# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 17

- 1961 V
UNPUBLISHED

MARA CORTER

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Chief Special Master Corcoran
Filed : October 18, 2019

Special Processing Unit (SPU) ; Findings of Fact ; Onset; Influenza (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration (SIRVA)

**Summer Pope Abel**  , Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner.
**Sarah Christina Duncan** , U.S. Department of Justice, Washington, DC, for respondent.

F INDINGS OF F ACT 1

On December 15, 2017

, Mara Corter 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) as a result of a flu vaccine administered on September 26, 2016

. Petit ion at 1 . The case was assigned to the Special Processing Unit of the Office of Special Masters.

For the reasons discussed below, I find the onset of P etitioner’s shoulder injury related to vaccine administration (“ SIRVA ”) occurred within 48 hours of vaccination.

1 This ruling will be posted on the United States Court of Federal Claims' website. This means the 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 invasio n of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States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 E

- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services).

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 Specifically, P etitioner suffered symptoms manifested by pain immediately upon vaccination.

I. Relevant Procedural History

Petitioner filed most of her medical records on December 28, 2017

. See Exhibits

1

- 5. During the January 25, 2018 initial status conference, R espondent’s counsel identified potential missing records that could relate to the onset of P etitioner’s alleged SIRVA. On March 12, 2018, P etitioner submitted additional medical records and an amended statement of completion

. ECF Nos. 13 and 14. On September 7, 2018,

R espondent reported that he had reviewed the records filed by P etitioner and determined that he had sufficient information to provide a recommendation

. ECF No. 23. Respondent also noted that he was interested in pursuing settlement negotiations. Id

.

However, after several months of negotiation , on May 14, 2019, P etit ioner filed a status report stating that “after good

- faith negotiations, the parties now agree that the Chief Special Master will need to rule on P etitioner’s entitlement to vaccine compensation, particularly as to onset of P etitioner’s injury

. ” ECF No. 35

. Respondent subsequently filed a Rule 4(c) Report on June 27, 2019

. ECF No. 37 . On that same date, P etitioner filed

additional medical records. ECF No. 38.

In a Scheduling Order filed July 17, 2019, former Chief Special Master Nora Beth Dorsey (who was presiding over the case at the time) reported that she had reviewed the record and determined that an onset hearing was not necessary. ECF No. 41. She also noted that because this ruling relates to a discrete factual issue, party briefs were not

necessary. Id . The parties were allowed the opportunity to submit additional evidence

relevant to onset

, and P etitioner was instructed to file a supplemental affidavit

. Id

. Pursuant to the scheduling order, P etitioner subsequently submitted additional records and a supplemental affidavit on September 26 and September 27, 2019. ECF Nos. 43

- 44.

II. Issue

At issue is whether P etitioner’s first symptom or manifestation of onset after

vaccine administration was wit hin 48 hours as set forth in the Vaccine Injury Table. 42 C.F.R. § 100.3(a) XIV.B. (2017) (influenza vaccination)

. Additionally, the Qualifications

and A ids to I nterpretation (“QAI”) for a Table SIRVA requires that a petitioner’s pain occur

within this same time frame, 48 hours. 42 C.F.R. § 100.3( c )( 10).

III. Authority

Pursuant to Vaccine Act § 13(a)(1)(A), a petitioner must prove, by a preponderance of the evidence, the matters required in the petition by Vaccine Act3 § 11(c)(1). A special master may find that the first symptom or manifestation of onset of an injury occurred “within the time period described in the Vaccine Injury Table even though the occurrence of such symptom or manifestation was not recorded or was incorrectly recorded as having occ urred outside such period.” Vaccine Act § 13(b)(2). “Such a finding may be made only upon demonstration by a preponderance of the evidence that the onset [of the injury] . . . did in fact occur within the time period described in the Vaccine Injury Table.” Id

. 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. Va ccine

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 han ging 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. Finding of Fact

I make the finding s in this ruling after a complete review of the record , including all medical records , affidavits, R espondent’s Rule 4 R eport, and additional evidence filed. Specifically, I base the finding on the following evidence:

• Ms. Corter received an influenza vaccine in her left deltoid on September 26, 2016. Ex. 1; Ex

. 2 at 2, 28.

• Petitioner did not have a history of left shoulder pain or injury. ECF No. 37.

• Petitioner reports that following the vaccination, her arm “became sore right away.” Ex . 6. In her supplemental affidavit, P etitioner noted that her shoulder “started to ache immediately with the injection itself .” Ex

. 43.

• At a visit with her primary care physician (PCP) on November 8, 2016,
P etitioner complained of left shoulder pain “due to recent immunization injection.” Ex

. 2 at 64.

• On January 6, 2017, P etitioner reported to her PCP she had been having
local tenderness and persistent discomfort over the lateral left arm area “after having had flu vaccination.” Ex

. 2 at 109, 113. Physical examination revealed tenderness over the lateral aspect of the left shoulder and the PCP referred P etitioner to physical therapy. Id

.

• Petitioner attended a physical therapy session on January 16, 2017, at which time she reported that her arm had been sore “ever since” receiving the flu vaccination on September 26, 2016. Ex

. 3 at 3.4 • On July 3, 2017, P etitioner presented to Dr. Michael Comstock, an orthopedic surgeon, at which time she reported acute discomfort in the “left shoulder upper arm region” after her September 26, 2016 flu vaccination.
Ex

. 5 at 4. Dr. Comstock noted that “given the time cour se of her pain post

injection , it is certainly possible that some of the injection reached the subacromial/subdeltoid bursa.” Id . at 8.

• At a physical therapy visit on October 9, 2018, P etitioner reported left shoulder pain “due to a flu shot 2 years ago.” Ex

. 13 at 7.

• In an affidav it dated November 9, 2017, P etitioner reported that after her flu shot on September 26, 2016, “[her] arm became very sore almost right away.” Ex

. 6 at 1.

• In a supplemental affidavit dated September 26, 2019, P etitioner reported that after her flu vaccina tion on September 26, 2016, her left arm and shoulder started to ache “immediately” and “within an hour, [it] was so sore that it hurt to move [her] arm.” Ex

. 17 at 1. She also reported that “over the next couple days, the pain continued to get worse, not better.” Id

.

• Maxwell Wlodarczak, P etitioner’s son, submitted a declaration dated September 26, 2019, in which he reported a telephone conversation with his mother where she complained pain and stiffness in her shoulder days after receiving a flu shot. Ex

. 18 at 1.

The affidavits of P etitioner and the declaration of her witness are consistent with the medical evidence; therefore, I find the information contained therein credible. As such,
I find preponderant evidence that petitioner’s manifestation of onset after influenza
vaccine admi nistration occurred within 48 hours of September 26, 2016

.

V. Scheduling Order

Given my findings of fact regarding the onset of P etitioner’s pain, R espondent should evaluate and provide his current position regarding the merits of petitioner’s case.

Accordingly, R espondent shall file, by no later than Monday, December 2

, 2019 , an amended Rule 4 Report reflecting R espondent’s position in light of the above fact finding

.

IT IS SO ORDERED.

s/ Brian H. Corcoran

Brian H. Corcoran Chief Special Master