In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 18-544V

UNPUBLISHED

LORI CELUCH,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Chief Special Master Corcoran 

Filed: January 27, 2020

Special Processing Unit (SPU);

Findings of Fact; Onset; Influenza 

(Flu) Vaccine; Shoulder Injury 

Related to Vaccine Administration 

(SIRVA)

Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.

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

FINDINGS OF FACT1

On April 16, 2018, Lori Celuch filed a petition for compensation under the National 

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

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(the “Vaccine 

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

administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on 

October 17, 2016. Petition at 1. The case was assigned to the Special Processing Unit 

of the Office of Special Masters.

For the reasons discussed below, I find that the onset of Petitioner’s left shoulder 

pain occurred within 48 hours of vaccination. 

 

1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am 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).
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I. Relevant Procedural History

Following the initial status conference held on June 7, 2018, Respondent was 

ordered to file a status report indicating how he intended to proceed in this case. ECF 

No. 8. On March 4, 2019, Respondent filed a status report stating that he would be willing 

to engage in discussions regarding a potential settlement of this case. ECF No. 19. The 

parties were thereafter ordered to file recurring status reports regarding the progress of 

their settlement discussions. ECF Nos. 20, 22, 24, 26, 29. 

On August 22, 2019, Petitioner filed a status report indicating that “[t]he parties 

have explored informal resolution and have reached an impasse.” ECF No. 30. At a 

subsequent status conference held on September 26, 2019, the parties agreed that the 

appropriate next step would be for Respondent to file his report pursuant to Vaccine Rule 

4(c) setting forth his position in this case. ECF No. 31. 

Respondent filed his Rule 4(c) Report on November 12, 2019. ECF No. 32. 

Respondent asserted that Petitioner had not established all of the elements necessary 

for a SIRVA Table Injury, including onset of the shoulder pain within 48 hours of the 

vaccination. Res. Report at 3-4. Respondent noted that Petitioner “did not complain of 

left shoulder pain to a medical professional until approximately two months after 

vaccination.” Id. at 4. 

On November 13, 2019, a Scheduling Order was issued, noting that I had reviewed 

Respondent’s Rule 4(c) Report and the evidence filed to date in this case. ECF No. 33. 

I stated that briefing and a hearing were not necessary to make a finding of fact regarding 

the onset of Petitioner’s alleged injury. Id. A deadline was set for the parties to file any 

additional relevant evidence they wished to have considered regarding this issue. Id.

On January 6, 2020, Petitioner filed a supplemental affidavit. ECF No. 35. No 

further evidence was filed. Accordingly, this matter is now ripe for adjudication. 

 

II. Issue

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

vaccine administration (specifically pain) occurred within 48 hours, as required by the 

Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table 

SIRVA. 42 C.F.R. § 100.3(a) XIV.B. (2017) (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 § 13(a)(1)(A), a petitioner must prove, by a 

preponderance of the evidence, the matters required in the petition by Vaccine Act 

§ 11(c)(1). A special master must consider, but is not bound by, any diagnosis, 
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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. 

§ 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). 

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, at *19.

The United States Court of Federal Claims has recognized, however, 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).

Medical records may also 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 F.3d 1367, 

1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d 1570, 1575 

(Fed. Cir. 1993).

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 occurred outside such period.” § 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. 
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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 § 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

For the reasons discussed below, I find that the onset of Petitioner’s left shoulder 

pain occurred within 48 hours of vaccination. I make this finding after a complete review 

of the record to include all medical records, affidavits, Respondent’s Rule 4(c) Report, 

and additional evidence filed. Specifically, I base this finding on the following evidence:

• On October 17, 2016, Petitioner was administered a flu vaccine 

intramuscularly in her left deltoid at a Walgreens Pharmacy in Kingston, NY. 

Petitioner’s Exhibit (“Pet. Ex.”) 1 at 1-2. 

• On December 19, 2016 (two months post-vaccination), Petitioner presented 

to Orthopedic Associates with a chief complaint of left shoulder pain. Pet. 

