VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-01664
Package ID: USCOURTS-cofc-1_16-vv-01664
Petitioner: Kelli Tenneson
Filed: 2016-12-20
Decided: 2019-03-18
Vaccine: influenza
Vaccination date: 2015-10-06
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 88017

AI-assisted case summary:
On December 20, 2016, Kelli Tenneson filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that an influenza vaccination she received on October 6, 2015, caused a shoulder injury related to vaccine administration (SIRVA). Ms. Tenneson, who was 58 years old at the time, stated that the day after her vaccination, she experienced severe pain in her left shoulder, which radiated down her arm. She attributed her delay in seeking medical treatment for several months to her reluctance to see doctors and her unfamiliarity with vaccine-related shoulder injuries. She eventually sought treatment in March 2016, where she was diagnosed with adhesive capsulitis. The Secretary of Health and Human Services (respondent) argued that the claim should be denied because her symptoms did not manifest within the medically accepted timeframe of 48 hours. The Chief Special Master, Nora Beth Dorsey, issued a ruling on entitlement on March 30, 2018, finding that Ms. Tenneson's testimony, supported by her medical records from subsequent treatment, established that her pain began within 48 hours of the vaccination. The Chief Special Master noted that the delay in seeking treatment did not negate the credibility of her account and that her medical records corroborated her reported timeline. The case proceeded as an off-Table claim, requiring proof of causation-in-fact. The Chief Special Master applied the Althen test, finding that a medical theory connected the vaccine to the injury, a logical sequence of cause and effect was established, and a proximate temporal relationship existed. The respondent filed a motion for review, challenging the Chief Special Master's factual finding regarding the onset date as arbitrary and capricious. On March 18, 2019, Judge Elaine D. Kaplan of the U.S. Court of Federal Claims denied the motion for review, upholding the Chief Special Master's decision. Judge Kaplan found that the Chief Special Master's determination was based on evidence in the record and reasonable inferences, and that the delay in seeking treatment did not render the petitioner's account not credible. On November 19, 2018, following the entitlement ruling, Chief Special Master Dorsey issued a decision awarding Ms. Tenneson $88,017.82 in compensation. This amount was comprised of $85,000.00 for past and future pain and suffering and $3,017.82 for unreimbursable expenses, paid as a lump sum.

Theory of causation field:
Kelli Tenneson, a 58-year-old female, received an influenza vaccination on October 6, 2015. She alleged that this vaccination caused a Shoulder Injury Related to Vaccine Administration (SIRVA). The public decision does not detail the specific medical theory or expert testimony presented to establish the mechanism of injury, but notes that SIRVA is thought to occur as a result of unintended injection of vaccine antigen or trauma into and around the shoulder's bursa, leading to inflammation. The Chief Special Master found that Ms. Tenneson's shoulder pain began within 48 hours of the vaccination, satisfying the proximate temporal relationship prong of the Althen test. The injury was diagnosed as adhesive capsulitis. The case was an off-Table claim, requiring proof of causation-in-fact. The Chief Special Master found that the petitioner established a logical sequence of cause and effect and that there was no evidence of unrelated factors causing the injury. The respondent argued against entitlement based on the delay in seeking treatment and alleged inconsistency with contemporaneous records, but this was rejected by both the Special Master and the Court of Federal Claims. Ms. Tenneson was awarded $88,017.82, consisting of $85,000.00 for pain and suffering and $3,017.82 for unreimbursable expenses, as a lump sum payment. Attorneys for petitioner were Ronald Craig Homer and Meredith Daniels (Conway Homer, P.C.), and for respondent was Daniel Anthony Principato (U.S. Department of Justice). The decision on entitlement was issued by Chief Special Master Nora Beth Dorsey on March 30, 2018, and the damages decision by Chief Special Master Dorsey on November 19, 2018. The Court of Federal Claims, Judge Elaine D. Kaplan, upheld the entitlement decision on March 18, 2019.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_16-vv-01664-0
Date issued/filed: 2018-06-19
Pages: 12
Docket text: PUBLIC ORDER/RULING (Originally filed: 3/30/2018) regarding 31 Ruling on Entitlement. Signed by Chief Special Master Nora Beth Dorsey. (rp) Service on parties made.
