Walker v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1674V
Filed: June 10, 2020
(Not to be published)
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MARTHA WALKER, *
*
Petitioner, * Findings of Fact; Onset;
* Shoulder Injury Related to Vaccine
v. * Administration (“SIRVA”).
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
*
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Phyllis Widman, Jacobs & Barbone, Atlantic City, NJ, for Petitioner.
Sarah Duncan, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ONSET1
Oler, Special Master:
On October 30, 2018, Martha Walker (“Ms. Walker” or “Petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10,
et seq.2 (the “Vaccine Act” or “Program”). The petition alleges that the influenza (“flu”) vaccine
1
Because this unpublished ruling contains a reasoned explanation for the action in this case, I intend to post
it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002.
44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services).
This means the Decision will be available to anyone with access to the internet. However, the parties
may object to the Decision’s inclusion of certain kinds of confidential information. Specifically, under
Vaccine Rule 18(b), 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, the whole Decision 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).
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Case 1:18-vv-01674-UNJ Document 35 Filed 06/10/20 Page 2 of 7
Ms. Walker received on September 2, 2017 caused her to suffer a Shoulder Injury Related to
Vaccine Administration (“SIRVA”). Pet. at 1.
During the pendency of this matter, Petitioner submitted two affidavits that she authored
as well as a letter from her husband, Larry Walker.
After carefully considering the medical records, affidavits, and documentary evidence, I
find that Petitioner’s left shoulder pain began the day of her vaccination.
I. Procedural History
On October 30, 2018, Petitioner filed a petition alleging that she suffered from SIRVA as
a result of a flu vaccine administered on September 2, 2017. Pet., ECF No. 1. Petitioner filed
medical records on November 9, 2018. Exs. 1, 3, 4, 5, 6. She filed a statement of completion on
that same day. ECF No. 8.
On October 18, 2019, Respondent filed a Rule 4(c) Report. ECF No. 22. Respondent’s
report states that Petitioner has not demonstrated that she suffered from a SIRVA Table claim, and
further that she has not provided evidence that satisfies her burden of proof under Althen v. Sec’y
of Health & Human Servs., 418 F.3d 1274 (Fed. Cir. 2005). Resp’s Rept. at 6-8.
I held a status conference with the parties on March 3, 2020. See ECF No. 27. During the
status conference, I informed Ms. Widman that I wanted Petitioner to submit a supplemental
affidavit indicating why she did not mention shoulder pain at any of her doctor’s visits prior to
January 23, 2018. Id. The parties also discussed the need for a determination on onset. I asked
both sides to indicate whether a ruling on the record regarding onset would be acceptable. Id.
On March 23, 2020, Petitioner filed her supplemental affidavit. Ex. 7. On that same date,
Respondent filed a status report indicating his amenability to a ruling on the record regarding onset.
ECF No. 29. On May 5, 2020, Petitioner filed a letter from her husband, Larry Smith. Ex. 8. She
also filed her motion for a ruling on the record on onset, along with her supporting argument. ECF
No. 32. Respondent filed his response on May 22, 2020. ECF No. 33.
On May 22, 2020, Petitioner sadly passed away, and I ordered Ms. Widman to file a death
certificate and a status report regarding letters of estate administration. See Non-PDF Order dated
May 27, 2020.
This matter is now ripe for adjudication regarding onset.
II. Petitioner’s Relevant Medical Records
Petitioner was born in 1949. She was 67 years old on September 2, 2017, when she
received the allegedly causal flu vaccination in her left deltoid at Tom Thumb Pharmacy. Ex. 1 at
3.
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Petitioner went to Dallas Sleep on September 20, 2017 to follow up on the use of her CPAP
machine. Ex. 5 at 13. There is no indication in the record that Petitioner mentioned shoulder pain
during this visit.
Petitioner next sought medical treatment on September 21, 2017. She was seen at the
Digestive Health Associates of Texas for a colonoscopy consultation. Ex. 3 at 475. During this
visit, Petitioner answered general questions about her health. The “Musculoskeletal” portion of
the Review of Systems section of this record indicates that Petitioner denied having swollen joints,
joint stiffness, or muscle pain. Id. at 476.
