In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS 

No. 16-1116V 

 Filed: June 19, 2018 

UNPUBLISHED 

BEVERLY TOWNE, 

 Petitioner, 

v. 

SECRETARY OF HEALTH 

AND HUMAN SERVICES, 

 Respondent. 

Special Processing Unit (SPU); Fact 

Hearing; Findings of Fact; Onset; 

Tetanus Diphtheria acellular 

Pertussis (Tdap) Vaccine; Shoulder 

Injury Related to Vaccine 

Administration (SIRVA) 

   

Verne E. Paradie, Jr., Paradie, Sherman, et al., Lewiston, ME, for petitioner. 

Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent. 

FACT RULING1

Dorsey, Chief Special Master: 

 On September 9, 2016, Dr. Beverly Towne (“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 left 

shoulder injuries caused by a Tetanus Diphtheria acellular Pertussis (“Tdap”) vaccine 

she received on December 23, 2015. Petition at 1-2. The case was assigned to the 

Special Processing Unit of the Office of Special Masters. For the reasons discussed 

below, the undersigned finds that the onset of petitioner’s left shoulder injuries was 

within 48 hours of her December 23, 2015 Tdap vaccination. 

                                                            

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the 

undersigned intends 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). 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. 

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

I. Procedural History Prior to Hearing 

On September 8, 2016, Dr. Towne filed her petition and medical records marked 

as exhibits 1-3. (ECF No. 1.) On January 26, 2017, she filed exhibits 4-9 with a 

Statement of Completion. (ECF Nos.11, 13.) 

On May 1, 2017, respondent filed a status report stating that medical personnel 

at the Division of Injury Compensation at the Department of Health and Human Services 

had completed a preliminary review of petitioner’s claim and determined that 

“petitioner’s symptoms [did] not appear to be within a feasible timeframe to infer a 

causal relationship with the vaccination.” (ECF No. 17). Respondent also noted that 

when petitioner first reported her shoulder pain, approximately 19 weeks after 

vaccination, petitioner advised that it could be related to her exercises involving kettle 

bells. Id. Respondent proposed filing his report pursuant to Vaccine Rule 4(c) within 60 

days. This request was granted. (See Non-PDF Order dated 05/02/2017). 

On July 6, 2017, respondent filed his Rule 4(c) Report. (ECF No. 20.) 

Respondent recommended against awarding compensation to petitioner in this case, 

arguing, inter alia, that the record is insufficient to substantiate that the onset of 

petitioner’s left shoulder symptoms began within forty-eight hours of vaccination. Id. at 

3. Respondent reiterated her argument that petitioner first reported her shoulder 

symptomatology to a medical professional more than four months after vaccination, and 

even then she thought it may be related to kettle ball exercises. Id. citing Pet. Ex. 1 at 

3-6. Respondent states that when petitioner ultimately did associate her pain with 

vaccination, the record is deficient in demonstrating that the onset was specifically 

within 48 hours and as such, “the current record does not establish by preponderant 

evidence that petitioner developed SIRVA as a result of her December 23, 2015 Tdap 

vaccination.” Id. Respondent argues that the Vaccine Act prohibits a finding of 

entitlement “based on the claims of a petitioner alone, unsubstantiated by medical 

records or by medical opinion.” Id.; 42 U.S.C. § 300aa-13(a)(1). 

Thereafter, the undersigned issued an order directing petitioner to file affidavits 

from any fact witnesses that would be able to support her position regarding the onset 

of her shoulder injury. (ECF No. 21). On October 23, 2017, petitioner filed the affidavit 

of the nurse who administered the vaccination, as well as an affidavit from the doctor for 

whom she was employed. See Pet. Exs. 10-11 (ECF Nos. 22-23). 

On November 14, 2017, the parties filed a joint status report stating that they 

have been unable to resolve the matter and requested a fact hearing. On January 11, 

2018, a status conference was held by the staff attorney managing this case and a fact 

hearing was scheduled. (ECF No. 26.) In preparation for the fact hearing, petitioner 

filed a pre-hearing submission. (ECF No. 28). Respondent filed no additional prehearing submissions. 

II. Fact Hearing and Ruling 

A fact hearing was held in Washington, D.C., on May 1, 2018. Dr. Towne was 

the sole witness and she appeared in-person with her attorney. At the conclusion of the 

hearing, the undersigned informed the parties that she intended to issue a ruling from 

the bench. The parties consented. The undersigned stated that her ruling would 
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resolve whether the onset of petitioner’s symptoms occurred within 48 hours of 

vaccination. 

