLICATION
FEB 25 2020
OSM
U.S.COURT OF FEDERAL CLAIMS
lfn tbe Wniteb ~tates QCourt of jfeberal (!Claims
No. 15-478V
Filed: January 27, 2020
Reissued for Public Availability: February 25, 2020*
ADINA SMALL, prose,
Keywords: Vaccine Act;
Petitioner, Motion for Review; SIRVA;
Off-table; Actual Causation;
v.
Injection; Influenza (flu);
SECRETARY OF HEAL TH AND Nerve Injury; Expert; Medical
HUMAN SERVICES, Records; Ruling on the
Written Record
Respondellt.
Adina Small, the petitioner, acting prose.
Lynn C. Sch/ie, Torts Branch, Civil Division, U.S. Department of Justice, Washington, D.C., for
the respondent.
MEMORANDUM OPINION AND ORDER
HERTLING, Judge
Ten months after receiving an injection with the influenza (flu) vaccine in her left arm,
the petitioner, Adina Small, told her doctor for the first time that she had been unable to lift that
arm since receiving the injection. Her doctor referred her to a neurologist, who inferred that the
flu shot had damaged a nerve in Ms. Small's arm, immediately causing shoulder pain that
gradually caused Ms. Small's inability to lift her arm. Ms. Small then sought compensation for
the vaccine-related injury under the Vaccine Act, 42 U.S.C. § 300aa-l Oet seq. The special
master denied Vaccine Act compensation for Ms. Small's alleged injury, holding that she failed
to prove that the flu shot caused her injury. Small v. Sec'y ofHealth & Human Servs., No. 15-
478V, slip op. at 21-22 (Fed. Cl. Spec. Mstr. Nov. 1, 2019) [hereinafter Decision],
https://www.uscfc.uscourts.gov/opinion-search, reissued for publication, 2019 WL 6463985
(Dec. 2, 2019).
The special master found insufficient evidence of the onset of pain immediately
following the flu shot that the neurologist's theory of causation inferred. The special master
'Pursuant to Vaccine Rule 18(b), this opinion was initially filed on January 27, 2020, and the
parties were afforded 14 days to propose redactions. The parties did not propose any redactions.
Accordingly, this opinion is reissued in its original form for posting on the court's website.
found instead that left-shoulder pain reported the day after Ms. Small's flu shot was more likely
caused by the pre-existing spinal condition that had previously caused pain in both of Ms.
Small's upper arms. The special master also found that the absence of any mention ofinjection-
related pain in the records of three doctor visits spanning the six months following the flu shot
was preponderant evidence that Ms. Small did not experience the direct-nerve-injury pain that
her neurologist's theory inferred.
Ms. Small has sought review of the special master's decision. The special master applied
the correct legal standard for proof of vaccine causation under A/then v. Sec'y of Health and
Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). The special master considered the relevant
evidence in the record, including Ms. Small's medical records, affidavits, and expert reports.
The special master provided a reasonable explanation for his conclusions, including his
conclusion that the immediate nerve damage posited by Ms. Small's neurologist nearly a year
after the vaccine was not supported by preponderant evidence in light of her contemporaneous
medical records.
After independent review of the record, the Court DENIES the motion for review.
I. BACKGROUND
A. Pre-Vaccination Spinal Condition
About a month before receiving her flu shot in 2013, Ms. Small saw a rheumatologist and
reported a one-year history of "neck pain right," a feeling of "ants on [her] body," and "swelling
of [her] right posterior trunk." (Ex. 13 at 1.) The rheumatologist recommended an x-ray and
MRI of Ms. Small's cervical spine.
The record of an MRI taken a week later, four weeks before the flu shot, set forth the
"Impression," "Clinical Information," "Technique," and "Findings" of the radiologist, Dr.
Jerrold Mink. Dr. Mink recorded Ms. Small's "Clinical Information" as "[r]ecurring neck pain
radiating to both upper extremities for many years." He found "the presence of developmental
cervical spinal stenosis," and he specifically described the appearance of the joint between each
of the cervical vertebrae. (Id. at 4-5.)