On October 27, 2017, Petitioner visited Dr. Gregory Ennis at Village Health Partners for a
follow up regarding her hyperlipidemia. Ex. 3 at 22. There is no indication in the record that
Petitioner mentioned shoulder pain during this visit.
Petitioner visited her dermatologist for an annual skin check on November 17, 2017. Ex.
3 at 470. There is no indication in the record that Petitioner mentioned shoulder pain during this
visit.
On January 23, 2018, Petitioner emailed her PCP, Dr. Ennis. She wrote, “I had a flu shot
in early September, and my arm has hurt since that time. It has not improved, and in fact is getting
worse. It's beginning to wake me in the night and is starting to limit my use.” Ex. 3 at 16. She
requested a medical appointment.
Petitioner visited Dr. Ennis on February 1, 2018. The reason for the appointment is listed
as arm pain. Ex. 3 at 13. The notes from this visit state, “Patient states that she got a flu shot in
9/2/18 [sic], she states that her arm has been hurting since then, pain was so bad that he [sic] almost
fell out, pt not abe [sic] to lift, move her arm back or up. Hurt [] when she was given the shot
(which is not normal). She says the pain even radiates down into left arm/hand at times. Has not
tried heat or ice. Just started taking advil at night which helps.” Id. She was scheduled to follow
up in three months. Id. at 14-15.
On that same day, February 1, 2018, Petitioner also visited Dallas Sleep for a follow up on
her sleep apnea. Ex. 5 at 17-18. The Musculoskeletal section of this record indicates that Petitioner
denied having stiff/sore joints and muscle pain. Id. at 18. There is no indication in the record that
Petitioner mentioned shoulder pain during this visit.
Petitioner emailed Dr. Ennis on February 21, 2018. She stated, “When I was in a few
weeks ago with my left arm pain, you said if it wasn't gone in a couple of weeks to let you know.
I'm letting you know. It still hurts!” Ex. 3 at 9. Based on this correspondence, Dr. Ennis placed
a referral into the system to Tarpon Orthopedics. Id.
On March 2, 2018, Petitioner visited Dr. Daniel Sunwoo at Tarpon Orthopedics for left
upper arm pain. Ex. 6 at 19. Her chief complaint is listed as “left upper arm pain at the deltoid
muscle.” Id. The onset is specified at “9/2/2017”. Id. The assessment states that “68 year old
female presents with left upper arm pain. Pain started on 9/2/17 after having a flu vaccination.”
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Id. at 21. Dr. Sunwoo assessed her with left shoulder pain and left adhesive capsulitis. Id. He
referred her to PT. Id.
Petitioner began PT on March 19, 2018. Ex. 4 at 39. During this initial visit, Petitioner
stated that “she noticed increased shoulder pain post flu shot.” Id. Specifically, when completing
the rehabilitation questionnaire, Petitioner indicated that her pain began on “9-2-17”. Id. at 27. In
responding to the question, “How did the injury/problem occur?” Petitioner wrote, “flu shot”. Id.
Petitioner completed a total of nine PT sessions; the last session took place on April 5, 2018. Id.
at 3. She was discharged from PT on May 15, 2018 because she did not return after her last session.
Id. at 1.
III. The Petition, Affidavits, and Documentary Evidence
The Petition filed in this matter states that Petitioner experienced a SIRVA following her
September 2, 2017 flu vaccination. Pet. at 1.
A. Affidavits and Documentary Evidence
1. Affidavit of Ms. Martha Walker
In support of her Petition, Ms. Walker signed her affidavit on October 29, 2018. Ex. 2. In
it, she stated that her arm began to hurt immediately after she received her flu vaccination on
September 2, 2017. Id. at 1. For five days after she received the vaccine, she stated that she could
barely move her arm. Id. Then after the first five days passed, her arm only hurt if she “touched
it or bent it a certain way.” Id. at 2.
After a couple of months, when the pain had not subsided, Petitioner stated that she went
to see her primary care doctor, who referred her to an orthopedist. Ex. 2 at 2. Dr. Sunwoo referred
her to physical therapy. Id. Petitioner stated that PT did not improve her pain. Id.
