In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 17-1906V

Filed: October 11, 2018

UNPUBLISHED

JEANNE RAFFERTY,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Special Processing Unit (SPU); 

Findings of Fact Regarding Site of 

Vaccination and Onset of Pain; 

Denial of Motion to Dismiss; 

Influenza (Flu) Vaccine; Shoulder 

Injury Related to Vaccine 

Administration (SIRVA)

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for 

petitioner.

Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.

ORDER AND FACT RULING1

Dorsey, Chief Special Master:

On December 8, 2017, 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 she suffered a Shoulder Injury Related to 

Vaccine Administration (“SIRVA”) caused in fact by the influenza vaccination she 

received on October 17, 2016. Petition at 1, ¶¶ 1, 4 (ECF No. 1). The case was 

assigned to the Special Processing Unit of the Office of Special Masters. 

 

1 The undersigned intends to post this order and ruling on the United States Court of Federal Claims' 

website. This means the order and 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, the undersigned agrees that the identified material fits within this definition, the undersigned will 

redact such material from public access. Because this unpublished order and ruling contains a reasoned 

explanation for the action in this case, undersigned 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 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

On April 9, 2018, respondent filed a motion to dismiss petitioner’s case, arguing 

that petitioner has failed to establish she is entitled to compensation because the 

evidence shows she received the vaccination alleged as causal in her left, rather than 

right, arm. Respondent’s Motion to Dismiss (“Res. Motion”) at 1. For the reasons 

described below, the undersigned finds there is preponderant evidence sufficient to 

establish petitioner received the vaccination in her right injured arm and denies 

respondent’s motion to dismiss. Additionally, the undersigned finds there is 

preponderant evidence to establish the onset of petitioner’s pain occurred within 48 

hours of vaccination.

I. Procedural History

Shortly after filing her petition, petitioner filed her medical records and affidavit. 

See Exhibits 1-9, filed Dec. 21, 2017 (ECF No. 7); Statement of Completion, filed Dec. 

21, 2017 (ECF No. 8). The initial status conference was scheduled for January 24, 

2018. The morning of the status conference, petitioner filed documentation regarding 

the past revisions to her vaccination record and her requests to have the record further 

edited. See Exhibit 10 (ECF No. 10). 

Following the status conference, respondent was ordered to file a status report 

indicating his tentative position regarding the merits of petitioner’s case. See Order, 

issued Feb. 7, 2018 (ECF No. 11). Instead, respondent filed a motion to dismiss 

petitioner’s case, arguing petitioner has failed to provide sufficient evidence to establish 

she received the vaccination alleged as causal in her right injured arm. (ECF No. 12). 

Petitioner filed a response on April 19, 2018, addressing respondent’s arguments and 

asserting petitioner has provided sufficient evidence to establish she is entitled to 

compensation. (ECF No. 13). She “urge[d] the [undersigned] to issue a decision 

finding that petitioner received the vaccination in her right arm, and is therefore entitled 

to vaccine compensation based on [her] review of the record as a whole.” Id. at 10.3 

No reply was filed by respondent. 

Respondent’s motion to dismiss is now ripe for adjudication.

II. Factual History

A. Medical Records

The medical records from petitioner’s primary care provider (“PCP”), Dr. Wah at 

Carroll Health Group, show that petitioner underwent several surgeries after falling on

ice in 2006. See Exhibit 2 at 18 (summary from visit on Aug. 19, 2014). Petitioner 

continued to suffer chronic back and hip pain and weakness in her lower extremities.

4

 

 

3 The undersigned will treat petitioner’s request as a motion for a ruling on the record but declines to rule 

on entitlement at this time. 

4 Petitioner was assessed with chronic back pain and leg weakness on August 19, 2014. Exhibit 2 at 19. 

The record of that visit provides a history of petitioner’s surgeries in 2006 and 2008 and complication
3

However, there is no mention of arm or shoulder pain in the medical records from prior 

to vaccination.

