In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 18-0832V

UNPUBLISHED

KIMBERLY A. PURTILL,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Chief Special Master Corcoran 

Dated: November 12, 2019

Special Processing Unit (SPU);

Motion to Dismiss; Six Month 

Residual Effects or Sequelae;

Influenza (Flu) Vaccine; Shoulder 

Injury Related to Vaccine 

Administration (SIRVA)

Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.

Robert Paul Coleman, III, U.S. Department of Justice, Washington, DC, for Respondent.

ORDER DENYING MOTION TO DISMISS AND FINDING OF FACT ON 

SIX MONTH REQUIREMENT 1

On June 12, 2018, Kimberly Purtill filed a petition for compensation under the 

National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.,

2

(the 

“Vaccine Act”). An amended petition was filed on July 31, 2018 (ECF No. 9). In it, 

Petitioner alleges that she suffered a left shoulder injury related to vaccine administration 

(“SIRVA”) as a result of a September 30, 2015 influenza (“flu”) vaccine. Petition at 1. The 

case was assigned to the Special Processing Unit (“SPU”) of the Office of Special 

Masters.

 

1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am 

required to post it on the United States Court of Federal Claims' website in accordance with the EGovernment Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of 

Electronic Government Services). This means the decision will be available to anyone with access to 

the internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to 

redact medical or other information, the disclosure of which would constitute an unwarranted invasion of 

privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such 

material from public access. 

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for 

ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. 

§ 300aa (2012).
2

Respondent has now filed a motion to dismiss the petition, alleging that Petitioner 

has failed to provide evidence to satisfy the six-month severity requirement set forth in 

Section 11(c)(1)(D)(i) of the Vaccine Act (ECF No. 25). For the reasons discussed below, 

Respondent’s motion is denied.

I. Factual Background

On September 30, 2015, Ms. Purtill, then a 53-year old virtual critical care 

supervisor and registered nurse, received a flu vaccine intramuscularly into her left arm. 

Petitioner’s Exhibit (“Pet. Ex.”) 1 at 1; 3 at 8. In her affidavit, Petitioner avers that she felt

pain in her left shoulder “[i]mmediately after vaccination.” Pet. Ex. 5 at 1 ¶ 3. She averred 

that she expected the pain would go away but that instead it got worse. Id. 

On October 21, 2015, Petitioner reported to an urgent care center operated by her 

employer, Carolinas Health System. Pet. Ex. 3 at 1. Her chief complaint was that she 

had gotten a flu shot on September 30 and that her left shoulder joint was still “hurting a 

lot.” Id. She reported that she received her flu shot with a 20-gauge one inch needle in 

her left deltoid three weeks earlier. Id. The evening of the flu shot, she noticed mild 

aching pain in her left shoulder, and the pain had progressed since then. Id. She reported 

that the pain was worse with abduction and forward flexion of the left shoulder and was 

somewhat improved with Aleve. Id. She denied a history of left shoulder pain. Id. She 

was given prednisone. Id. at 2. 

A Work Status/Treatment Report, also dated October 21, 2015, indicated that 

Petitioner’s injury occurred on September 30, 2015. Pet. Ex. 2 at 1; 3 at 7. A Radiology 

Interpretation Requisition from the same date indicates that Petitioner had normal left 

shoulder studies. Pet. Ex. 3 at 5. The clinical indication for the studies was flu vaccine 

in Petitioner’s left arm four weeks earlier and complaints of pain for four weeks. Id. 

On November 16, 2015, Petitioner reported to Carolinas Healthcare System’s

Employee Health Division and was examined by Dr. Larry Raymond. Pet. Ex. 3 at 8. She

reported persisting and worsening left shoulder pain for six weeks due to a flu shot on 

September 30, 2015. Id. She reported that both abduction and adduction were quite 

painful. Id. She reported waking at night when she rolled over. Id. She reported that a 

steroid taper had eliminated the radiating pain that was reaching her left elbow but that 

local deltoid pain and tenderness remained. Id. Petitioner reported no prior left shoulder 

discomfort or similar reaction to a flu shot. Id. 

