In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 20-1882V

UNPUBLISHED

KELLY JOYCE,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Chief Special Master Corcoran 

Filed: December 14, 2021

Special Processing Unit (SPU);

Findings of Fact; Site of Vaccination

Influenza (Flu) Vaccine; Shoulder 

Injury Related to Vaccine 

Administration (SIRVA)

Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for Petitioner.

Nancy Tinch, U.S. Department of Justice, Washington, DC, for Respondent.

FINDINGS OF FACT1

On December 16, 2020, Kelly Joyce filed a petition for compensation under the 

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

2 (the 

“Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine 

administration (“SIRVA”), a defined Table injury, after receiving an influenza (“flu”)

vaccine on November 8, 2019. Petition at 1, ¶¶ 4, 38-39. Petitioner further alleges that 

her SIRVA was caused-in-fact by the flu vaccine she received. Id. at ¶¶ 38, 40. 

Acknowledging that the vaccine record does not indicate the site of administration, 

Petitioner nevertheless maintains there is preponderant evidence to establish the vaccine 

1 Because this unpublished Fact Ruling contains a reasoned explanation for the action in this case, I am 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 Fact Ruling will be available to anyone with access to the 

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

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

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

public access.

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

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

300aa (2012).
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was administered in her left shoulder as alleged. Id. at ¶ 4. The case was assigned to the 

Special Processing Unit of the Office of Special Masters.

For the reasons discussed below, I find the flu vaccine was most likely 

administered in Petitioner’s left shoulder, as alleged, and that onset of Petitioner’s pain 

occurred within 48 hours of vaccination. 

I. Relevant Procedural History

The day after she filed the Petition, Ms. Joyce filed an affidavit and most of the 

medical records required under the Vaccine Act. Exhibits 1-16, ECF No. 6; see Section 

11(c). Over the subsequent seven-month period, she filed additional prior and updated 

medical records. Exhibits 17-24, ECF Nos. 11-14, 16-17. Petitioner also filed a status

report citing entries in her medical records which, she argues, show she received the 

November 8, 2019 vaccine in her left shoulder as alleged. Status Report, filed July 19, 

2021, ECF No. 18. 

On September 21, 2021, Respondent filed a status report indicating that “[a]t this 

time, Respondent’s counsel does not wish to file briefing regarding the site of 

vaccination.” Status Report, ECF No. 21. In October and November 2021, Petitioner filed 

additional medical records including a copy of her worker’s compensation settlement 

agreement. Exhibits 25-30, ECF Nos. 22, 24-25. Petitioner also filed a status report 

reiterating her request for a fact ruling regarding the site of vaccination and disagreeing 

with Respondent’s assertion that I should delay this factual determination until the HHS 

review is completed. ECF No. 23. 

Given the current backlog of vaccine cases awaiting the HHS review which has 

existed for several years, I have consistently encouraged the parties to vaccine injury 

cases to identify and address factual issues which do not require medical expertise, and 

thus can be decided prior to the HHS review. The factual issue regarding vaccine 

administration situs in this case fits squarely in that category. For the sake of judicial 

efficiency, I will simultaneously address the issue of the onset of Petitioner’s pain. These

issues are now ripe for adjudication. 

II. Issue

At issue is whether (a) Petitioner received the vaccination alleged as causal in his 

injured left arm, and (b) Petitioner’s first symptom or manifestation of onset after vaccine 

administration (specifically pain) occurred within 48 hours as required in the Vaccine 

Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA. 42 
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C.F.R. § 100.3(a) XIV.B. (2017) (Table entry for SIRVA following the influenza 

vaccination); 42 C.F.R. § 100.3(c)(10)(ii) (required onset for pain listed in the QAI). 

III. Authority

Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a 

preponderance of the evidence, the matters required in the petition by Section 11(c)(1). 

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. Section 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.” Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 

1993). 

Accordingly, where medical records are clear, consistent, and complete, they 

should be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-

1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule 

does not always apply. In Lowrie, the special master wrote that “written records which 

are, themselves, inconsistent, should be accorded less deference than those which are 

internally consistent.” Lowrie, 2005 WL 6117475, at *19.

The United States Court of Federal Claims has recognized that “medical records 

may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed. 

Cl. 381, 391 (1998). The Court later outlined 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 1335 (Fed. Cir. 2014).

The Court has also said that medical records may be outweighed by testimony that 

is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed. 

Cl. at 391 (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL 

408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering 

such testimony must also be determined. Andreu v. Sec’y of Health & Human Servs., 569 
4

F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 

1570, 1575 (Fed. Cir. 1993).