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Case 1:16-vv-01664-EDK Document 35 Filed 06/19/18 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1664V
Filed: March 30, 2018
UNPUBLISHED
KELLI TENNESON,
Special Processing Unit (SPU);
Petitioner, Ruling on Entitlement; Causation-In-
v. Fact; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
SECRETARY OF HEALTH AND Administration (SIRVA)
HUMAN SERVICES,
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for
respondent.
RULING ON ENTITLEMENT1
Dorsey, Chief Special Master:
On December 20, 2016, 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”) as a result of her October 6, 2015 influenza (“flu”) vaccination.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters. Petitioner now moves for a decision on the written record finding she
is entitled to compensation. (See ECF No. 28.) Respondent conversely moves for a
ruling on the record denying compensation to petitioner. (See ECF No. 27.) For the
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).

Case 1:16-vv-01664-EDK Document 35 Filed 06/19/18 Page 2 of 12
reasons described below, the undersigned finds that petitioner is entitled to
compensation.
I. Procedural History
Between December 23, 2016 and April 13, 2017, petitioner filed medical records
and affidavits from six individuals, including herself, in support of her claim. (ECF Nos.
7-8, 10-11, 16.)
On June 19, 2017 respondent filed his Rule 4(c) Report arguing that petitioner
failed to establish the onset of her left shoulder symptoms within a medically appropriate
time period, 48 hours, and thus failed to establish by preponderant evidence that she
developed SIRVA as a result of her October 6, 2015 flu vaccination. (ECF No. 18 at 5-
6)
Thereafter, on July 18, 2017 a status conference was convened by the OSM staff
attorney managing this claim on behalf of the undersigned to share the undersigned’s
impressions of the claim having reviewed petitioner’s medical records and affidavits, as
well as respondent’s Rule 4(c) Report. The undersigned issued a follow-up Order
indicating as follows:
[T]his claim generally meets the requirements for SIRVA. As an
initial matter, petitioner’s affidavit together with the records evidence onset
within 48 hours of petitioner’s vaccination. Accordingly, a fact hearing
should not be necessary. Specifically, both petitioner and her husband
aver in their affidavits that petitioner suffered pain the day after her
October 6, 2015 flu shot. Exs. 6 and 8. Further, at petitioner’s March 30,
2016 medical appointment she indicated she had “left arm pain since the
flu shot.” Ex. 2 at 89.
Additionally, the undersigned notes that petitioner’s clinical course
is consistent with SIRVA and that petitioner’s delay in reporting her injury
speaks to the severity and value of her injury. The undersigned does not
believe this is a claim that should go to hearing, but rather should be
resolved for a reasonable amount. Accordingly, the undersigned
encourages petitioner to make a reasonable demand upon respondent.
Order filed July 26, 2017. (ECF No. 19) To address concerns raised by respondent in
his Rule 4(c) Report and at the July 18, 2017 status conference petitioner agreed to file
a supplemental affidavit. (Id.) On August 22, 2017 petitioner filed supplemental
affidavits from three witnesses including herself. (ECF No. 21) Respondent filed a
status report on October 2, 2017 indicating that he was not willing to engage in
settlement discussions and intended to defend this case. (ECF No. 25)
Subsequently, the parties agreed the undersigned should issue a ruling on the
written record in lieu of a fact hearing and a briefing schedule was set. Additionally, the
undersigned filed the following two medical journal articles as evidence in regard to

Case 1:16-vv-01664-EDK Document 35 Filed 06/19/18 Page 3 of 12
SIRVA: B. Atanasoff et al., Shoulder injury related to vaccine administration (SIRVA),
28 Vaccine 8049 (2010), filed as Court Exhibit I, and M. Bodor and E Montalvo,
Vaccination-related shoulder dysfunction, 25 Vaccine 585 (2007), filed as Court Exhibit
II. (ECF No. 26)
Petitioner and respondent each filed a motion for a ruling on the record on
November 20, 2017. (ECF Nos. 27-28) Petitioner filed response to respondent’s
motion on December 4, 2017 and respondent filed a reply to petitioner’s response on
December 5, 2017. (ECF Nos. 29-30)
Thus, this matter is ripe for a ruling on petitioner’s entitlement to compensation.