Ex. 2 at 6. Petitioner reported at that time that her “problems began on 

October 17 when she received a flu shot in the left arm.” Id. Petitioner 

stated that she experienced no immediate pain; however, she began to 

develop pain the day following her vaccination with stiffness, achiness to 

the lateral elbow, and loss of motion. Id. Petitioner indicated that her 

symptoms had worsened despite limited use of the arm. Id. On 

examination, Petitioner presented with a large area of induration in the 

medial head of the deltoid with tenderness. Id. at 7. Petitioner was further 

observed to have reduced left shoulder range of motion with positive 

impingement signs. Id. Petitioner was referred to physical therapy3 and 

ordered to obtain an MRI of the shoulder.4 Id. at 7-8.

• On June 16, 2017, Petitioner returned to Orthopedic Associates with 

complaints of left shoulder pain. Id. at 4. Petitioner again reported that her 

symptoms had “never entirely diminished following the onset of symptoms 

after a flu injection.” Id. 

• On April 16, 2018, Petitioner filed an affidavit in support of this Petition 

noting that, “[w]ithin 24 hours after vaccination, [she] began to feel stiffness 

and pain in [her] left shoulder.” Pet. Ex. 5 at ¶ 3. Petitioner filed a 

 

3 Petitioner attended 24 physical therapy sessions from January 10, 2017 through May 4, 2017. Pet. Ex. 

4 at 1-47. On January 10, 2017, Petitioner completed a physical therapy medical questionnaire noting 

that she had experienced left shoulder pain since October 2016. Id. at 53.

4 A December 30, 2016 MRI of Petitioner’s left shoulder revealed, in pertinent part, mild tendinopathy of 

the supraspinatus and infraspinatus tendons. Pet. Ex. 3 at 21. The MRI did not reveal abnormal mass 

lesion or fluid collection. Id. 
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supplemental affidavit on January 6, 2020. Pet. Ex. 7. She averred that 

she had “developed pain in [her] left shoulder on the day after [the]

vaccination.” Id. at ¶ 2. 

I find Petitioner’s affidavits to be credible and in agreement with the 

contemporaneously created treatment records. Indeed, at her first post-vaccination 

medical appointment, Petitioner specifically tied her left shoulder symptoms to the 

vaccination and specified that her pain had begun the day following the vaccination. Pet. 

Ex. 2 at 6. Moreover, at subsequent medical encounters, Petitioner consistently tied her 

symptoms to the flu vaccination. Id. at 2, 4. 

Although Petitioner did not seek treatment for her left shoulder injury until two 

months following the October 17, 2016 vaccination, I do not find this delay to be 

dispositive regarding the issue of onset. Indeed, Petitioner’s medical records reflect a 

pattern of treatment similar to other SIRVA claims, in which injured parties reasonably 

delay treatment, often based on the assumption that their pain is transitory. See, e.g.,

Larish v. Sec’y of Health & Human Servs, 18-20V, 2019 WL 5266886, at *6-10 (Fed. Cl. 

Spec. Mstr. Jul. 2, 2019) (finding onset of shoulder pain within 48 hours of vaccination 

despite a nine-week delay in treatment because petitioner’s medical records recorded 

immediate post-vaccination pain); Williams v. Sec’y of Health & Human Servs, 17-830V, 

2019 WL 1040410, at *9 (Fed. Cl. Spec. Mstr. Jan. 31, 2019) (noting a delay in seeking 

treatment because petitioner underestimated the severity of her shoulder injury); Knauss 

v. Sec’y of Health & Human Servs, 16-1372V, 2018 WL 3432906 (Fed. Cl. Spec. Mstr. 

May 23, 2018) (noting a three-month delay in seeking treatment without a specified 

reason).

Accordingly, I find there is preponderant evidence to establish that the onset of 

Petitioner’s left shoulder pain occurred within 48 hours of her October 17, 2016 flu 

vaccination. 

V. Scheduling Order

Respondent shall file a status report, by no later than Wednesday, February 26, 

2020, indicating whether he is interested in exploring an informal resolution of Petitioner’s 

claim.

IT IS SO ORDERED.

s/Brian H. Corcoran

Brian H. Corcoran

Chief Special Master