Two weeks before the flu shot, Ms. Small returned to the rheumatologist, who reviewed
her MRI with her. The rheumatologist added cervical spinal stenosis and two abbreviations
indicating that Ms. Small had right lower-back pain to the "Assessment" section of Ms. Small's
record. 1 (Id. at 8.) Ms. Small also reported right shoulder and right lower-back pain. (Id.)
Ms. Small returned to the rheumatologist on the same day she received her flu shot, but
the sequence of these two events is unclear from the record. (Id. at 16-17.) Ms. Small reported
1
The special master's decision clarified that the abbreviations in "right sh and right LBP" are
common abbreviations for "shoulder" and "low back pain" respectively. See Decision at 6
(citing N.M. Davis, Medical Abbreviations 186, 297 (15th ed. 2011)).
2
"continued neck pain with stiffness" to the rhewnatologist. (Id. at 16.) The rheumatologist's
physical exam confirmed a "decreased [range of motion]" in Ms. Small's neck. (Id. at 16.) Ms.
Small declined an injection for the neck pain and the rheumatologist provided a muscle relaxant
and recommended physical therapy. (Id. at 17.)
On February 12, 2013, a pharmacy worker administered the flu vaccine to Ms. Small
through an intramuscular injection in Ms. Small's left arm. (Ex. 1 at 2.) The pharmacy worker
also administered the shingles vaccine subcutaneously. Ms. Small does not claim that the
subcutaneous injection of the shingles vaccine caused her alleged injury.
B. Post-Vaccination Care
The day after the flu shot, a physical therapist evaluated Ms. Small. (Ex. 5 at 16-18.)
The physical therapist recorded Ms. Small's chief complaint as "severe pain [cervical spine and]
upper trapezius muscles and [lower back] pain." (Id. at 16.) Ms. Small told the physical
therapist that her neck pain came from a strain she had suffered lifting her husband, who suffered
from Parkinson's disease. (Id.) A list of four problems on the evaluation record included "L
upper extremity radicular pain." (Id.)
Eight days after the flu shot, Ms. Small met with her primary-care doctor and discussed
abdominal pain she had reported to him eight months earlier, in June 2012. 2 She also reported
"back pain." (Ex. 2 at 13-16.) Nothing in the record of this visit mentions shoulder pain or any
other adverse effect attributed to the flu shot. (Ex. 2 at 13-16.)
For two months following the flu shot, Ms. Small continued physical therapy to improve
her neck's range of motion. (Ex. 5 at 10-16.) The handwritten records of these sessions are
difficult to read, but they do not appear to mention injection-related pain. (Id.)
Six months after the flu shot, Ms. Small returned to her primary-care doctor and
discussed the stress caused by her husband's condition and the fact that she had suffered a viral
infection a few weeks previously. (Ex. 2 at 9.) The record of the visit does not mention shoulder
pain. (Id.)
Ten months after the shot, Ms. Small returned to her primary-care doctor and for the first
time reported that she had been unable to lift her arm since receiving her flu shot. (Id. at 5-8.)
The doctor recorded that Ms. Small "[g]ot two vaccines at Ride-Aid last February and can't raise
her arm since." (Id at 5.) He referred Ms. Small to a neurologist. (Id. at 8.)
2
The special master characterized Dr. Yaron Elad, a cardiologist, as Ms. Small's primary-
care doctor because records of Ms. Small's visits to Dr. Elad showed a pattern of visits for
symptoms unrelated to his specialty, and Ms. Small identified him as such in her affidavit. See
Decision at 5 & n.8. The Court accepts this inference as plausible and refers to Dr. Elad
according! y.
3
About a month and a half later, Ms. Small saw a neurologist, Dr. Nicholas Szumski, as
recommended by her primary-care doctor. At her initial meeting with Dr. Szumski, Ms. Small
reported:
-- About a year ago, [she] got her flu and shingles va[ccinations] in
L[ eft] shoulder at the same time and spot.
-- [She] [i]mmediately had pain radiating down lateral upper arm,
which she thought was normal at the time.