Petitioner’s PCP records also show that she received influenza vaccinations on 

September 24, 2014, November 2, 2015, and October 17, 2016. See Exhibit 2 at 14, 8, 

5 (in order of the date of administration). The record for the first vaccination, on 

September 24, 2014, does not indicate the arm in which the vaccination was 

administered. Id. at 14. The records for the vaccinations in 2015 and 2016 both 

indicate petitioner received the vaccinations in her left deltoid. Id. at 5, 8. However, the 

record for the later vaccination,5 which is alleged to have caused petitioner’s SIRVA, 

indicates the site of vaccination was initially identified as petitioner’s left vastus lateralis 

(thigh)6 and was edited to change the site of administration to petitioner’s left deltoid. 

See Exhibit 2 at 5. A snapshot of this record is as follows:

 

during a procedure in 2010. Id. at 18. On September 24, 2014, petitioner complained of left hip pain. Id.

at 15. Her continued back pain was also mentioned in that record. Id. An x-ray of petitioner’s left hip, the 

results of which were normal, was performed on October 6, 2014. Id. at 30. On November 20, 2015, it 

was noted that petitioner had slightly less strength in her lower right extremities. Id. at 11. Her back pain 

was evaluated on June 22, 2016, and petitioner was instructed to continue her current pain medication. 

Id. at 6-7. 

5

In addition to the record contained in the medical records from petitioner’s PCP (Exhibit 2 at 5), the

vaccination record was also filed as Exhibit 1. When citing this record, the undersigned will refer to the 

copy filed as part of the medical records from petitioner’s PCP, Exhibit 2 at 5. 

6 Vastus lateralis is the largest muscle in the quadriceps group, located on the side of the thigh. 

https://www.healthline.com/human-body-maps/vastus-lateralis-muscle (last visited on Aug. 31, 2018). 
4

Id. (record of influenza vaccination administered on October 17, 2016). 

It is not clear whether this revision (from left thigh to left deltoid) was made the

day of vaccination, October 17, 2016, or later on December 20, 2016. The record 

indicates it was signed by the person who administered the vaccine, Shannon Gugliotta, 

on October 17, 2016, revised by Dr. Mendoza that same day, and revised at two 

different times by Ms. Gugliotta on December 20, 2016. Exhibit 2 at 5. In contrast, the 

records of vaccination from 2014 and 2015 indicate, on the date of vaccination, they 

were signed by the person administering the vaccination and co-signed by petitioner’s 

PCP, Dr. Wah. Id. at 8, 14. A snapshot of this portion of the influenza vaccination 

administered on September 24, 2014 is as follows:

Id. at 14. 

On December 1, 2016, petitioner returned to her PCP, complaining of right arm 

pain. Seen at this visit by Dr. Hirpara, D.O.,7 she reported pain which had been 

“present since she received her Flu vaccine 5 weeks ago.” Exhibit 2 at 3. Petitioner 

identified the injection site which Dr. Hirpara noted was “tender to touch.” Id. 

Describing her pain as extending to her elbow, petitioner reported that lifting her arm 

was “very painful.” Id. While examining petitioner, Dr. Hirpara observed minimal 

swelling, erythema,8 and tenderness. Exhibit 2 at 4. He ordered an MRI and indicated 

that, depending on the results of the MRI, he would refer petitioner to an orthopedist. 

Id. 

MRIs of petitioner’s right humerus and shoulder were performed on December 6, 

2016. Exhibit 4 at 1-2. The MRI of her right shoulder showed “[b]ursal sided, partial 

tearing of the distal supraspinatus tendon with a background of mild tendinosis,” “[m]ild 

tendinosis of the distal infraspinatus tendon,” and mild osteoarthritis in the 

acromioclavicular (AC) and glenohumeral joints. Id. at 2. 

 

7 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 an M.D. 

8 Erythema is “redness of the skin produced by congestion of the capillaries.” DORLAND’S ILLUSTRATED 

MEDICAL DICTIONARY (“DORLAND’S”) at 643 (32nd ed. 2012).
5

On December 14, 2016, petitioner saw an orthopedist at the Carroll Health 

Group, Dr. Rollo. Exhibit 69 at 5-7. At that visit, she reported two months of right 

shoulder/arm pain with onset after receiving the influenza vaccination. Id. at 5. 