Petitioner stated that the pain from her arm has prevented her from engaging in the
activities she once enjoyed. Ex. 2 at 2. She stated that her arm now aches when she is not moving
it. Id.
2. Supplemental Affidavit of Ms. Martha Walker
Petitioner completed her supplemental affidavit on March 21, 2020. Ex. 7. In this
document, Petitioner stated that five days after she received her flu vaccination, her husband went
to see the nurse who administered the vaccine at Tom Thumb Pharmacy. Id. at 1. He told the
nurse that Petitioner was still experiencing pain. Id. According to Petitioner, the nurse told her
husband that the pain was normal and would go away. Id.
Petitioner explained that she did not speak with a health care professional about her arm
pain because she believed the nurse and thought that her pain would dissipate. Ex. 7 at 1. By
January of 2018, Petitioner stated that she could not stand the pain any longer and requested an
appointment with Dr. Ennis. Id.
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3. Letter from Mr. Larry Smith
Mr. Smith is Petitioner’s husband. He wrote a short note to Petitioner’s attorney. Ex. 8.
In this document, Mr. Smith stated that he went to visit the nurse after a few weeks because
Petitioner was still experiencing pain. Id. According to Mr. Smith, “the nurse said it was normal.”
Id.
IV. Legal Standards Regarding Fact Finding
Petitioner bears the burden of establishing her claim by a preponderance of the evidence.
42 U.S.C. § 300aa-13(1)(a). 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 before [he or she] may find in
favor of the party who has the burden to persuade the judge of the fact’s existence.” Moberly v.
Sec’y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations omitted).
In order to make a determination concerning factual issues, such as the timing of onset of
petitioner’s alleged injury, the special master should first look to the medical records. “Medical
records, in general, warrant consideration as trustworthy evidence. The records contain
information supplied to or by health professionals to facilitate diagnosis and treatment of medical
conditions. With proper treatment hanging in the balance, accuracy has an extra premium.”
Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993); Lowrie v.
Sec’y of Health & Human Servs., No. 03-1585V, 2006 WL 3734216, at *8 (Fed. Cl. Spec. Mstr.
Nov. 29, 2006). Medical records created contemporaneously with the events they describe are
presumed to be accurate and complete. Doe/70 v. Sec’y of Health & Human Servs., 95 Fed. Cl.
598, 608 (2010).
Contemporaneous medical records generally merit greater evidentiary weight than oral
testimony; this is particularly true where such testimony conflicts with the record evidence.
Cucuras, 993 F.2d at 1528; see also Murphy v. Sec’y of Health & Human Servs., 23 Cl. Ct. 726,
733 (1991), aff’d, 968 F.2d 1226 (Fed. Cir. 1992) (citing United States v. United States Gypsum
Co., 333 U.S. 364, 396 (1947) (“It has generally been held that oral testimony which is in conflict
with contemporaneous documents is entitled to little evidentiary weight”)). “Written
documentation recorded by a disinterested person at or soon after the event at issue is generally
more reliable than the recollection of a party to a lawsuit many years later.” Reusser v. Sec’y of
Health & Human Servs., 28 Fed. Cl. 516, 523 (1993).
However, there are situations in which compelling oral testimony may be more persuasive
than written records--for instance in cases where records are found to be incomplete or inaccurate.
Campbell, 69 Fed. Cl. at 779 (“like any norm based upon common sense and experience, this rule
should not be treated as an absolute and must yield where the factual predicates for its application
are weak or lacking”); Lowrie, 2005 WL 6117475, at *19 (“Written records which are, themselves,
inconsistent, should be accorded less deference than those which are internally consistent”)
(quoting Murphy, 23 Cl. Ct. at 733).
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When witness testimony is used to overcome the presumption of accuracy afforded to
contemporaneous medical records, such testimony must be “consistent, clear, cogent, and
compelling.” Sanchez v. Sec’y of Health & Human Servs., No. 11-685V, 2013 WL 1880825 (Fed.