-- [The pain] [h]asn't changed in the year since, maintaining an
ovoid. Advil helps somewhat, but [she] doesn't use it too often -
[she] just avoids tasks."
(Id. at 2.)
Dr. Szumski observed that Ms. Small's arm was tender to the touch with the "greatest
focus" on the outside of the upper arm where it meets the shoulder muscle (deltoid). (Id. at 3.)
She also experienced pain when moving it away from her body. (Id.) The neurologist diagnosed
Ms. Small with "neuritis" and recommended physical therapy. (Id.)
C. Vaccine-Compensation Claim
Two years and three months after the flu shot, Ms. Small filed a petition for
compensation under the Vaccine Act. The petition alleged that the flu shot caused a shoulder
injury related to vaccine administration or SIRVA, which refers to a class of injuries that the
Secretary of Health and Human Services has recognized by inclusion in the Vaccine Injury Table
as possibly caused by intramuscular vaccine injections administered in the upper arm. See 42
C.F.R. § 100.3(c)(10). The Secretary's inclusion of SIRVA in the Vaccine Injury Table entitles
petitioners alleging a SIRVA to a presumption that their flu shot caused their SIRVA, as long as
petitioners can prove the onset of the listed symptoms within the listed period. See Whitecotton
by Whitecotton v. Sec'y of Health & Human Servs., 81 F.3d 1099, 1102 (Fed. Cir. 1996) ("If
petitioner can make such a showing, causation is presumed and petitioner is deemed to have
made out a prima facie case of entitlement to compensation under the Act.").
The chief special master preliminarily assessed the case, and the Secretary decided to
defend against Ms. Small's petition. The chief special master then reassigned the case to Special
Master Millman.
Special Master Millman concluded that Ms. Small's injury was not a musculo-skeletal
SIRVA-type injury. Treating the injury as neurological, Special Master Millman recommended
that Ms. Small provide an opinion by a neurology expert. Ms. Small filed two expert reports
from her treating neurologist concluding that the flu shot injured a nerve in her arm; the resulting
pain caused her not to use her arm; and the disuse caused a reduced range of motion or "frozen
shoulder." (See Ex. 18; Ex. 19.) The Secretary filed a responsive expert report concluding that
Ms. Small's symptoms were inconsistent with the neurologist's conclusion that an earlier direct-
nerve injury was the likely cause of her later inability to raise her arm. (Ex. A.) The Secretary's
4
expert found that Ms. Small's allegedly injection-related symptoms were the "same" symptoms
that could be caused by her preexisting spinal condition. (Id) Ms. Small's neurologist
responded to the Secretary's expert in a third report (Ex. 20), and the Secretary's expert
responded to that response (Ex. C).
The parties reported difficulty agreeing on a hearing date. After Special Master Millman
retired, the case was reassigned to Special Master Horner, who decided to resolve the case
without holding a hearing, citing the parties' inability to agree on a hearing date. 3 (Order, June
24, 2019.) After full briefing from both sides, Special Master Horner issued a decision denying
compensation to Ms. Small.
After the special master issued his decision, Ms. Small submitted a letter informing the
special master that she would proceed pro se and requesting more time to prepare a motion for
review of the special master's decision. The special master's staff confirmed with Ms. Small's
counsel that he intended to withdraw from representing her. The special master then directed that
Ms. Small's letter be filed as a motion for review (Order, Nov. 26, 2019), and the case was
assigned to this judge for review of the special master's decision.
The document that the special master directed the clerk to file as Ms. Small's motion for
review included no memorandum of objections, so the Court considered Ms. Small's earlier-filed
Brief in Support of Vaccine Causation (filed July 24, 2019) as her arguments on review. 4 (See
Order, Dec. 9, 2019.) Accordingly, the Court reviewed the special master's conclusions that
were adverse to Ms. Small, the support for those conclusions in the record, the briefing submitted
before the special master by Ms. Small, and Ms. Small's medical records for relevant evidence
that was not considered by the special master.
3
Procedure in vaccine-injury compensation claims is governed by the Vaccine Rules, Appendix
B of the Rules of the Court of Federal Claims. Under Vaccine Rule 8(d) and 3(b)(2), a special
master has the discretion to decide a case without holding an evidentiary hearing as long as she
finds that the record was "comprehensive and fully developed before ruling on the record."