The special master is obligated to fully consider and compare the medical records, 

testimony, and all other “relevant and reliable evidence contained in the record.” La 

Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v. 

Sec’y of Health & Human 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).

IV. Finding of Fact

I make the following findings regarding site of vaccination and onset after a 

complete review of the record, including medical records, affidavits, and other additional 

evidence filed showing:

• The vaccine record indicates Petitioner received a flu vaccine on November 

8, 2019, at her placement of employment - Tufts Medical Center. Exhibit 2 

at 4. The method and site of vaccination are not indicated. Id. Email 

exchanges between Petitioner’s counsel and personnel at Tufts Medical 

Center indicate the site of vaccination is not recorded in the electronic 

database. Id. at 1-3. 

• In her affidavit, Petitioner alleged that she received the flu vaccine in her 

left, non-dominant shoulder. Exhibit 3 at ¶ 3. She added that she “always 

received [her] annual flu shot in [her] non-dominant left arm, and . . . 

specifically recall[ed] that [she] received the November 8, 2019 flu shot in 

[her] left shoulder.” Id. Petitioner described pain which began a few hours 

after vaccination and increased to a severe level which prevented her from 

performing her duties as a nurse. Id. at ¶ 5. 

• Six days post-vaccination, on the morning of November 14, 2019, Petitioner 

sought medical care from a provider at Tufts Medical Center, Dr. John 

Doyle. Exhibit 4 at 12. The description she provided at this visit – of left 

shoulder pain which began several hours after vaccination and which 

gradually increased until severe – matches the assertions in Petitioner’s 

affidavit. Petitioner was referred to the orthopedic clinic and excused from 

work until re-evaluated. Id.
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• At her orthopedic appointment that same day, Petitioner complained of “left 

shoulder pain after receiving a flu shot on 11/8/19.” Exhibit 4 at 38 

(November 14, 2019 orthopedic visit). She indicated that she returned to 

work post-vaccination and did not recall any complications until the next 

day. Id. Upon examination, the orthopedist, Dr. Charles Cassidy observed 

no swelling, warmth, or tenderness upon palpitation. He diagnosed 

Petitioner with biceps tendonitis, “likely due to inflammation around her 

biceps tendon.” Id. at 40. 

• The next day on November 15, 2019, Petitioner completed an Employee 

Incident Report regarding a flu shot injury to her left arm. Exhibit 4 at 117. 

• On November 18, 2019, Petitioner returned for a follow-up appointment with 

Dr. Doyle. Exhibit 4 at 13. Relaying Dr. Cassidy’s opinion – that there was 

not an infectious process occurring and that the pain was due to biceps 

tendonitis, Petitioner described sharp pain with certain movements. Dr. 

Doyle excused Petitioner from work for the rest of the week. Id.

• When seen again at the orthopedic clinic on November 25, 2019, Petitioner 

again reported severe pain which began the day after her November 8, 

2019 vaccination. Exhibit 5 at 14. Dr. Cassidy diagnosed Petitioner with 

adhesive capsulitis and discussed treatment options. Petitioner opted for 

physical therapy (“PT”). Id. at 16. 

• Following this November 25, 2019 orthopedic visit, Petitioner provided a 

telephone update to Dr. Doyle. Exhibit 4 at 13. She indicated she would 

contact the local PT office and would provide another update on December 

2, 2018. In this record, it was noted that Petitioner had declined a steroid 

injection. Id.

• When seen again by Dr. Doyle at 8:10AM on December 2, 2019, Petitioner 

expressed an interest in receiving a steroid injection from Dr. Cassidy, who 

she believed was seeing patients that day. Exhibit 4 at 14.

• Later that day, Dr. Cassidy provided the requested steroid injection. Exhibit 

4 at 32. He noted that Petitioner “continues to have vague shoulder 

symptoms following a flu vaccination . . . [but] symptoms [which were] not 

consistent with any one diagnosis.” Id. He assessed Petitioner as having 

“[s]ubacromial impingement of [the] left shoulder.” Id.
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• During her first PT session from 1:00PM until 2:00PM on December 2, 2019, 

Petitioner again reported left shoulder pain and frozen shoulder due to the 

administration of the flu vaccine on November 8, 2019. Exhibit 6 at 8. 

Attending a total of four PT sessions in December 2019 and failing to return 

thereafter, Petitioner was discharged on April 6, 2020. Exhibit 6 at 12-19. 

