# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18

- 129 V

Filed: April 26, 2019
UNPUBLISHED

KENNETH CAPRA

,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Special Processing Unit (SPU);
F indings of Fact Regarding Site of
Vaccination ; In fluenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration (SIRVA)

Shealene Priscilla Mancuso , Muller Brazil, LLP, Dresher, PA , for petitioner. Ashley Monique Simpson , U.S. Department of Justice, Washington, DC, for respondent.

ORDER AND FACT RULING 1

Dorsey , Chief Special Master:

On January 26, 2018 , 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”). Petitioner alleges that he suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of receiving an influenza ( “ flu ” ) vaccination on October 29, 2016

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

1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.

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, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this unpublished decision contains a reasoned explanation for the action in this case, und ersigned is required to post it on the United States Court of Federal Claims'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 E lectronic 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

On November 19, 2018 , respondent filed a status report stating that proof of petitioner ’ s flu vaccination administration in his right arm remains outstanding. ECF No.
20. Further, r espondent no ted that the vaccination record filed indicates that petitioner
received a flu vaccine i n his left arm. Id. at n.1

. For the reasons described below, the undersigned finds there is preponderant evidence sufficient to establish petitioner
received the October 29, 2016 flu vaccination in his right injured arm

.

I. Procedural History

On January 26, 2018, petitioner filed a petitioner for compensation and medical
records

. See Exhibits 1

- 7, ECF No. 1. Petitioner later filed an affidavit on March 28,
2018 ( ECF No. 8 ), updated medical records on May 8, 2018 (ECF No. 10 ) , and a Witness Affidavit on May 29, 2018

. ECF No. 11.

On November 19, 2018 , respondent filed a status report stating that the
vaccination record indicates that petitioner’s flu vaccination was administered in his left

arm , however the petitioner alleges a right

- shoulder SIRVA. E CF No. 20. A status conference was held on February 15, 2019 to discuss the parties ’ respective positions.
E CF No. 21. Respondent indicated that t he location of petitioner ’ s flu vaccination may be an issue the Court needs to weigh in on, and pe titioner agreed to file a Motion for a Ruling on the Record. Id.

Petitioner filed a M o tion for F a ct Ruling on the Record on March 25, 2019 ( “ Pet.
Br

. ” ), and respondent filed a response on April 8, 2019 ( “ Res. Br

. ” ) . ECF Nos. 23, 24.

Petitioner ’ s motion is now ripe for adjudication

.

II. Factual History

A. Medical Records

On Saturday, October 29, 2016, petitioner r eceived a flu vaccination at Rite Aid pharmacy. Ex. 1. The vaccination record states that the immunization was administered in petitioner ’ s left upper arm. Ex. 1 at 2.

On November 1, 2016, petitioner presented to Easter Seals Colorado. Ex. 2 at 7.

Petitioner ’ s medical provider stated “ [petitioner] received his flu shot Saturday, c/o pain at site of R bicep

– feels slightly more swollen and hard than L bicep

... . Advised heat to

site and arm exercises. ” Id.

On November 14, 2016, petitioner presented to Dr. Sara Volkmar with complaints

of right arm pain. Ex. 3 at 11 , 13

. Dr. Volkmar noted that petitioner received a flu

vaccination two weeks earlier, and “ ever since he got his flu shot he has had R[ight] shoulder pain ”

. Ex. 3 at 13

- 14. Dr. Volkmar also noted that “ [petitioner] has rotator cuff3

pathology

, bursitis, tendinitis, or similar ” and that petitioner “ feels that the flu shot was the inciting incident. ” Id. at 14.

Petitioner again presented to Easter Seals Colorado on November 29, 2016. Ex.

7 at 2. Petitioner ’ s medical provider noted “ [ petitioner ] remains unable to fully raise R

arm after flu shot

... . ”

Petitioner again complained of ongoing right shoulder pain on December 5, 2016 to Anthony E user, D

. O. 3 Ex. 3 at 8

- 9. At that time, petitioner reported pain in his

“ R[ight] shoulder post flu in[j]ection into deltoid. ” Id. at 8. 4

From December 19, 2016 through October 20, 2017, petitioner attended physical therapy and occupational therapy sessions for pain in his right upper arm at Easter
Seals Colorado

. Id. at 9

- 10, 17

- 18, 25

- 2 6.

Petitioner underwent a right arm NCS/EMG on January 26, 2017. Ex. 3 at 57

- 60.

A t that time, petitioner c omplained of “ weakness and pain in his right [shoulder]. He says it started in 10/2016 after getting a flu shot. ” Ex. 3 at 57. The NCS/EMG was

normal. Id.