Kreizenbeck v. Sec'y ofHealth & Human Servs., 945 F.3d 1362, 1366 (Fed. Cir. 2020). The
special master specifically found that Ms. Small "had a full and fair opportunity to present Dr.
Szumski's opinions by filing three expert reports that clearly explain the basis for [Dr.
Szumski's] opinion." Decision at 4. That finding satisfies this requirement. The special
master's decision not to hold an evidentiary hearing was not an abuse of discretion.
4
The Court reasoned that allowing Ms. Small to supplement her motion for review with an
entirely new memorandum of objections after the 30-day deadline to file a motion for review had
passed would effectively extend the time to file a motion for review, contravening the Vaccine
Rule 23(b)'s prohibition on extensions of time. (Order, Dec. 9, 2019 (citing Widdoss v. Sec'y of
Dep 't of Health & Human Servs., 989 F.2d 1170, 1178 (Fed. Cir. 1993).)
5
II. ST AND ARD OF REVIEW
Under the Vaccine Act, this Court reviews a special master's decision only to determine
if it is "'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."'
A/then, 418 F.3d at 1277 (quoting 42 U.S.C. § 300aa-12(e)(2)(B)). More specifically, the Court
considers a special master's interpretation of statutes and other legal rules anew, without
deference to the special master. Hines on Behalf ofSevier v. Sec'y ofDep't ofHealth & Human
Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991). The Court defers, however, to the special master's
factual findings as long as the special master has (I) "considered the relevant evidence of
record," (2) "drawn plausible inferences," and (3) "articulated a rational basis for the decision." 5
Id.
Under the arbitrary and capricious standard, the Court does not "reweigh" or re-evaluate
the evidence. Porter v. Sec'y a/Health & Human Servs., 663 F.3d 1242, 1249 (Fed. Cir. 2011).
The Court does not re-examine the probative value of the evidence or a witness's credibility. Id.
III. DISCUSSION
In order for a claimant to recover compensation under the Vaccine Act, a vaccine must be
the substantial cause of the claimant's injury. For vaccines and injuries listed together in the
Secretary of Health and Human Services' Vaccine Table, the Vaccine Act presumes causation
upon proof of the injury's onset within the listed time period after receiving the vaccine. Ms.
Small did not allege a "table injury," 6 so she needed to prove that the flu vaccine was more likely
5
"The abuse of discretion standard is "ordinarily used where the [decisionmaker] had a finite
range of discretion (e.g. to select a penalty, or to award a specific sum as damages, from within a
range of permissible alternatives)." Hines on Behalf a/Sevier v. Sec'y o/Dep't a/Health &
Human Servs., 940 F.2d 1518, 1527 (Fed. Cir. 1991). This standard "will rarely come into play
except where the special master excludes evidence." Munn v. Sec'y of Dep't of Health & Human
Servs., 970 F.2d 863,870 (Fed. Cir. 1992); Isaac v. Sec'y of the Dep't a/Health & Human Servs.,
I 08 Fed. Cl. 743, 768 (rejecting petitioner's assertion that a special master's factual finding
could have been an "abuse of discretion" and applying the arbitrary and capricious standard to
review the finding), afl'd sub nom. Isaac v. Sec'y ofHealth & Human Servs., 540 F. App'x 999
(Fed. Cir. 2013).
6
Ms. Small was not entitled to the presumption of causation because the nerve injury described
by her expert neurologist is not listed in the Vaccine Table as an injury caused by the flu vaccine.
The musculoskeletal shoulder injury that Ms. Small's petition alleged as a "SIRVA" was added
to the Vaccine Table after Ms. Small filed her petition, but additions to the vaccine table are not
retroactive. 42 U.S.C. 300aa-14(c)(4) ("Any modification ... of the Vaccine Injury Table shall
apply only with respect to petitions for compensation under the Program which are filed after the
effective date of such regulation"); Revisions to the Vaccine Injury Table, 82 FR 6294, 6303
(Jan. 19,2017) (codified at 42 C.F.R. § 100.3) (adding SIRVA); Revisions to the Vaccine Injury
6
than not (by a "preponderance of the evidence") a substantial cause of her inability to raise her
arm.