On examination, Dr. Raymond found that Petitioner exhibited evidence of left 

rotator cuff tendinitis, left deltoid myositis, and focal tenderness to palpation. Pet. Ex. 3 

at 8. Dr. Raymond noted positive Neer’s and empty can impingement signs, as well as 

other signs of rotator cuff tendinitis. Id. Dr. Raymond assessed Petitioner with an 

“[a]dverse effect of influenza immunization with L deltoid myositis and brachial neuritis 

also involving rotator cuff (supraspinatus & infraspinatus).” Id. 
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Dr. Raymond prescribed a non-steroidal anti-inflammatory drug (“NSAID”) and 

topical diclofenac gel. Pet. Ex. 3 at 8. He noted that Petitioner may need to be seen 

again in 1-2 weeks. Id. 

On March 23, 2016, Petitioner reported to Dr. Raymond for a follow up 

examination. Pet. Ex. 3 at 9. The record noted that she had left shoulder pain after a flu 

shot in the fall and got “quite a lot of relief” from a prednisone taper. Pain donning her 

shirt or rolling over in her sleep “got up to 8/10.” Id. The pain locations were recorded as 

“L retroclavicular, L forearm radiating up to shoulder, some L supraspinatus.” Id. The 

note continues, “No (sic) pain is gone except occ. 2 of 10 in” left supraspinatus area 

donning shirt. Id. I interpret the “no” in this sentence as meaning “now.” With this 

interpretation, the record indicates that as of March 23, 2016, Petitioner’s pain was gone,

except for occasional relatively minor pain while putting on a shirt. 

On examination, Dr. Raymond noted “[n]o discomfort induced by ‘JAMA 2014’ 

maneuvers (painful arc and pressing dorsum of hands into thoracic spine). Pet. Ex. 3 at 

9. Dr. Raymond summarized that, “[a]fter 4 months of pain, the steroid taper 40/day x 3 

down to 5 mg/d over 10 days erased most of her pain.” Id. (emphasis added). He 

indicated a reluctance to prescribe more prednisone and noted that Petitioner did not 

want that either. Id. Dr. Raymond’s treatment plan noted that “shoulder rolls and other 

ROM exercises may help prolong her remission. If pain recurs, will refer her for PT.” Pet. 

Ex. 3 at 9. He noted that he did not think that an orthopedic referral would help at this 

time. Id. At the bottom of the page, underneath Dr. Raymond’s signature, there is a note 

stating, “Next seen @ Med OV for unrelated matter, 5/27/16, No mention of shoulder.” 

Id. 

In her supplemental affidavit, Petitioner averred that on March 23, 2016, she 

reported to Dr. Raymond “that following two courses of prednisone my left shoulder pain 

had mostly resolved, however, my range of motion was limited, my left arm strength was 

limited and I experienced increased pain with the use of my arm. I continued to take Aleve 

twice daily to control my symptoms, in addition to heat or ice and use of an over the 

counter TENS unit (transcutaneous electrical nerve stimulation).” Pet. Ex. 7 at ¶ 7. 

Petitioner reported that Dr. Raymond instructed her to perform home exercises and return 

if her pain increased. Id. at ¶ 8. Petitioner averred that she “did not return to Dr. Raymond 

as my pain leveled off, and I did not believe that anything further could be done to treat 

my left shoulder pain.” Id. at ¶ 9. 

On May 27, 2016, Petitioner was seen by physician assistant Timothy Kelley. Pet. 

Ex. 4 at 129. She reported that she would like to discontinue an anxiety/depression 

medication secondary to possible gastrointestinal issues. Id. There is no indication at 

this time that she reported shoulder pain, and no musculoskeletal examination was 

recorded. Id. at 129-146. 

On September 2, 2016, Petitioner was seen by physician assistant Timothy Kelley 

for anxiety. Pet. Ex. 4 at 61. There is again no indication that she reported shoulder pain, 
4

and no musculoskeletal examination was recorded. Id. at 61-78. The page following this 

record is an undated request for medical exemption from the influenza vaccination for 

2016-2017 indicating that Petitioner had “a contraindication that warrant[ed] a medical 

exemption from the influenza vaccine.” Pet. Ex. 4 at 65. The form is signed by physician 

assistant Kelley. Id. 

On October 31, 2016, Petitioner reported to Dr. Grant Campbell for an annual well 

women examination. Pet. Ex. 6 at 7. There is no indication that she reported shoulder 

pain. Id. at 7-23. In the musculoskeletal section of the review of systems, the record 

states “Negative.” Pet. Ex. 6 at 7. In the physical examination section, the record states, 

“Normal range of motion, No deformity.” Id. 

On November 29, 2016, Petitioner reported to Dr. Timothy Hodges complaining of 

bilateral scapular pain, bilateral flank pain, and intractable headache. Pet. Ex. 4 at 80. 