II. Factual History3
On October 6, 2015, petitioner received an intramuscular flu vaccination from
Kaiser Permanente – Colorado, her primary care provider, which was administered in
her left deltoid. (Ex. 1 at 1) At the time of her vaccination, petitioner was 58 years old.
(Ex. 1 at 1.) Her prior medical history was significant for low back pain, osteoporosis,
and irritable bowel syndrome. (Ex. 2 at 46-48)
Petitioner, a recently retired director of a preschool, provided testimony in her
affidavits that the vaccine was administered “very high up on my left arm.” (Ex. 6 at 1;
Ex. 14 at 1.) Petitioner explained that the “next day, I woke up with extreme pain in my
shoulder. The pain started in the exact area where the shot was given and by the end
of the evening I was having sharp pains all the way down my left arm. I thought the
pain would go away eventually, so I tried to wait it out.” (Ex. 6 at 1-2; Ex. 14 at 1.)
Petitioner further testified that she is not someone “who easily goes to the doctor, so
despite my ongoing pain as time progressed, I did not immediately seek care for my
symptoms.” (Ex. 14 at 1; Ex. 6 at 2). Petitioner further explained that she was busy
watching her granddaughter and “had never heard of the flu vaccine causing this type of
sustained pain, so I continued to tough it out.” (Ex. 6 at 2; Ex. 14 at 1). Petitioner’s
husband, Michael Tenneson, likewise testified by affidavit that the day after she
received her flu vaccine petitioner told him that “where she received the flu shot, really
hurt. She also told me that she could not lift her left arm above her shoulder without
being in pain.” (Ex. 8 at 1) Mr. Tenneson testified that he told petitioner it was “probably
normal to feel pain the day after receiving a flu shot.” (Id.)
On December 17, 2015, primary care records indicate that petitioner called her
primary care provider requesting “a form faxed to her employer, please asap” indicating
that “she has been seen in the last year and is in good health.” (Ex. 2 at 78) Petitioner
averred in her affidavit that this phone call related to a form that was required by the
State of Colorado in order for her to serve as a Substitute Director at the preschool from
where she recently retired. (Ex. 14 at 2) Petitioner testified that the form was a one
3 While the undersigned has reviewed and considered all of the filed evidence in this claim, this factual
history is condensed for brevity.

Case 1:16-vv-01664-EDK Document 35 Filed 06/19/18 Page 4 of 12
page document indicating she had no communicable diseases that her doctor had seen
her within the year, and that she was able to work with children. (Id.) Petitioner stated
the form was based on a physical examination which took place prior to her October 6,
2015 flu vaccination. Petitioner did not undergo a physical examination on December
17, 2015. Petitioner explained that at that time she requested the form be completed
“my shoulder was painful, but because I did not know that the flu vaccine could cause
such a sustained injury, I continued to have the mindset it would get better with time.”
(Ex. 14 at 2) As the pain continued, petitioner testified in her affidavit that she made an
appointment in January of 2016 to see her primary care provider. (Id. at 3) The
appointment was scheduled for March 30, 2016.4 (Id.)
On January 22, 2016, petitioner’s medical records reflect that she placed a
phone call to Kaiser, her primary care provider, regarding a possible UTI. (Ex. 2 at 80)
That same day petitioner presented to the emergency room (“ER”), at which time the
following symptoms were recorded: right flank/abdominal pain, low back pain, blood in
urine, discomfort with urination, pain and vomiting. (Ex. 3 at 1) The level of petitioner’s
symptoms were documented by the ER as “severe.” (Id.) The physical exam section
of petitioner’s ER record includes an “extremities” section with the following descriptions
checked: “non-tender,” “nml ROM,” and “no pedal edema.” (Id. at 2) Ultimately,
petitioner was found to be suffering an acute urinary tract infection and kidney stones.