The Federal Circuit has listed three prongs that together constitute preponderant evidence
that a vaccine caused an off-table injury. A/then, 418 F.3d at 1278. The special master correctly
applied these three "A/then prongs," requiring Ms. Small to show "(1) a medical theory causally
connecting the vaccination and the injury; (2) a logical sequence of cause and effect showing that
the vaccination was the reason for the injury; and (3) a showing of a proximate temporal
relationship between vaccination and injury." Decision at 21 (quoting A/then, 418 F.3d at 1278).
The special master accepted the medical theory proposed by Ms. Small's neurologist and
held that she satisfied Althen's first prong. The special master found, however, that Ms. Small
failed to satisfy the second and third prongs with sufficient proof of the facts Ms. Small's first-
prong medical theory required. The special master further considered whether Ms. Small could
prove the facts to establish causation under a SIRVA-theory, but found that Ms. Small's pre-
existing spinal condition excluded her symptoms from fitting within the definition of a SIRVA.
For an off-table injury claim, a petitioner's failure to satisfy any one of the three A/then
prongs requires the special master to deny relief. Accordingly, the Court reviews the special
master's holding that Ms. Small failed to satisfy prong two of the A/then test for preponderant
evidence of vaccine causation. The special master found that there was "not preponderant
evidence that [Ms. Small] experienced injection-related shoulder pain immediately following her
vaccination or at any time prior to August 8, 2013." Decision at 23. As long as the special
master (1) considered the record evidence relevant to whether Ms. Small experienced immediate
pain after her flu shot and (2) rationally explained how this evidence and any plausible
inferences the special master drew from it produced his ultimate finding, the Court is
"compelled" to uphold the special master's decision. Milik v. Sec'y ofHealth & Human Servs.,
822 F.3d 1367, 1376 (Fed. Cir. 2016).
A. Immediate Pain of Direct Nerve Injury
The expert report of Ms. Small's neurologist, Dr. Szumski, offered the medical theory
that a flu shot could immediately cause painful nerve damage to a vaccine recipient's arm, that
such pain could cause disuse of the affected arm, and that such disuse over time could cause a
limited range of motion in the affected arm. The special master accepted this direct-nerve-injury
theory as persuasive and held that it satisfied the first A/then prong. Decision at 22.
A/then prong two requires "proof of a logical sequence of cause and effect, usually
supported by facts derived from a petitioner's medical records." Decision at 22. Dr. Szumski's
expert report suggested the following sequence of cause and effect to fit the theory of causation it
used for prong one and to satisfy prong two: After her flu shot, Ms. Small suffered the
Table, Delay of Effective Date, 82 Fed. Reg. 11321 (Feb. 22, 2017) (delaying effective date of the
final rule that added SIRVA until March 21, 2017).
7
immediate onset of pain from nerve damage. She disfavored her left arm to avoid the pain. This
disuse of her left arm then gradually caused Ms. Small to develop a limited range of motion or
"frozen shoulder." Dr. Szumski relied on a notation from Ms. Small's physical therapist
suggesting that the provider suspected "frozen shoulder."
The special master held that Dr. Szumski's report failed to set forth a "logical sequence
of cause and effect" based on two factual findings: (a) there was "not preponderant evidence that
petitioner experienced injection-related shoulder pain immediately following her vaccination or
at any time prior to August 8, 2013," and (b) Ms. Small's one report of immediate post-
vaccination shoulder pain is "better explained by her [then-]ongoing and preexisting [spinal]
condition." Decision at 23.
1. No Immediate Injection-Related Pain
The records of Ms. Small's three doctor visits over the six months following her flu shot
include no mention of injection-related pain. From this absence of reported shoulder pain in Ms.
Small's records, the special master inferred that Ms. Small did not immediately experience
injection-related shoulder pain. He weighed this inference against claims in the affidavits of Ms.