On March 9, 2017, petitioner presented to Dr. Lyndsey Hale of Blue Sky Neurology with complaints of right arm pain. Dr. Hale noted that petitioner “ reports

g etting a flu shot in his right arm in October 2016. Since then, he has continued to have right arm pain. ” Ex. 5 at 4. Dr. Hale assessed petitioner with right shoulder pain, and

stated his “ symptoms may be musculoskeletal or joint related. Localized t rauma from

his flu shot could also be possible. ” Id. at 5. Petitioner later underwent an MRI of his right shoulder on June 1, 2017. Ex. 3 at 54.

On April 17, 2017, petitioner began physical therapy at Altitude Physical Therapy and Sports Medicine. Ex. 4 at 14. Petitioner reported “ pain in R[ight] shoulder beginning 10/2016 after a flu shot. He had intense pain immediately during the shot that has not improved. ” Id. Petitioner attended eight physical therapy sessions between April 27, 2017 and July 6, 2017. Id. at 4

- 23, 30

- 31.

Petitioner again complained of ongoing right shoulder pain on June 23, 2017 to Anthony E user, DO. Ex. 3 at 3

- 5

. At that time, petitioner reported pain in his right shoulder, and that he “ [h]a s noted since injection in 2016 ”

. Id. at 4.

3 D.O. stands for Doctorate of Osteopathic Medicine. Unless a particular degree is specified the first time
an individual is referenced , it is assumed any individual with the title of “Dr.” has earned a Doctor of Medicine (M.D.). Doctors who have earned a D.O. may have received different training but have similar privileges and responsibilities as doctors with a n M.D.

4 The record appears to have a typographical error in that it states petitioner has right shoulder pain “ post flu

in f ection into deltoid. ” Ex. 3 at 8 (emphasis added).4

On July 14, 2017, petitioner complained of right shoulder pain to Dr. William
Ciccone. Ex. 6 at 1. Petitioner stated that he “ had a flu shot back in October of 2016

where he felt they put the injection high on his shoulder

... . Since that time, he ha s had pain with reaching and lifting. ” Id. Petitioner also recorded “ Flu shot ” on the intake form

under the heading for “ What Happened ”

. Id. at 43. Petitioner saw Dr. Ciccone on two additional occasions, August 25

, 2017 and October 13, 2017. Id. at 9

- 12, Ex. 9 at 1

- 5. Both times he complained of right shoulder pain. Further, on August 25, 2017, petitioner was assessed with “ impingement following vaccination. ” Ex. 6 at 11.

B. Petitioner’s Affidavit s

In his affidavit, which was signed and notarized on January 12 , 2017

, petitioner stated that he received a flu vaccine in his right shoulder on October 29, 2016. Ex. 8 at

1.

Petitioner also filed an affid avit of Norma Kaholo, who has known petitioner for 3 years through the Easter Seals Foundatio n. Ex. 10 at 1. Ms. Kaholo stated that she picked up petitioner the first week in November of 2016, and recalled he “ had a hard time with movement in his right arm

... . ” Id. Ms. Kaholo also specified that petitioner

“ s tated he received a flu shot at Rite Aid over the weekend and think s something is

wrong. ” Id.

III. Party Contentions

In his motion, petitioner notes that his affidavit states he received a flu s hot in his right shoulder. Pet. Br. at 6. Petitioner also argues that the medical records consistently note he complained of right arm pain, that the records link the arm pain to his flu vaccination, and that certain records specifically state his arm pai n may be due to

his flu vaccine. Pe t. Br. at 6

- 7. Petitioner recognizes that the vaccination record

indicates the flu vaccine was administered in his left arm, but stresse s that record is an exception.

R espondent argues that the most contemporaneous medical record, petitioner ’ s actual vaccination record , states the flu s hot was administered in petitioner ’ s left arm

. Res. Br. at 3. Further, respondent notes that, despite petitioner ’ s statements and reports to his physicians , a factual finding may not be based on the claims of a petitioner alone, unsubstantiated by medical recor d or medical opinion. Res. Br. at 3.5

IV. Findings of Fact

A. Legal Standard

A petitioner must prove, by a preponderance of the evidence, the factual
circumstances surroundin g her claim. § 1 3(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).

To resolve factual issues, t he special master must weigh the evidence presented, which may include contemporaneous medical records and testimony. See Burns v. Sec'y of Health & Human Servs. , 3 F.3d 415, 417 (Fed.Cir.1993) (explaining that a special master must decide what weight to give evidence including oral testimony and contemporaneous medical records). As the Federal Circuit has noted, it is appropriate for a special master to give greater weight to evidence contained in medical records
created closer in time to the vaccination , even if the information is provided as part of a medical history. Cucuras v. Sec’y of Health & Human Servs. , 993 F.2d 1525, 1528 (Fed. Cir. 1993) (medical records are generally trustworthy evidence). The Circuit Court explained that

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 ex tra premium. These records are also generally contemporaneous to the medical events.