(Id. at 3-8) Petitioner explained in her affidavit that she was enroute to a trip to the
mountains with her family on January 22, 2016 when she started to experience
“excruciating back pain” and that by the time they reached their destination she was “in
horrible pain, and could not stop urinating and vomiting.” (Ex. 14 at 3) Petitioner
indicated due to her severe symptoms her husband and son took her to the ER where
she spent several hours, but was only seen by a doctor for two to three minutes. (Id. at
3-4) Petitioner testified that no examination of her upper extremities was conducted
while she was at the ER, to include that no examination of her left shoulder for
tenderness or range of motion. (Id. at 4)5 Petitioner testified that only her back and
abdomen were touched. (Id.) Petitioner explained subsequent to her visit she spoke to
the billing department in regard to her visit and after describing her experience at the
ER they reduced the cost billed to her and apologized for the care she received. (Id.)
The affidavits of petitioner’s son and husband, both who stayed with her in the ER
examination room, are consistent with petitioner’s recollection of January 22, 2016.
(Exs. 15-16)
Thereafter, the medical records reflect that petitioner placed phone calls to
Kaiser on January 25 and 26, 2016 in follow-up to her ER visit due to concerns about
4 The undersigned notes petitioner’s affidavit contains a typographical error indicating that the
appointment was scheduled for March 31, 2016.
5 However, petitioner did aver that she noted to the CT scan technician at the ER that she could not raise
both of her arms overhead because she had very minimal range of motion as a result of her flu vaccine in
October. (Ex. 14 at 5) He indicated she should let a doctor know what occurred and she told him she had
a physical scheduled for March. (Id.)

Case 1:16-vv-01664-EDK Document 35 Filed 06/19/18 Page 5 of 12
leaving town in a few weeks. (Ex. 2 at 84-85) Petitioner described her kidney stone,
and “[d]enied pain, blood in her urine and fever.” (Id. at 84) Deja Vandeloo, MD, noted
that pain medication was “not really need(ed) right now unless absolutely has to” and
that petitioner indicated she was feeling better. (Id. at 85) Dr. Vandeloo stated urology
indicated the stone should pass and to follow-up in two weeks if it does not. (Id.)
Subsequently, petitioner first received medical treatment for her shoulder pain on
March 30, 2016. (Ex. 2 at 89) Petitioner testified in her affidavit this was the first time
she had seen her primary care doctor, Dr. Vandeloo, since prior to her flu shot. (Ex. 14
at 6) According to Dr. Vandeloo’s record, petitioner reported she experienced
left arm pain since flu shot 10/15, pain all the way down arm. Can barely
move arm now. Just hasn't gotten better. Wakes her up at night. Does
watch her grand-baby and can lift her but hard time getting seat belt, etc.
No other trauma. No prior shoulder problems. Wondering if they hit a
nerve or something as they gave the flu shot kind of high up she thinks.
(Ex. 2 at 89) Dr. Vandeloo’s muscoskeletal examination of petitioner found “limited ROM
left shoulder—can only abduct/extend to approx 80-90 degrees and can only get a few
more degrees passively.” (Id. at 90 ) Dr. Vandeloo diagnosed petitioner with adhesive
capsulitis of the left shoulder. (Id.at 91) Dr. Vandeloo followed up with the “shot line
who said [petitioner’s shoulder injury] was not due to vaccine by they can’t comment on
administration.” (Id.) An orthopedist was also consulted who “also felt unlikely this is all
related to flu shot.” (Id.) However, the orthopedist did note that petitioner “certainly
could have developed a frozen shoulder if she hasn’t moved it [for] 5 mo[nths] [since the
flu vaccination].” (Id. at 97) Dr. Vandeloo ordered a left shoulder xray and referred
petitioner to physical therapy and an orthopedist. (Id. at 91) Petitioner’s orthopedist
referral notes as follows:
Kelli Tenneson is a 58 year old female. Please see this patient and send
me a copy of your note including your opinion and recommendations for
the following left shoulder problem: frozen shoulder--pt has had pain ever
since flu shot 10/15 w/ no injury. Worsening ROM over last 5 months. No
trauma.
(Id. at 89)
Petitioner followed up with physical therapist, Robert Webers, on April 13, 2016.
(Id. at 99) Mr. Webers recorded the following history: “Pt got a flu shot in Oct. 2015, and
since then she has had pain as above [right lateral humerus pain].” (Id.) Mr. Webers
performed an exam and found petitioner’s range of motion to be limited. (Id.) Mr.