Petitioner reported bilateral scapular pain and flank pain since November 1, 2016. Id. 

The scapular tenderness was not made worse by flexion, extension, or lateral rotation, 

and was worst when she was recumbent lying in bed. Id. On examination, she was found 

to have “[b]ilateral trapezius spasm with palpable tenderness.” Id. at 82. She was 

diagnosed with chronic scapular pain and instructed to follow up in one to two weeks. Id. 

Chest radiology studies were done and found to be normal on November 29, 2016. 

Pet. Ex. 4 at 95. The testing was done due to “upper back pain for about 1 month.” Id. 

Petitioner was excused from work for the day. Id. at 113. 

In her supplemental affidavit, Petitioner stated, “I did discuss my ongoing left 

shoulder pain with my primary care physician at routine visits.” Pet. Ex. 7 at ¶ 9. She 

does not provide dates of these discussions and does not indicate the nature and 

resolution of the discussions. The only primary care record that refers to shoulder pain 

is the November 29, 2016 visit with Dr. Hodges for bilateral scapular pain, Pet. Ex. 4 at 

80. 

II. Relevant Procedural History

Petitioner filed with her petition medical records and an affidavit as Pet. Exs. 1-5 

(ECF No. 1) and filed a Statement of Completion on June 14, 2018 (ECF No. 5). 

Following the initial status conference on July 23, 2018, Petitioner was directed to file 

additional medical records (ECF No. 8). On July 31, 2018, Petitioner filed an amended 

petition, additional medical records, and a Statement of Completion (ECF Nos. 9-11). 

On April 8, 2019, Respondent filed a status report stating that he had requested 

from Petitioner that she file proof that she satisfied the six-month severity requirement to 

demonstrate entitlement to compensation (ECF No. 19). On April 23, 2019, Petitioner 

was directed to file evidence demonstrating that she suffered the effects of her injury for 

at least six months and an amended Statement of Completion (ECF No. 20). On the 
5

same day, April 23, 2019, Petitioner filed an amended Statement of Completion (ECF No. 

21). Petitioner stated:

On March 23, 2016, five (5) months and twenty-three (23) days following 

receipt of the influenza vaccine, Petitioner returned to Dr. Raymond with 

ongoing left shoulder pain. At that time, she reported, “Pain donning shirt 

or rolling over in sleep got up to an 8/10.” At that time Dr. Raymond 

recommended home-exercises.

There are no additional medical records.

Petitioner’s Amended Statement of Completion, filed April 23, 2019 (ECF No. 21). 

On July 31, 2019, Respondent filed a Rule 4(c) report and motion to dismiss (ECF 

Nos. 24, 25). Respondent argued that Petitioner was not entitled to compensation 

because she had not satisfied the six month severity requirement. Rule 4(c) report at 4. 

Respondent stated that although Petitioner attended medical appointments outside of the 

six-month timeframe, “at none of those visits did she mention any left shoulder 

complaints. See Ex. 4 at 80-86, 95-96, 109, 115-119, 129-131.” Id. at 4-5. Respondent 

further noted that at Petitioner’s March 23, 2016 visit, Dr. Raymond “indicated that 

petitioner’s condition was much improved and that she did not require any additional 

medication.” Id. at 5 (citing Pet. Ex. 3 at 9). Thus, Respondent asserted that there was 

an “absence of any objective contemporaneous evidence that petitioner suffered from left 

shoulder pain more than six months after the September 30. 2015 vaccine was 

administered” and thus had failed to demonstrate entitlement to compensation. Id. at 5. 

Thus, Respondent argued that the petition should be dismissed. Id. 

On August 16, 2019, Petitioner filed a supplemental affidavit, Pet. Ex. 7, and a 

response opposing the motion to dismiss (ECF Nos. 27, 28). Petitioner argued that 

respondent’s motion to dismiss should be denied because “the evidence submitted 

demonstrates by preponderant evidence that her left shoulder injuries continued through 

March 30, 2016.” Petitioner’s Response at 1. Petitioner asserted that pursuant to Court 

of Federal Claims Rule 56(a) and Vaccine Rule 8(d), the court should enter judgment in 

favor of a moving party if there is no genuine dispute as to any material fact and the 

moving party is entitled to judgment as a matter of law. Id. at 3. Petitioner argued, 

“[d]ismissal is not appropriate if it appears the parties reasonably contest the length of 

time that petitioner has suffered from the effects of his alleged vaccine injury.” Id. at 4. 