Describing her pain as worse when attempting to lift objects, petitioner denied any 

numbness or tingling. Id. Dr. Rollo reported that he observed “no swelling, deformity, 

or atrophy," tenderness at her biceps tendon upon palpitation, and an active range of 

motion (“ROM”) but with pain. Id. at 6. Noting bursal sided partial tearing of the 

supraspinatus10 and arthritic changes, Dr. Rollo described the changes as 

“degenerative in nature changes and not related to the injection.” Id. at 6-7. He 

prescribed medication to include a prednisone taper and physical therapy (“PT”) to 

begin a few days later. Id. at 7. Petitioner began formal PT at Wellspan Rehabilitation

on December 28, 2016. See Exhibit 7 at 71-72 (intake form).11 

Petitioner followed up with Dr. Rollo on January 11, 2017, again describing right 

shoulder pain which began after she received the influenza vaccination in her right 

shoulder. Exhibit 6 at 2. Petitioner reported that her pain improved by 50% while on 

steroids but returned when the medication was completed. Dr. Rollo observed that 

petitioner’s ROM was further limited, to 80 degrees. Acknowledging that he “initially did 

not believe the needles were long enough to cause any mechanical damage to the 

underlying RTC [(rotator cuff)],” Dr. Rollo indicated that, after further research, he could 

not “confirm or deny the injection as a cause of [petitioner’s] discomfort.” Id. Having 

become aware of studies showing infiltration of the bursa is possible in thin women, Dr. 

Rollo admitted he was “uncertain of the potential side effects of the vaccine itself.” Id. 

He prescribed a daily dose of prednisone and continued PT. Id. at 3. Instructing 

petitioner to return in one month for a re-evaluation, he added that a steroid injection 

should be considered if petitioner continued to experience pain. Id. 

On February 7, 2017, petitioner sought a second opinion from Dr. Bischoff at 

Wellspan Hanover Orthopaedics. See Exhibit 7 at 56 (discharge record from PT

indicating petitioner’s visit to Dr. Bischoff was for a second opinion). At the initial visit to 

Dr. Bischoff, petitioner provided a detailed history. See Exhibit 3 at 10. She again 

described significant right shoulder pain, extending to her elbow, and beginning after 

she received the influenza vaccination on October 17, 2016. Indicating that “the 

injection was given high, . . . [petitioner] point[ed] to the region just underneath her 

 

9 These records show that, in 2014, petitioner was treated by another orthopedist at the Carroll Health 

Group, Dr. Blue, for pain in her left thigh. See Exhibit 6 at 8-14.

10 Dr. Rollo did not specify whether he was referring to the supraspinatus tendon or muscle. Given the 

results of the MRI, showing partial tearing of the tendon, it can be inferred that Dr. Rollo was referring to 

the supraspinatus tendon. See Exhibit 4 at 2 (results of MRI). 

11 On her intake form, petitioner listed “flu shot administration” as the cause of her injury and dated the 

injury as occurring on October 17, 2016. See Exhibit 7 at 71. Petitioner included information about her 

earlier neck and back injury on the intake form. Id.
6

acromion laterally” which she stated occasionally felt swollen. Id. Although that area of 

her right shoulder “ached significantly for the next 2 weeks” following vaccination, 

petitioner recounted that she did not seek medical care earlier due to the death of a 

friend. Id. 