Webers found that petitioner presented with signs and symptoms consistent with
adhesive capsulitis and recommended treatment every 10 days for four weeks with a
goal to increase petitioner’s range of motion. (Id.)

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Subsequently, petitioner was evaluated by orthopedist, Tracy Frombach, DO, on
April 27, 2016. Dr. Frombach recorded the following history,
patient is a 58-year-old female who in October received her flu shot. The
patient states that the day following her flu shot she had significant pain in
the left shoulder and had limited range of motion. The patient states that
she is unable to lift her arms above her head, but her strength close to the
body and lower than the shoulder is adequate.
(Id. at 109) Dr. Frombach’s exam found petitioner suffered limited range of motion and
mild tenderness through petitioner’s mid deltoid. (Id. at 110) Dr. Frombach assessed
petitioner’s injury as follows: “1. Adhesive capsulitis of the left shoulder following a flu
injection in October 2015. 2. Left rotator cuff syndrome.” (Id.) Dr. Frombach
administered a left subacromial injection to treat petitioner’s left shoulder and
recommended petitioner strictly adhere to her home exercise program through physical
therapy. (Id. at 110-111) Thereafter, petitioner continued to follow-up with Dr. Frombach
through October 2016 at which time Dr. Frombach noted in her history that “[t]his
started in October of 2015 and is resolving” and found specifically that petitioner’s “[l]eft
adhesive capsulitis [was] almost completely resolved.” (Ex. 4 at 44-45) Petitioner
continued to pursue physical therapy through at least March of 2017. (Ex. 13 at 33)
III. Party Contentions
In sum,6 petitioner argues she has satisfied the criteria, as detailed by Vaccine
Injury Table’s Qualifications and Aids to Interpretation (“QAI”), to establish a Table claim
for SIRVA. (ECF No. 28 at 16-20) Alternatively, petitioner argues that she has met the
burden for establishing entitlement to compensation in an “Off-Table” claim by
demonstrating the Althen v. HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005) criteria to
establish petitioner more likely than not suffered a SIRVA. (Id. at 24-26)
Respondent argues that petitioner’s contemporaneous records do not establish
that her injury manifested within a medically appropriate time frame. (ECF No. 27 at 6.)
Respondent argues that petitioner’s contemporaneous records indicate that petitioner’s
shoulder pain began approximately three to six months subsequent to her October 6,
2015 vaccination. (Id. at 7) Respondent asserts that the literature submitted by the
court establishes that most SIRVA injuries begin within two days, and all occur within
four days of vaccination. (Id. at 6) Accordingly, respondent argues petitioner’s claim
should be denied. (Id. at 7-10)
IV. Finding of Fact
The first issue to be addressed is when the onset of petitioner’s shoulder injury
occurred. Petitioner has the burden of demonstrating the facts necessary for
entitlement to an award by a “preponderance of the evidence.” § 300aa-12(a)(1)(A).
Under that standard, the existence of a fact must be shown to be “more probable than
6 The undersigned has fully reviewed and considered the parties’ briefing in this matter, however for the
purpose of brevity does not summarize and/or address each argument put forward.

Case 1:16-vv-01664-EDK Document 35 Filed 06/19/18 Page 7 of 12
its nonexistence.” In re Winship, 397 U.S. 358, 371 (1970) (Harlan, J., concurring). In
light of all of the above record evidence and for the reasons described below, the
undersigned finds that there is preponderant evidence that the onset of petitioner’s
alleged shoulder pain occurred within 48 hours of petitioner’s October 6, 2015 flu
vaccination.
As described above, petitioner’s medical records demonstrate that petitioner
repeatedly and consistently placed the onset of her condition within 48 hours of her
vaccination. Respondent argues that there is no corroborating evidence that petitioner
experienced the onset of symptoms during the six months after the vaccination and
before seeking treatment for her injury. (ECF No. 27 at 9) However, respondent
unreasonably dismisses petitioner’s contemporaneous treatment records since the
records were not created contemporaneously with the onset of petitioner’s shoulder
pain. (ECF No. 30 at 1-2) The fact that petitioner delayed seeking treatment for her
shoulder symptoms does not negate the value of her treatment records or render this
evidence not credible, although it may speak to the severity of her injury.7 The
undersigned does not find petitioner’s delay in treatment of nearly six months to be
dispositive regarding the question given the facts and circumstances of this case.