Effective for petitions filed beginning on March 21, 2017, SIRVA is an injury listed 

on the Vaccine Injury Table (“Table”). See Vaccine Injury Table: Qualifications and aids 

to interpretation. 42 C.F.R. § 100.3(c)(10). Although petitioner’s claim was filed before 

SIRVA was added to the Table, and thus cannot be found to be a SIRVA Table injury, 

the undersigned’s findings were informed by the Qualifications and Aids to Interpretation 

for SIRVA criteria used to evaluate such claims. The criteria are as follows: 

A vaccine recipient shall be considered to have suffered SIRVA if such 

recipient manifests all of the following: (i) No history of pain, inflammation 

or dysfunction of the affected shoulder prior to intramuscular vaccine 

administration that would explain the alleged signs, symptoms, 

examination findings, and/or diagnostic studies occurring after vaccine 

injection; (ii) Pain occurs within the specified time-frame; (iii) Pain and 

reduced range of motion are limited to the shoulder in which the 

intramuscular vaccine was administered; and (iv) No other condition or 

abnormality is present that would explain the patient’s symptoms (e.g. 

NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, 

mononeuropathies, or any other neuropathy). 

Id.; see also National Vaccine Injury Compensation Program: Revisions to the 

Vaccine Injury Table, 80 Fed. Reg. 45132, Notice of Proposed Rulemaking, July 

29, 2015 (citing Atanasoff S, Ryan T, Lightfoot R, and Johann-Liang R, 2010, 

Shoulder injury related to vaccine administration (SIRVA), Vaccine 28(51):8049-

8052). 

With these factors in mind, the undersigned made the following preliminary 

findings of fact: 

[A]s I understand the Rule 4 in this case that . . . one of the issues in the case is 

onset, and that is whether or not Dr. Towne experienced the onset within 48 

hours as required by the Table. After having reviewed all of the exhibits, the 

medical records, the affidavits of the witnesses and after hearing Dr. Towne's 

testimony today, I find that onset of her pain occurred within the specified time 

frame of less than or equal to 48 hours. 

My findings are based on a number of key pieces of evidence, including Dr. 

Towne's affidavit and her testimony here today; the affidavit of the nurse who 

administered the vaccine; as well as the affidavit of the physician she worked for 

who was also her PCP, Dr. Brian Knighton; the history documented by Dr. 

Knighton on May 6th, 2016 that Dr. Towne had left shoulder pain which initially 

began four to five months earlier; the history by Dr. Knighton when he 

documented that the Petitioner attributed the pain to getting a DTaP vaccination 

on 12/23/2015 when he notes she developed deltoid pain after the injection, 

since then she has had varying degrees of shoulder pain; as well as the 

evaluation by Dr. Sara Shubert on June 8th, 2016, when she documented that 
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petitioner also developed pain in the deltoid and lateral shoulder which persisted 

up until the current time after the Tdap injection. 

Moreover, the initial physical therapy evaluation performed by Denise Bluhm, 

physical therapist, on June 27th, 2006, notes that Dr. Towne received a tetanus 

shot in her left shoulder December 2015, and the day after the injection had 

significant left upper trapezius and neck pain, which was still present after one 

week. It is also noted on the MRI report dated June 12th, 2016, that Petitioner's 

symptoms started 12/'15 at the time of the Tdap injection. Thus, I find that 

petitioner's pain began within 48 hours of the vaccine.

As for Dr. Towne's delay in seeking treatment until May of 2016, I find the 

reasons for her delay set forth in her affidavit and her testimony here today to be 

credible and reasonable. Specifically, because Dr. Towne is a physician, and it is 

typical for many medical professionals to self-treat or seek out informal advice 

about their own medical ailments, they often wait before seeking formal medical 

treatment. That is what I find happened in these circumstances, and I find the 

delay in seeking treatment to be reasonable given the facts and circumstances of 

this case. That is the end of my ruling. 

Transcript at 46-48. 

III. Conclusion 

In light of all of the above, and in view of the submitted evidence, including 

the medical records, credible witness testimony, and findings of fact, the 

undersigned finds that the onset of petitioner’s right shoulder injuries was within 

48 hours of her December 23, 2015 Tdap vaccination. 

IT IS SO ORDERED. 

 s/Nora Beth Dorsey 

 Nora Beth Dorsey 

 Chief Special Master