Small and her daughter and the opinion of Dr. Szumski that Ms. Small did experience pain
immediately after the injection. Ultimately, the special master found that the lack of any report
of vaccine-related pain in Ms. Small's medical records outweighed the affidavits and Dr.
Szumski' s opinion.
"It has generally been held that oral testimony which is in conflict with contemporaneous
documents is entitled to little evidentiary weight." Vergara v. Sec'y a/Health & Human Servs.,
No. 08-882V, 2014 WL 2795491, at *4 (Fed. Cl. May 15, 2014) (citing Murphy v. Sec'y, HHS,
23 Cl. Ct. 726, 733 (1991), affdwithout opinion, 968 F.2d 1226 (Fed. Cir. 1992). While, "the
absence of a reference to specific symptoms in a medical record does not conclusively establish
the absence of symptoms during that time frame," id., medical records deserve some
presumption of accuracy and completeness because "proper treatment hang[ s] in the balance. " 7
Cucuras v. Sec'y ofDep't ofHealth & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
The inference that no immediate injection-related pain likely occurred based on the
absence of reports of pain in Ms. Small's medical records was plausible, when viewing the
record as a whole. The special master did not take the absence of symptoms in Ms. Small's
records as conclusive, but rather looked to the kinds of visits recorded and the period of time
over which they occurred in weighing the records' value against the expectation of immediate
shoulder pain suggested by Ms. Small's affidavit and Dr. Szumski's report. Decision at 16.
7
A similar theory of the inherent reliability of medical records and of statements made to
medical providers undergirds the exception to the prohibition on hearsay evidence for statements
made for medical diagnosis and treatment. See Fed. R. Evid. 803(4).
8
The inference was especially plausible considering that the doctor Ms. Small visited was
effectively her primary-care physician. One of the visits dealt with a similar kind of symptom
(neck pain) that might have required disclosure of arm pain for proper diagnosis and treatment.
Indeed, it was during a visit to the same doctor-albeit ten months after the flu shot-that Ms.
Small first reported injection-related symptoms. 8
Moreover, the special master considered and rationally distinguished decisions from
other special masters concluding that the timing of the onset of an injury can be proven even
when records of the injury fall outside of the relevant onset period. See Decision at 18. He
identified the length of Ms. Small's ten-month delay in reporting injection-related shoulder pain,
her two general doctor visits in the six months after vaccination, and contemporaneous records
suggesting that Ms. Small's symptoms are attributable to her pre-existing spinal condition as
distinguishing facts. Id.
Indeed, the Court's review of the relevant special master decisions accepting long delays
in the report of an immediate-onset injury confirms that Ms. Small's non-contemporaneous
evidence like her eventual report of shoulder pain to her doctor and her daughter's affidavit were
even more delayed and lacked the specificity of the non-contemporaneous evidence credited in
other cases. See, e.g., Forman-Franco v. Sec'y of Health & Human Servs., No. 15-1479V, 2018
WL 1835203 (Fed. Cl. Spec. Mstr. Feb. 21, 2018) (unpublished) (four-month delay, but with
testimony of petitioner's office manager, who testified that he had to help petitioner remove her
jacket the day after her vaccination); Tenneson v. Sec'y a/Health & Human Servs., 142 Fed. Cl.
329,339 (2019) (four-month delay, but medical records "repeatedly and consistently" placed
onset within 48 hours of the vaccination and overall pattern of treatment was consistent with
other SIRVA claims); Gurney v. Sec'y of Health & Human Servs., No. 17-481V, 2019 WL
2298790, at *5 (Fed. Cl. Mar. 19, 2019), reconsideration denied, No. 17-481V, 2019 WL
8
In concluding that the special master's inference was plausible, the Court gives no weight to
the portions of the doctor-visit records that the special master characterized as a "review of
symptoms" or "musculoskeletal physical exam" that was "negative for myalgias and joint pain,"
reflected a "[n]ormal range of motion," and no swelling ("edema"). Decision at 8. A footnote in
the special master's decision discloses that these "findings appear verbatim across a number of
encounters even when they appear inconsistent with Dr. Elad's more detailed notations." The
special master's footnote failed to note specifically that the record of the visit at which Ms. Small
actually reported shoulder pain and the inability to raise her arm still includes the text "negative
for myalgias and joint pain" and "[n]ormal range of motion" under the record's "Review of
Systems" and "Physical Exam." (See Ex. 2 at 5, 7.) The first change to these checklist-like
sections of Ms. Small's medical records does not appear until a late-2014 visit when the doctor
notes a thyroid cyst. (Id. at 3, 7, 11, 15, 19, 49, 53, 57.) Nevertheless, considering the absence
of shoulder pain in the substantive portions of the records, it was not unreasonable for the special
master to consider these records as evidence that Ms. Small did not immediately experience
shoulder pain from the flu shot.