Dr. Biscoff reported, “[o]n examination of [petitioner’s] right shoulder, once again, 

she points just inferior to the lateral ledge of the acromion as to where the injection was 

given.” Exhibit 3 at 10. While indicating he could not “appreciate any significant 

swelling about the shoulder, [and] [t]here is no erthythema or warmth,” Dr. Bischoff did 

observe “mild tenderness to the palpitation about the shoulder girth itself,” adding that it 

was non-specific. Id. He also reviewed the MRI of petitioner’s right shoulder, noting 

that her “rotator cuff tendons appear to be intact, [t]here may be some evidence of a 

tendinopathy, . . . “mild effusion within the soft tissues, . .. . [and] some subacromial 

spurring and AC joint arthritis.” Id. He opined that the cause of petitioner’s right 

shoulder pain was the influenza vaccination she received, adding that, although rare, 

SIRVA is “described in the literature.” Id. He discussed options such as a steroid 

injection or arthroscopic surgery, prescribed an additional tapering dose of prednisone, 

and instructed petitioner to stop PT. Id.; see also Exhibit 7 at 56 (describing petitioner’s 

discharge from PT upon the recommendation of Dr. Bischoff, after attending eight 

sessions). 

On March 1, 2017, petitioner visited Dr. Bischoff for a pre-operative physical, 

having “elected to proceed with the right shoulder arthroscopy.” Exhibit 3 at 8. In the 

record from that visit, it is noted that petitioner “once again describe[d] the pain as being 

instantaneous at the time of the injection and it has not improved with time.” Id. Dr. 

Bischoff described the planned surgery as “arthroscopic irrigation and debridement of 

the subacromial space,” possibly including an acromioplasty.12 Exhibit 3 at 8. 

Arthroscopic surgery on petitioner’s right shoulder was performed by Dr. Bischoff 

on March 15, 2017. Exhibit 3 at 13-14; see also Exhibit 5 (records from Hanover 

Hospital where the surgery was performed). According to Dr. Bischoff’s records, 

general anesthesia was administered. Exhibit 3 at 13. Dr. Bischoff then created 

several portals but elected not to enter the joint itself to avoid introducing any irritants. 

He observed the bursa to be enlarged13 and hyperemic.14 Exhibit 3 at 13. Performing a 

bursectomy, Dr. Bischoff used a shaver to debride the bursa, undersurface of the 

 

12 Acromioplasty is the “surgical removal of an anterior spur of the acromion to relieve mechanical 

compression of the rotator cuff during movement of the glenohumeral joint.” DORLAND’S at 20. 

13 Dr. Bischoff noted that petitioner had “an abundant amount of hypertrophic bursa.” Exhibit 3 at 13. 

Hypertrophic is the adjective form of hypertrophy, “the enlargement or overgrowth of an organ or part due 

to an increase in size of its constituent cells.” DORLAND’S at 898. 

14 Hyperemic is the adjectival form of hyperemia, “an increase of blood in a part.” DORLAND’S at 888. 
7

acromion, and coracoacromial ligament. Id. at 13-14. An acromioplasty was not 

performed, but Dr. Bischoff debrided further in the subdeltoid interval. Id. at 14. He 

observed no evidence of a rotator cuff tear. Id. 

Petitioner returned to Wellspan Rehabilitation for her post-surgery PT on March 

17, 2017. See Exhibit 7 at 50-51 (plan of care from Dr. Bischoff), 52-53 (initial 

evaluation by physical therapist). She had post-surgical visits with Dr. Bischoff on 

March 21, 24, April 25, June 6, and August 21, 2017. Exhibit 3 at 2-7, 16-17. At all 

visits, petitioner was described as healing well, still experiencing some post-surgical 

pain, and participating in PT. Id. Throughout the medical records from Dr. Bischoff and 

Wellspan Rehabilitation, petitioner’s injured arm/shoulder is identified as her right 

arm/shoulder. Petitioner was discharged from PT on May 30, 2017, having participated 

in 21 sessions. Exhibit 7 at 21. At her last visit, on August 21, 2017, Dr. Bischoff noted 

that petitioner was improving and “making good progress.” Exhibit 3 at 17. He 

instructed her to continue her home exercise program and to return “on an as needed 

basis.” Id. 

On September 20, 2017, petitioner visited Wellspan Family Medicine to establish 

new patient care. See Exhibit 8 at 2. Her recent shoulder surgery was included in 

petitioner’s history, but no ongoing symptoms were noted. Id. at 2-5. 