Three different health care providers documented consistently as to onset. The
first time petitioner sought medical treatment for her injury from her primary care
provider, Dr. Vandeloo on March 30, 2016, she placed the onset of her pain as since
her October 2015 flu shot. (Ex. 2 at 89) Her subsequent physical therapy evaluation by
physical therapist, Robert Webers on April 13, 2016 noted that “[patient] got a flu shot in
Oct. 2015, and since then she has had pain.” (Id. at 99) Petitioner again linked her
shoulder pain to her October 6, 2015 flu vaccination at her April 27, 2016 evaluation by
orthopedist, Dr. Frombach. Dr. Frombach noted “patient is a 58-year-old female who in
October received her flu shot. The patient states that the day following her flu shot she
had significant pain in the left shoulder and had limited range of motion.” (Id. at 109)
Additionally, the undersigned finds petitioner’s affidavits explaining her pattern of
treatment and reports to her physicians as reasonable and credible. See, e.g. Stevens
v. HHS, 90-221V, 1990 WL 608693, *3 (Cl. Ct. Spec. Mstr. 1990)(noting that clear
cogent, and consistent testimony can overcome missing or contradictory medical
records). Petitioner’s account is detailed, cogent and corroborates the statements she
made to her health care providers. Moreover, in the undersigned’s experience,
petitioner’s affidavits and medical records together reflect a pattern of treatment
consistent with and similar to many other SIRVA claims.8 Likewise, petitioner’s
affidavits are consistent with the affidavits filed from petitioner’s family members.
7 The undersigned further rejects respondent’s argument that her finding of onset in these circumstances
opens up the Vaccine Program to fraud and abuse. (ECF No. 27 at fn 6; ECF No. 30 at 1-2) The
undersigned has carefully reviewed all evidence filed in this matter and finds no evidence of fraud.
8 The undersigned disagrees with respondent’s characterization of petitioner’s affidavit as internally
inconsistent. (ECF No. 27 at 9-10) The undersigned finds that petitioner’s lack of awareness that a flu

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Respondent argues petitioner’s earlier visit to the ER on January 22, 2016, and
follow-up phone calls to Kaiser, establish that petitioner’s shoulder pain approximately
began three to six months subsequent to her October 6, 2015 flu vaccination. (ECF No.
27 at 7-9) In particular, respondent relies upon checkmarks next to “non-tender,” “nml
ROM,” and “no pedal edema” under the “extremities” portion of the physical exam
section of petitioner’s ER record (Ex. 3 at 2) as evidence that the onset of petitioner’s
injury did not commence until three to six months after the flu vaccine. (Id.) Given the
context of these records the undersigned disagrees with respondent’s assertion. The
undersigned notes that petitioner was seen at the ER on January 22, 2016 for a UTI
and kidney stones which are extremely painful conditions for which petitioner was
seeking urgent medical attention. Additionally, in the undersigned’s experience
thorough physical examinations are not conducted in the ER setting for issues beyond
or unrelated to the reason for the visit. The undersigned notes this is in contrast to a
general or physical examination conducted by a primary care physician or orthopedist.
The undersigned finds that petitioner’s subsequent phone calls to Kaiser on January 25
and 26, 2016 are clearly in follow-up to petitioner’s emergency room visit for her UTI
and kidney stones, and the description of lack of pain relates accordingly to those
issues, as opposed to a lack of pain in her left shoulder. Additionally, petitioner, her
husband, and son in their testimony by affidavit offer consistent, cogent, and reasonable
descriptions of the events leading to petitioner’s ER visit and the ER visit itself. (See
Ex. 14-16)
The undersigned finds that the affidavits submitted by and on behalf of petitioner
and the medical records work in tandem to provide preponderant evidence that
petitioner’s shoulder pain began within 48 hours of her October 6, 2015 flu vaccination.