Petitioner asserted that her medical records and affidavits established that it was 

more likely than not that she suffered the residual effects of her left shoulder injury for at 

least six months after her flu shot. Petitioner’s Response at 4. Petitioner argued that 

residual effects are “symptoms manifested due to the vaccine related injury” and that 
6

“[d]ischarge from medical care does not necessarily indicate there are no residual 

effects.” Id. 

Petitioner argued that her medical records reflected that on March 23, 2016, five 

months and 24 days following her vaccination, she reported that a steroid taper “erased . 

. . most of her [left shoulder] pain.” Petitioner’s Response at 5 (emphasis in original). 

Petitioner argued that in this context, the use of the term “most” implied that not all of her 

left shoulder pain had resolved. Id. Petitioner asserted that her affidavit corroborates 

this, indicating that while a second taper of steroids improved her symptoms, she still had 

limited range of motion and weakness in her left shoulder. Id. Petitioner acknowledged

that her medical records did not corroborate all of her symptoms, but Dr. Raymond’s 

records noted some residual symptoms of her left shoulder pain. Id. Petitioner argued

that her affidavit, as supported by her medical records, demonstrated by preponderant 

evidence that she suffered the residual effects of her injury for at least six months. Id. 

III. Relevant Legal Standards

Under the Vaccine Act, a petition for compensation must contain “supporting 

documentation, demonstrating that the person who suffered [a vaccine related injury] ... 

suffered the residual effects or complications of such illness, disability, injury, or condition 

for more than 6 months after the administration of the vaccine.” Vaccine Act 

§ 11(c)(1)(D)(i). The burden of establishing, by a preponderance of the evidence, the 

persistence of a vaccine-caused injury for longer than six months is borne by Petitioner. 

Vaccine Act § 13(a)(1)(A); Song v. Sec'y of Health & Human Servs., 31 Fed. Cl. 61, 65–

66 (1994), aff'd, 41 F.3d 1520 (Fed. Cir. 1994). A Petitioner cannot establish the length 

or ongoing nature of an injury merely through self-assertion unsubstantiated by medical 

records or medical opinion. Vaccine Act § 13(a)(1)(A). 

A special master must consider, but is not bound by, any diagnosis, conclusion, 

judgment, test result, report, or summary concerning the nature, causation, and 

aggravation of Petitioner’s injury or illness that is contained in a medical record. Vaccine 

Act § 13(b)(1). “Medical records, in general, warrant consideration as trustworthy 

evidence. The records contain information supplied to or by health professionals to 

facilitate diagnosis and treatment of medical conditions. With proper treatment hanging 

in the balance, accuracy has an extra premium. These records are also generally 

contemporaneous to the medical events.” Curcuras v. Sec’y of Health & Human Servs., 

993 F.2d 1525, 1528 (Fed. Cir. 1993). 

IV. Analysis

The purpose of the Vaccine Act is to award “vaccine-injured persons quickly, 

easily, and with certainty and generosity.” Weddel v. Sec’y of Health & Human Servs., 

100 F. 3d 929, 932 (Fed. Cir. 1996) (quoting H.R. Rep. No. 99-908, at 3 (1986)). The Act 

was meant to remedy the problem that “for the relatively few who are injured by vaccines 

– through no fault of their own – the opportunities for redress and restitution [were] limited, 
7

time consuming, expensive, and often unanswered.” Cloer v. Sec’y of Health & Human 

Servs., 654 F.3d 1322, 1325 (Fed. Cir. 2011) (en banc) (quoting H.R. Rep. No. 99-908, 

at 6 (1986)). As a result, the program places some emphasis on speed and efficiency, 

especially in close cases. 

The Vaccine Act requires that a Petitioner demonstrate that “residual effects or 

complications” of a vaccine related injury continued for more than six months. Vaccine 

Act § 11(c)(1)(D)(i). “[T]he fact that a Petitioner has been discharged from medical care 

does not necessarily indicate that there are no remaining or residual effects from her 

alleged injury.” Morine v. Sec’y of Health & Human Servs., No. 17-1013, 2019 WL 

978825, at *4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019); see also Herren v. Sec’y of Health & 

Human Servs., No. 13-1000V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 

2014) (“a discharge from medical care does not necessarily indicate there are no residual 

effects”). In another SPU case, where a Petitioner’s last treatment was at five months 

and nine days, the Petitioner was found to meet the six month requirement. Schafer v. 