B. Petitioner’s Affidavit and Other Documents

In her affidavit, which was signed and notarized on December 15, 2017, 

petitioner addresses the onset of her injury, the difficulties it has caused her, and her 

attempts to amend the vaccination record to reflect vaccine administration in her right, 

rather than left, arm. See Exhibit 9. She provided documents which describe her 

efforts to amend the vaccination record and the responses she received. See Exhibit 

10. 

Regarding onset, petitioner alleges that she “immediately experienced severe 

pain in [her] shoulder which was different than any other vaccine [she] had previously 

received.” Exhibit 9 at ¶ 1. Indicating she had her three-year-old son with her, 

petitioner maintains she did not say anything about her pain because she did not want 

to frighten her son and “assumed it would feel fine in a short time.” Id. Petitioner 

reports being unable to open the car door with her right arm after leaving the clinic. 

Petitioner indicates, rather than subsiding, her “shoulder and arm pain worsened to the 

point that [she] could no longer lift a cup of tea to my mouth with my right hand.” Id. 

Petitioner describes the effects of her right shoulder injury over the subsequent 

year. See Exhibit 9 at ¶¶ 2-4, 6. A mother of twin three-year-old sons, one of whom 

has autism, petitioner contends she was unable to care for her sons or herself and was 

forced to rely on her husband, mother, sister-in-law, and neighbor for help. Id. at ¶¶ 2-4. 
8

Petitioner describes difficulty brushing her teeth, dressing, and washing her hair. Id. at 

¶ 4. In addition to the physical difficulties she experienced, petitioner claims she and 

her family suffered emotionally. Id. She credits the second orthopedist she saw, Dr. 

Bischoff, for “the improvement and relief [she has experienced] thus far.” Id. at ¶ 6.

In her affidavit, petitioner claims her ordeal has been complicated by “the fact 

that [her] vaccine record is not correct.” Exhibit 9 at ¶ 5. She indicates she was not 

aware the record originally indicated she received the vaccination in her left thigh. 

Further, she did not know that the record was revised to reflect administration in her left 

deltoid until January 2017, after she contacted her PCP, in early December 2016,

regarding her shoulder injury. She indicates she requested the record be further 

revised to indicate administration was in her right deltoid and “was told nothing could be 

done.” Id. 

In early April 2017, petitioner received a letter from Sandra Haines, the H.I.M. 

Coordinator at Carroll Health Group, with a form petitioner could submit to request her 

record be amended. Exhibit 9 at ¶ 5; see Exhibit 10 at 2 (copy of the letter dated March 

30, 2017), at 3 (copy of partially completed form). Petitioner indicates she returned the 

completed form in May 2017, after her shoulder surgery. Exhibit 9 at ¶ 5. It appears 

the form was marked as denied on July 3, 2017, and returned to petitioner, along with a 

second letter from Sandra Haines. See Exhibit 10 at 5 (copy of letter), at 10 (copy of 

completed form, signed by petitioner on May 29, 2017, with July 3, 2017 denial). In the 

letter, also dated July 3, 2017, Ms. Haines informed petitioner that her request had been 

denied but that she could submit a rebuttal in a “statement of disagreement” which

would be included in her medical records and released, along with the medical records, 

in response to any request authorized by petitioner. Exhibit 10 at 5. 

Petitioner has provided an unsigned copy of her statement, dated August 14, 

2017. See Exhibit 10 at 6-8. In the statement, she notes that her vaccination record 

was revised twice in December 2017, and describes her attempts to amend the record 

to reflect what she alleges is the correct information regarding the site of vaccination. 

Id. at 6. She provides further information regarding the vaccination, recounting that her 

vaccination “was given extremely high in [her] right shoulder" (id. at 7) and was 

administered close enough to a red mole she has on her right arm/shoulder that the 

mole was covered by the bandage placed over the injection site (id. at 7-8). 