9
2865490 (Fed. Cl. Apr. 24, 2019) (six-month delay, but with affidavit from doctor who
remembered petitioner's immediate complaints of pain).
It was reasonable for the special master to give his medical-records-based inference more
weight than the affidavits and Dr. Szumski's expert repmt. Ms. Small's affidavit claimed that
she returned to Rite Aid "a few months after the vaccine" to complain about her shoulder pain.
(Ex. 15 at 2.) The special master found this recollection inconsistent with the previously-
discussed lack of any mention of shoulder pain in the records of Ms. Small's doctor visits in the
months after the flu shot. Decision at 17. That Ms. Small sought primary care twice during that
period, the special master concluded, contradicted Ms. Small's explanation for her delay in
seeking care for the alleged injection-related pain. Id. Finally, the special master noted that Ms.
Small's affidavit did not address how Ms. Small was affected by her spinal condition after her
flu shot. Id.
The special master declined to credit the affidavit of Ms. Small's daughter claiming that
she observed Ms. Small suffering from shoulder pain after the flu shot because the affidavit
never specified a timeframe within the ten-month period before Ms. Small reported the
symptoms to her doctor and did not address Ms. Small's pre-existing spinal condition. Id.
The special master considered Dr. Szumski's repo1t infen-ing the onset ofinjection-
related shoulder pain as the cause of Ms. Small's eventual inability to raise her rum-first treated
by Dr. Szumski almost year after the flu shot. The special master offered multiple reasons why
he considered Dr. Szumski's opinion "unpersuasive overall." Decision at 23. Dr. Szumki's
opinion failed to address Ms. Small's preexisting spinal condition, which was noted in her
medical records as the cause of her condition at and following the time of vaccination. Id. Dr.
Szumski never actually observed or treated the direct-nerve injury that he believes led to Ms.
Small's "frozen shoulder." Id. at 24. Moreover, a musculoskeletal injury like frozen shoulder is
outside of Dr. Szumski's expertise as a neurologist. Id.
The special master considered that Dr. Szumski treated Ms. Small, but found the normal
deference to the findings of treating physicians unwarranted because Dr. Szumski "'only saw the
patient after the injury and based his opinion on the srune evidence as relied upon by the retained
experts."' Decision at 23-24 (quoting Nuttall v. Sec'y of Health & Human Servs., 122 Fed. Cl.
821, 832 (2015), ajf'd, 640 Fed. Appx. 996 (Fed. Cir. 2016)).
The Court finds especially persuasive the special master's observation that neither Dr.
Szumski' s treatment records nor his later expert reports indicate that he considered or was even
aware of Ms. Small's pre-vaccination spinal condition and reports of neck pain radiating into her
upper extremities. Decision at 16. It was not e1Tor for the special master to reject an expert
opinion that failed to address a pre-existing condition that-even from a lay review of Ms.
Small's medical records-was a possible source of the symptoms Ms. Small attributes to the flu
shot.
Without proof of a distinct injury following the shot, the special master found no logical
sequence of events that demonstrated the petitioner's direct nerve injury theory of causation
10
under A/then prong two. 9 Having failed to meet the second of the A/then prongs, Ms. Small's
claim failed at this stage.