• When treated by Dr. Doyle on December 9, 2019, Petitioner reported slight 

improvement following the cortisone injection and PT. Exhibit 4 at 14. She 

was excused from work for the remainder of the week. Id.

• Seen again by Dr. Cassidy on January 6, 2020, it was noted that Petitioner’s 

injury was most consistent with adhesive capsulitis, but that she was 

recovering faster than expected given the nature of her disease. Exhibit 4 

at 28. 

• Petitioner provided another telephone update to Dr. Doyle on January 14, 

2020, indicating she continued to have left shoulder pain and difficulties with 

certain movements. Exhibit 4 at 16. She was instructed to continue PT and 

remain at home. Id.

• At her next appointment with Dr. Doyle on January 28, 2020, Petitioner 

continued to report left shoulder pain and difficulties performing certain 

tasks. Exhibit 4 at 17. 

• On February 7, 2020, Petitioner underwent an MRI. Exhibit 4 at 23. She 

again reported “left shoulder pain post-vaccination.” Id. The MRI revealed 

“[f]ull-thickness tear of the anterior supraspinatus . . . with moderate 

underlying tendinosis, . . . [p]robable focal tear of the anterior labrum, . . . 

[m]arked fluid within the subacromial subdeltoid bursa.” Id.

• Petitioner has provided the documentation connected to her worker’s 

compensation claim which includes an April 13, 2020 email from Dr. Todd 

M. O’Brien and an August 6, 2020 letter from Dr. David C. Morley, Jr., 

communicating both physician’s opinions that Petitioner’s left shoulder 

injury was due to the flu vaccine she received on November 8, 2019. Exhibit 

15 at 1-2 (Dr. O’Brien’s email); Exhibit 11 at 4-6 (Dr. O’Brien’s letter).

In every post-vaccination record containing a medical history, from the time she 

first sought treatment on November 14, 2019 (only six days post-vaccination), Petitioner 

consistently described left shoulder pain as beginning a few hours post-vaccination,
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increasing thereafter to a severe level which interfered with her ability to work by the next 

day. Without fail, she attributed her injury to the flu vaccine she received on November 8, 

2019. Petitioner provided extremely consistent accounts of her injury and the onset of her 

pain. While these entries were based upon information provided by Petitioner, they still 

should be afforded greater weight than more current representations, as they were 

uttered contemporaneously with Petitioner’s injury for the purposes of obtaining medical 

care. 

The Federal Circuit has stated that “[m]edical records, in general, warrant 

consideration as trustworthy evidence . . . [as they] contain information supplied to or by 

health professionals to facilitate diagnosis and treatment of medical conditions.” Cucuras, 

993 F.2d at 1528 (emphasis added). Thus, the Circuit has instructed that greater weight 

should be accorded to this information even when the information is provided by 

Petitioner.3

The vaccine record clearly supports Petitioner’s claims of receiving the flu vaccine 

in her left arm on November 8, 2019, and experiencing left shoulder pain within 48 hours 

thereafter. There is nothing in the vaccine record or medical records in this case to 

indicate administration was in Petitioner’s other arm (right) or that the onset of Petitioner’s 

pain was not within 48 hours as Petitioner consistently reported. And the fact that situs is 

not itself corroborated by a medical record does not rebut the combination of Petitioner’s 

contemporaneous reports to treaters of a left-shoulder vaccination and her own witness 

statements. Thus, I find there is preponderant evidence to establish the vaccination 

alleged as causal in this case was administered to Petitioner in the left deltoid, and that

onset of Petitioner’s pain occurred within 48 hours of vaccination.

V. Scheduling Order

Based on recent data, I expect the HHS review to be completed in this case in 

February 2022. In the meantime, it is appropriate for Petitioner to forward a demand and 

supporting documentation to Respondent prior to the HHS review.Thus, Petitioner should 

finalize her demand which she may forward to Respondent, along with her supporting 

documentation, at any time. 

3 Additionally, Petitioner has provided evidence, related to Petitioner’s worker’s compensation claim, that 

two different physicians concluded her injury was due to the flu vaccine she received on November 8, 2019. 

It would be illogical for these physicians to have reached this conclusion absent a belief that Petitioner 

received the vaccine in question in her left, injured arm (although that belief does not independently 

establish situs).
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Petitioner shall file a status report indicating the date by which she conveyed 

or expects to convey her demand and supporting documentation to Respondent 

by no later than Friday, January 14, 2022.

Respondent shall file a status report indicating how he intends to proceed 

by no later than Tuesday, February 15, 2022.

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master