In a letter dated November 15, 2017, Ms. Haines acknowledged petitioner’s 

statement had been received and that it, as well as the other written documents 

pertaining to petitioner’s request, would be included in any subsequent authorized 

release of her medical records. Exhibit 10 at 9. 
9

III. Party Contentions

In his motion to dismiss, respondent argues that “[b]ecause the current record is 

insufficient to establish that petitioner received a vaccination in her right arm, petitioner 

cannot meet her burden to establish SIRVA injury under the Vaccine Act.” Res. Motion 

at 3. Respondent bases his argument on the vaccination record and conclusion of the 

administrator that this record was accurate. Id. at 1 (citing the vaccination record, 

Exhibit 1), 3 (citing language in the denial of petitioner’s request for correction, Exhibit 

10 at 10). Respondent dismisses the information contained in contemporaneously 

created medical records as “based solely on the histories provided by petitioner.” Id. at 

3. He also dismisses the information in petitioner’s affidavit and documentation 

regarding her attempts to change the site of vaccination.

“Petitioner asserts that the overwhelming evidence in the record is that she 

received the October 17, 2016 flu vaccination in her right arm.” Petitioner’s Response 

to Res. Motion (“Pet. Response”), filed Apr. 19, 2018, at 2 (ECF No. 13). Arguing that 

“[t]he medical records are replete with references that petitioner’s shoulder pain was 

associated with the flu vaccination she received in her right arm on October 17, 2016,” 

petitioner maintains that “[t]he single record relied upon by respondent is clearly in error 

and stands in sharp contrast with the vast majority of other medical records in this 

case.” Id. 

Petitioner counters respondent’s criticism of the information contained in histories 

provided by petitioner by asserting that, like other information in contemporaneously 

created medical records, these histories are entitled to greater weight. Pet. Response

at 6. She argues that by questioning these histories, respondent is assuming that 

petitioner was either mistaken or dishonest when she provided them. Id. at 7-8. 

Moreover, petitioner notes that some information comes not from medical histories but 

from physical examinations performed by petitioner’s treating physicians. Id. Stressing 

that special masters are not bound by any particular medical record in vaccine cases, 

petitioner argues that the vaccination record, already edited on at least one occasion, is 

not reliable and should be given little weight. Id. at 9-10 (citing § 13(b)). 

Petitioner maintains that, once the question of the site of administration is 

resolved, “this is a straightforward Table case.” Pet. Response at 1. She asks that the

undersigned deny respondent’s motion and urges her “to issue a decision finding that 

petitioner received the vaccination in her right arm, and is therefore entitled to vaccine 

compensation based on the [undersigned’s] review of the record as a whole.” Id. at 10. 
10

IV. Findings of Fact

A. Legal Standard

A petitioner must prove, by a preponderance of the evidence, the factual 

circumstances surrounding her claim. § 13(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, the 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 extra 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 evidence. 

Burns, 3 F.3d at 416. “Written 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. Cl. 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 records sufficient to 

establish petitioner received the influenza vaccination in her right arm. When seeking 

treatment for her right arm/shoulder pain, petitioner regularly attributed her condition to 

the influenza vaccination she received in her injured right arm. Not once does petitioner 

indicate that she received the vaccination in her left arm. 
11

On December 1, 2016, petitioner was examined by Dr. Hirpara, a physician in the 

same practice as her PCP, Dr. Wahl, at the Carroll Health Group. At that visit, petitioner 

identified the injection site to be the proximal deltoid region of her right arm. See Exhibit 

2 at 3. Dr. Hirpara ordered an MRI and referred petitioner to an orthopedist at the 

Carroll Health Group, Dr. Rollo. The MRI of petitioner’s right shoulder was performed 

on December 6, 2016. 

Petitioner saw Dr. Rollo on December 14, 2016 and January 11, 2017. At the 

December 14, 2016 visit, petitioner again linked her right shoulder pain to the influenza 

vaccination she received. See Exhibit 6 at 5. Dr. Rollo prescribed PT for petitioner’s 

right shoulder, which petitioner began at Wellspan Rehabilitation on December 28, 

2016. 

Petitioner’s initial PT evaluation was performed by Elliot Kohr, DPT.