Sec’y of Health & Human Servs., No. 16-0593V, 2019 WL 5849524 (Fed. Cl. Spec. Mstr. 

Aug. 28, 2019). In that case, the special master noted that it was unlikely “that petitioner’s 

shoulder symptoms would have resolved within 22 days.” Id. at *7.

In this case, it is undisputed that Petitioner received a flu vaccination on September 

30, 2015 in her left deltoid. The parties have not raised any dispute concerning the onset 

of Petitioner’s left shoulder pain and there is preponderant evidence that the onset of her 

pain was immediate. The parties have not disputed that Petitioner was seen by Dr. 

Raymond on March 23, 2016, seven days short of the six-month period. In order for 

Petitioner to establish more than six months of residual effects, she must demonstrate 

that her residual symptoms continued until at least one week after her March 23, 2016 

appointment with Dr. Raymond. 

Respondent emphasizes that at the March 23, 2016 appointment Petitioner’s 

condition was greatly improved and that medication was no longer needed. Rule 4(c) 

report at 5. Petitioner, however, focuses on Dr. Raymond’s note indicating that most, and 

thus by implication, not all, of Petitioner’s pain was erased by the steroid taper. 

The most persuasive evidence concerning Petitioner’s condition on March 23, 

2016 is Dr. Raymond’s note that Petitioner’s “pain [was] gone except occ. 2 of 10 . . . 

donning shirt.” Pet. Ex. 3 at 9 (emphasis added). This implication of this is that 

Petitioner’s pain was not completely gone, since she was still experiencing occasional 

pain getting dressed as of March 23, 2016. This is supported by the note cited by 

Petitioner indicating that most of her pain was erased by the steroid taper. Pet. Ex. 3 at 

9. This is further supported by Petitioner’s statement in her supplemental affidavit that 

she reported on March 23, 2016, that her left shoulder pain had mostly resolved and that

she experienced increased pain with the use of her arm. Pet. Ex. 7 at ¶ 7. 

Moreover, eight months later, on November 29, 2016, she was seen by her primary 

care physician for bilateral scapular pain. Pet. Ex. 4 at 80. Petitioner’s November 29, 
8

2016 appointment for shoulder pain further suggests that she continued to suffer lingering 

effects of her injury in the interim period. 

Petitioner has further explained why she did not return to Dr. Raymond after the 

March 23, 2016 visit – her pain had leveled off (even if some remained) and she did not 

think any further treatment was available. Id. at ¶ 9. This is consistent with Dr. Raymond’s 

reluctance to prescribe further treatment on March 23, 2016, when he indicated he did 

not want to prescribe more prednisone, did not think an orthopedic referral would help, 

and suggested that she continue home exercises. Pet. Ex. 3 at 9. 

Taken as a whole, this evidence supports a finding that as of March 23, 2016, 

Petitioner was still experiencing occasional and minimal residual symptoms, including left 

shoulder pain while getting dressed. Her treating physician considered further treatment 

options but determined that further treatment was not warranted at that time. 

Thus, I find it more likely than not that a shoulder injury that was still causing 

occasional pain after five months and twenty-three days (which is 175 days) would not 

fully resolve within the following week. Therefore, I find it more likely than not that 

Petitioner suffered the residual effects of her left shoulder injury for more than six months

(if barely). I do not make this finding based solely on Petitioner’s assertions, but also on 

corroborating medical records, specifically the record of her March 23, 2016 visit with Dr. 

Raymond, Pet. Ex. 3 at 9, and the record of her November 29, 2016 appointment, Pet. 

Ex. 4 at 80. Taken as a whole, the record establishes that she suffered the residual 

effects of her injury for more than six months. 

This is a close case. The evidence supporting residual effects for more than six 

months barely tips in Petitioner’s favor. However, “[i]n the Vaccine Program, petitioners 

are accorded the benefit of close calls.” Roberts v. Sec’y of Health & Human Servs., No. 

09-427V, 2013 WL 5314698, at *10 (Fed. Cl. Spec. Mstr. Aug. 29, 2013). 

V. Conclusion

For the reasons stated above, I DENY respondent’s motion. I find, based on 

the record as a whole, that Petitioner has established that she suffered the residual 

effects of her vaccine-related injury for at least six months. 

Respondent shall file, by no later than Thursday, December 12, 2019, a status 

report indicating how he intends to proceed in this case in light of this decision.

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran

Chief Special Master