Cl. Spec. Mstr. Apr. 10, 2013)(citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808V,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In determining the accuracy and
completeness of medical records, the Court of Federal Claims has listed four possible explanations
for inconsistencies between contemporaneously created medical records and later testimony: (1) a
person’s failure to recount to the medical professional everything that happened during the relevant
time period; (2) the medical professional’s failure to document everything reported to her or him;
(3) a person’s faulty recollection of the events when presenting testimony; or (4) a person’s
purposeful recounting of symptoms that did not exist. La Londe v. Sec’y of Health & Human
Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1334 (Fed. Cir. 2014). A special master
making a determination whether to afford greater weight to contemporaneous medical records or
other evidence, such as testimony at a hearing must have evidence suggesting the decision was a
rational determination. Burns by Burns v. Sec’y of Health & Human Servs., 3 F.3d 415, 417 (Fed.
Cir. 1993).
V. Findings of Fact
The issue to be addressed is when Petitioner’s symptoms of left shoulder pain began.
Petitioner has the burden of demonstrating the facts necessary for entitlement to an award by a
preponderance of the evidence. § 300aa-12(a)(1)(A). Under that standard, the existence of a fact
must be shown to be “more probable than its nonexistence.” In re Winship, 397 U.S. 358, 371
(1970) (Harlan, J., concurring). In light of the medical records, affidavits, and other documentary
evidence presented in this case, and after my careful examination of the record as a whole, I find
there is preponderant evidence that the onset of Petitioner’s symptoms of left shoulder pain began
on September 2, 2017, the day of vaccination.
In her affidavits, Petitioner attests that she experienced pain the same day that she received
her flu vaccination. I find her statements on this point to be credible, and further find this evidence
is corroborated by her medical records.
Petitioner attended four medical appointments between the date of vaccination and the date
she emailed Dr. Ennis; she did not mention the pain in her shoulder during any of those four visits.
Additionally, in several of these appointments, the records indicate that Petitioner was generally
not experiencing joint pain. I note that I would not expect Petitioner to discuss shoulder pain at an
appointment with Dallas Sleep, where she was scheduled for a follow up regarding her CPAP
machine, at a colonoscopy consult, or at an appointment with her dermatologist. See, e.g., Williams
v. Sec’y of Health and Human Servs., 2019 U.S. Claims LEXIS 176 at *23 (Fed. Cl. Spec. Mstr.
Jan. 31, 2019) (finding onset of SIRVA within 48 hours despite four intervening medical
encounters that did not reference shoulder pain because the medical appointments “were for
specific medical concerns unrelated to petitioner’s left shoulder concern.”). This point is
reinforced by the fact that Petitioner did not mention shoulder pain when she made an additional
visit to Dallas Sleep, the same day she had her first medical visit with Dr. Ennis to discuss her
shoulder pain.
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The appointment on October 27, 2017 was not with a specialist. This medical appointment
was with Dr. Ennis (her PCP) to follow up regarding her hyperlipidemia. A visit with a PCP seems
to be a more likely time to discuss general medical concerns. Petitioner explained that she did not
report pain at these initial appointments (to include the October 27, 2017 appointment with Dr.
Ennis) because the nurse who administered her flu vaccination said that the pain was normal and
would go away. Petitioner explained that when she was unable to tolerate the pain any longer, she
sought medical attention. I find this explanation to be credible.
Petitioner emailed her PCP on January 23, 2018. In this email, she stated “I had a flu shot
in early September, and my arm has hurt since that time.” Ex. 3 at 16. While this statement
regarding onset was delayed, it was both precise and unequivocal. Additionally, during
Petitioner’s medical appointments after January 23, 2018, she consistently attributed her left
shoulder pain to her flu shot. See Ex. 6 at 19; Ex. 4 at 27, 39. Accordingly, Petitioner’s medical
records support a finding that Petitioner experienced pain on the same day as her flu vaccination.
VI. Conclusion
I find that the affidavits and documentary evidence submitted by and on behalf of Petitioner
and the medical records work in concert to provide preponderant evidence that Petitioner’s left
shoulder pain began on September 2, 2017.
The following is therefore ORDERED:
By no later than Monday July 27, 2020, Petitioner and Respondent shall file a joint status
report updating me on their proposed next steps in the case based on the facts articulated in this
ruling.
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
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