2. Next-Day Pain Was Likely Caused by Spinal Condition
A list of"problems" in Ms. Small's physical-therapy evaluation performed the day after
her flu shot lists "radicular" left-shoulder pain. The special master analyzed the meaning of
"radicular" in the context of shoulder pain and concluded that it referred to the inflammation or
impingement of nerve roots, possibly by a bony spur, a condition that could cause neck or
shoulder pain. Decision at 16 n.21. The special master further noted that the respondent's expert
report confirmed that Ms. Small's spinal condition could cause left-arm radicular pain. Id The
special master found that the "radicular" left-shoulder pain described in Ms. Small's next-day
physical therapy evaluation was most likely caused by her pre-existing spinal condition, which
was documented to have caused pain radiating into her arms. It was rational for the special
master to consider the physical therapist's use of the term "radicular" as evidence that the left
shoulder pain was caused by Ms. Small's pre-existing spinal condition and was not injection-
related.
Although Ms. Small was seeking physical therapy for her spinal condition and nothing in
the record indicates that the physical therapist knew of Ms. Small's recent flu shot, the physical
therapist was on notice to consider alternate causes of Ms. Small's pain. The evaluation record
shows that Ms. Small suggested a "strain" from lifting her husband as the cause of her pain,
rather than her recently-diagnosed spinal condition or the flu shot. (Ex. 5 at 16.) Despite this
suggestion from Ms. Small, the provider still characterized the shoulder pain as "radicular." This
professional's contemporaneous use of the technical term "radicular" on a record presumably
made primarily for reference by her and other professionals, even ifrecording the patient's self-
report of symptoms, implicates the professional' s judgment that a term like "radicular" applies to
the pain the patient is describing. The physical therapist could have omitted "radicular"
altogether or used a broader descriptor if she had doubts about the cause of Ms. Small's left
shoulder pain. The special master's conclusion that Ms. Small's next-day left-shoulder pain was
not evidence of a direct-nerve injury but was more likely caused by her spinal condition, was
rational.
B. SIRVA Criteria
The Court finds no error in the special master's conclusion that Ms. Small could not
prove the musculoskeletal SIRVA injury she alleged in her petition as an alternative to her
neurologist's theory of direct nerve injury. "SIRVA is a specific concept by which some
musculoskeletal injuries temporally associated to vaccination are deemed to have been vaccine
caused where they meet certain criteria that rule out other causes." Decision at 22 (emphasis
9
Without proof of a distinct injury, the special master could not judge whether the
vaccination and injury were close enough in time to each other to infer a cause and effect
relationship under Althen's prong three.
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added). The SIRVA concept has been used as a theory of causation in off-table claims under
A/then prong one, based on the Secretary's rulemaking establishing SIRVA as a Table injury and
the Secretary's history of conceding causation in prior, pre-Table SIRVA claims. See, e.g.,
Tenneson v. Sec'y of Health & Human Servs., No. 16-1664V, 2018 WL 3083140, at *7 (Fed. Cl.
Spec. Mstr. Mar. 30, 2018), review denied, 142 Fed. Cl. 329 (2019).
The Court agrees with the special master that Ms. Small's pre-existing spinal condition-
documented to cause pain in her upper arms-is a "condition or abnormality [] present that
would explain the vaccine recipient's symptoms." 42 C.F.R. § 100.3(10)(iv) (listing exclusions
from the definition of a SIRVA). With the fact of Ms. Small's pre-existing spinal condition
definitionally excluding her symptoms from fitting within the SIRVA-injury concept, Ms. Small
could show no other facts under Althen's second prong that would demonstrate a logical
sequence of cause and effect consistent with a SIRVA theory of causation.
IV. CONCLUSION
Failing to show the existence of either the direct nerve injury or SIRVA that she alleged
that her flu shot caused, Ms. Small failed to prove that a vaccine caused her injury under A/then.
The special master considered the evidence relevant to this finding and explained his reasons for
crediting or discounting it. The special master's decision denying compensation was not
arbitrary and capricious or contrary to law. The petitioner's motion for review is DENIED. The
Clerk is directed to enter final judgment accordingly. Each side will bear its own costs.
It is so ORDERED.
/k,,j A.JI~
Richard A. Hertling
Judge
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