15

 In the 

record from that evaluation, he documented petitioner “report[ed] receiving a right 

shoulder flu shot on October 17, 2016.” Exhibit 7 at 69. 

Petitioner sought a second opinion from Dr. Bischoff, an orthopedist at Wellspan 

Hanover Orthopedics, on February 7, 2017. Dr. Bischoff treated petitioner through 

August 2017, performing her surgery on March 15, 2016. At her initial visit with Dr. 

Bischoff, petitioner described the injection as “given high.” Exhibit 3 at 10. While Dr. 

Bischoff was examining her right shoulder, petitioner “point[ed] [to] just inferior to the 

later edge of the acromion, as to where the injection was given.” Id. 

Respondent correctly observes that this information was provided by petitioner, 

but she did so relatively close in time to vaccination (within four months), for the 

purpose of obtaining medical treatment. Moreover, the recorded observations of Dr. 

Hirpara corroborate the information provided by petitioner. When Dr. Hirpara examined 

the injection site identified by petitioner on December 1, 2016, he observed swelling, 

redness, and tenderness at the injection site. See Exhibit 2 at 3-4. Although he 

characterized these symptoms as minimal, Dr. Hirpara’s observations provide 

substantial corroborating evidence that the vaccination was administered in petitioner’s 

right deltoid as she reported. 

Furthermore, the information provided by petitioner during her treatment and the

observations and conclusions of her treating physicians are consistent with diagnostic 

findings and the clinical course of a SIRVA injury in petitioner’s right arm. The MRI of 

petitioner’s right shoulder performed on December 6, 2016 revealed “[b]ursal sided, 

partial tearing of the distal supraspinatus tendon with a background of mild tendinosis,” 

“[m]ild tendinosis of the distal infraspinatus tendon,” and mild osteoarthritis in the 

acromioclavicular (AC) and glenohumeral joints. Exhibit 4 at 2. During her March 15, 

2017 shoulder surgery, Dr. Bischoff described petitioner’s bursa as enlarged and 

hyperemic. Exhibit 3 at 13. 

 

15 DPT stands for Doctorate of Physical Therapy. 
12

Petitioner consistently reported that her right shoulder/arm pain occurred upon 

vaccination and increased in severity when she attempted to lift her arm above her 

shoulder or to lift a heavy object. E.g., Exhibits 2 at 3 (visit with Dr. Hirpara); 6 at 5 

(initial visit with Dr. Rollo). Petitioner was described as experiencing right shoulder pain 

when demonstrating her ROM. E.g., Exhibits 6 at 2 (initial visit to Dr. Rollo); 3 at 10 

(initial visit with Dr. Bischoff). At her second visit with Dr. Rollo, the ROM for petitioner’s 

right shoulder was observed to be limited to 80 degrees. Exhibit 6 at 2. Petitioner 

attended eight PT sessions at Wellspan Rehabilitation from late December 2016 to 

early February 2017. In the discharge report, completed by Lauren Miller, PT, it was 

noted that petitioner “showed minimal to no progress with range of motion or strength”

in her right shoulder. Exhibit 7 at 56. The severity of petitioner’s right shoulder pain 

decreased while on steroids but returned to its previous level when the medication was 

stopped. Exhibit 6 at 2. 

The first orthopedist seen by petitioner, Dr. Rollo at Carroll Health Group, initially 

opined that he did not believe petitioner’s right shoulder injury was caused by her 

influenza vaccination. Exhibit 6 at 7. However, after familiarizing himself with medical 

literature showing infiltration of the bursa is possible in thin women, he took a neutral

position regarding causation. Id. at 2-3 (reflecting petitioner’s injury could or could not 

be caused by her vaccination). The second orthopedist who treated petitioner, Dr. 

Bischoff at Wellspan Hanover Orthopaedics, clearly linked petitioner’s right shoulder 

pain to the influenza vaccination she received. See Exhibit 3 at 10. He stated, “[m]y 

opinion is that the shoulder pain is coming from this injection, and there is an entity 

called SIRVA, . . . that is rare, but it is described in the literature.” Id. 