Id.

Additionally, when determining the impact of the evidence presented, the special master should consider factors such as the reliability and consistency of the evid ence. Burns, 3 F.3d at 416. “ W ritten records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent. If a record was prepared by a disinterested person who later acknowledged that the entry was incorrect in some respect, the later correction must be taken into account.” Murphy v. Sec’y of
Health & Human Servs.

, No. 90

- 882V, 1991 WL 74931, at *4 (Fed. C l. Spec. Mstr. Apr. 25, 1991), aff'd

, 23 Cl. Ct. 726 (1991), aff'd per curium

, 968 F.2d 1226 (Fed.Cir.1992).

B. Site of Vaccination

There is consistent evidence throughout the medical record s sufficient to establish petitioner received the flu vaccination in his right arm. Whe n seeking
treatment for his right arm/ shoulder pain, petitioner regularly attributed his condition to
the flu vaccination he received in his injured right a rm

. Not once does petitioner indicate
that he received the vaccination in his left arm or seek tre atment for any left arm injury

.6

On November 1, 2016, three days after petitioner ’ s vaccination, he reported that he received a flu shot and there was pain at the site of his right bicep . Ex. 2 at 7.
Petitioner saw Dr. Volkmar on November 14, 2016, when he again linked his right
shoulde r pain to his flu shot. Dr. Volkmar noted that “ ever since petitioner got his flu shot he has had R[ight] shoulder pain

... . ” E x. 3 at 13

- 14. At that time, Dr. Volkmar also noted that petitioner felt “ the flu s hot was the inciting incident ” to his shoulder pain.
Id. at 14.

Thereafter, between Decemb er 5, 2016 and August 25, 2017, petitioner repeatedly linked his right shoulder pain to a flu vaccination in multiple medical visits with at least six different medical professionals

. See, e.g.

, Ex . 3 at 8 (a December 5,
2016 medical record noting petitioner reported right shoulder pain “ p ost flu injection in
deltoid ” ); Ex. 3 at 57 (a January 26, 2017 record noting petitioner c omplained of pain in his right shoulder that “ it started in 1 0/2016 after getting a flu shot ” ) ; Ex. 5 at 4 (record from March 9, 2017 noting that petitioner “ reports g etting a flu shot in his right arm in
October 2016 ” and “ [s] ince then, he has c ontinued to have right arm pain ” ); Ex. 4 at 14 (physical therapy records stating that p etitioner reported “pain in R[ight] shoulder beginning 10/2016 after a flu shot ”) ; Ex. 3 at 4 ( medical record from June 23, 2017 stating that petitioner reported pain in his right shoulder “ since injection in 2016 ” ); Ex. 6 at 11 (an August 25, 2017, record showing that petitioner was assessed with right
shoulder “impingement following vaccination ” )

.

Respondent correctly observes that this information w as provided by petitioner,
but he did so cl ose in time to the vaccination

, for the purpose of obtaining medical
treatment. Moreover , the recorded observations from the Easter Seals Colorado corroborate the information provided by petitioner. Records from the November 1, 2016 visit show that petitioner ’ s right arm was more swollen and hard than his left arm. Ex. 2

at 7

. Further, petitioner sought and received treatment only for a right shoulder injury.

The only evidence in this case wh ich contr adicts petitioner’s claim that he received the vaccination alleged as causal in his right injured arm is the record of
vaccination. See Ex. 1 at 2

. However, when the record is viewed in its entirety , the preponderance of evidence, including numerous medical records and affidavits, outweigh the single contradictory record in this case.

For all of the above reasons, t he undersigned finds there is preponderant evidence showing petitioner received the flu vaccination alleged as causal in his right injured arm.

V. Conclusion

In light of the undersigned’s finding that petitioner received this vaccination in her right injured arm

, petitioner ’ s motion is granted.

Accordingly, the following is ORDERED: Respondent shall file , by no later

than Monday, May 27, 2019

, a status report indicating how he intends to proceed7

in this case . At a minimum, the status report shall indicate whether he is willing to engage in tentative discussions r egarding settlement or proffer or is oppo sed to negotiating at this time . In the event respondent wishes to file a R ule 4 (c) report, he may propose a date for filing it, but shall indicate h is position on entering into

nego tiations regardless of whether he wishes to file a Rule 4 (c) report.

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master