The only evidence in this case which contradicts petitioner’s claim that she 

received the vaccination alleged as causal in her right injured arm is the record of 

vaccination. See Exhibit 2 at 5. This record was revised on at least one, and possibly 

three occasions. Revisions are noted on the date of administration, October 17, 2016, 

and twice on December 20, 2016. Additionally, the record contains a notation stating it 

has been edited to correct the site of vaccination, from left thigh to left deltoid. Id. 

Given that the site of administration was originally identified as petitioner’s left thigh, it is 

not unreasonable to conclude that the revised record, noting vaccination in petitioner’s 

left deltoid, may still be incorrect.

According to petitioner, she was not aware of any issue regarding her vaccination 

record until early January 2017. See Exhibits 9 at ¶ 5 (petitioner’s sworn affidavit 

executed on December 15, 2017); 10 at 7 (unsigned copy of petitioner’s written 

response to the denial of her request to amend her vaccination record dated August 14, 

2017). She says that, prior to that time, on December 9, 27, and 29, 2016, she spoke to 

individuals at her PCP’s clinic regarding what she viewed as their responsibility for her 

shoulder injury and mounting medical bills. Exhibit 10 at 6. In early January 2017, she 

discovered the record had been revised previously and documented that the vaccine 

was administered in her left deltoid. Exhibit 9 at ¶ 5. 
13

Given the three alterations made to the vaccine administration record and the 

fact that its original information was erroneous, the undersigned assigns less evidentiary 

weight to this record. The undersigned is further swayed by the timing of the 

alteration(s) in December 2016, which appears to have occurred after petitioner called 

her PCP and raised concerns about her shoulder injury. 

For all of the above reasons, the undersigned finds there is preponderant 

evidence showing petitioner received the influenza vaccination alleged as causal in her 

right injured arm. 

C. Onset of Pain

After reviewing the entire record in this case, the undersigned also finds that the 

onset of petitioner’s pain occurred within 48 hours of vaccination. When seeking 

treatment for her shoulder pain, petitioner consistently indicated that her pain occurred 

immediately after receiving the influenza vaccination on October 17, 2016. 

For example, when petitioner first sought treatment from Dr. Hirpara at Carroll 

Health Group on December 1, 2016, she described her pain as “present since” 

vaccination. Exhibit 2 at 3. At her first visit to the orthopedist at Carroll Health Group, 

Dr. Rollo, petitioner identified the onset of her pain as occurring “after receiving a flu 

shot.” Exhibit 6 at 5. When evaluated by her physical therapist, Dr. Kohr, DPT, 

petitioner “report[ed] significant pain during her flu shot” which progressed over the next 

two weeks. Exhibit 7 at 69 (emphasis added). Petitioner again described her onset as 

occurring after vaccination when seeking a second orthopedic opinion from Dr. Bischoff

at Wellspan Hanover Orthopaedics. Exhibit 3 at 10. 

In her affidavit, petitioner alleges immediate and severe pain upon vaccination. 

Exhibit 9 at 1. The undersigned finds that the medical records support this assertion. 

Thus, there is preponderant evidence that the onset of petitioner’s pain occurred within 

48 hours of her October 17, 2016 vaccination. 

V. Conclusion

Respondent’s motion to dismiss is based solely on his assertion that the 

evidence shows petitioner received the vaccination alleged as causal in her left, rather 

than right, arm. In light of the undersigned’s finding that petitioner received this 

vaccination in her right injured arm, respondent’s motion to dismiss is DENIED. 

Although petitioner requested that the undersigned issue a decision on 

entitlement, the undersigned will defer ruling on entitlement at this time. The 

undersigned requests that petitioner submit a demand to respondent within 30 days.

Petitioner shall file a status report indicating that she has forwarded her 

demand and supporting documentation to respondent by no later than Friday, 
14

November 09, 2018. Respondent shall file a status report 30 days thereafter 

updating the undersigned on the parties’ settlement discussions.16 

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master

 

16 The exact date for respondent’s status report will be set after petitioner has filed her status report.