V. Ruling on Entitlement
In light of the above finding of fact, the undersigned further finds that this case is
ripe for adjudication on the question of petitioner’s entitlement to compensation for her
alleged SIRVA. For the reasons described below, the undersigned finds that petitioner
is entitled to compensation.
a. Legal Standard
In this case, because petitioner’s claim predates the inclusion of SIRVA on the
Vaccine Injury Table,9 petitioner must prove her claim by showing that her injury was
“caused-in-fact” by the vaccination in question. § 300aa-13(a)(1)(B); § 300aa-
11(c)(1)(C)(ii). In such a situation, of course, the presumptions available under the
Vaccine Injury Table are inoperative. The burden is on the petitioner to introduce
vaccination can cause a sustained injury is not inconsistent with petitioner still believing or attributing her
left shoulder pain to her flu shot in the left shoulder.
9 Effective for petitions filed beginning on March 21, 2017, SIRVA is an injury listed on the Vaccine Injury
Table (“Table”). See National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury
Table, Final Rule, 82 Fed. Reg. 6294, Jan. 19, 2017 (codified at 42 CFR Part 100.3(c)); National Vaccine
Injury Compensation Program: Revisions to the Vaccine Injury Table, Delay of Effective Date, 82 Fed.
Reg. 11321, Feb. 22, 2017 (delaying the effective date of the final rule until March 21, 2017).

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evidence demonstrating that the vaccination actually caused the injury in question.
Althen v. HHS, 418 F.3d 1274, 1278 (Fed. Cir. 2005); Hines v. HHS, 940 F.2d 1518,
1525 (Fed. Cir. 1991). The showing of “causation-in-fact” must satisfy the
“preponderance of the evidence” standard, the same standard ordinarily used in tort
litigation. § 300aa-13(a)(1)(A); see also Althen, 418 F.3d at 1279; Hines, 940 F.2d at
1525. Under that standard, the petitioner must show that it is “more probable than not”
that the vaccination was the cause of the injury. Althen, 418 F.3d at 1279.
The petitioner need not show that the vaccination was the sole cause or even the
predominant cause of the injury or condition, but must demonstrate that the vaccination
was at least a “substantial factor” in causing the condition, and was a “but for” cause.
Shyface v. HHS, 165 F.3d 1344, 1352 (Fed. Cir. 1999).
Under the leading Althen test, petitioner must satisfy three elements. The Althen
court explained this “causation-in-fact” standard, as follows:
Concisely stated, Althen’s burden is to show by preponderant evidence
that the vaccination brought about her injury by providing: (1) a medical
theory causally connecting the vaccination and the injury; (2) a logical
sequence of cause and effect showing that the vaccination was the reason
for the injury; and (3) a showing of proximate temporal relationship
between vaccination and injury. If Althen satisfies this burden, she is
“entitled to recover unless the [government] shows, also by a
preponderance of the evidence, that the injury was in fact caused by
factors unrelated to the vaccine.”
Althen, 418 F.3d at 1278 (citations omitted). The Althen court noted that a petitioner
need not necessarily supply evidence from medical literature supporting petitioner’s
causation contention, so long as the petitioner supplies the medical opinion of an
expert. Id. at 1279-80. The court also indicated that, in finding causation, a Program
fact-finder may rely upon “circumstantial evidence,” which the court found to be
consistent with the “system created by Congress, in which close calls regarding
causation are resolved in favor of injured claimants.” Id. at 1280.
b. Analysis
The undersigned finds that petitioner satisfies the three prongs of Althen as
follows:
i. Althen Prong 1
Under Althen Prong One, there must be preponderant evidence of a medical
theory causally connecting petitioner’s vaccination to her injury. In satisfaction of Althen
Prong One, the undersigned takes judicial notice of the fact that respondent has added
SIRVA to the Vaccine Injury Table for the influenza vaccine. See 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

Case 1:16-vv-01664-EDK Document 35 Filed 06/19/18 Page 10 of 12
administration (SIRVA), Vaccine 28(51):8049-8052)10; see also Doe 21 v. HHS, 88 Fed.
Cl. 178 (July 30, 2009), rev’d on other grounds, 527 Fed. Appx. 875 (Fed. Cir.
2013)(holding that recognition of a link between vaccine and injury on the Vaccine Injury
Table supports petitioner’s burden under Althen Prong One.)
In any event, although it is petitioner’s burden to establish all Althen prongs by
preponderant evidence, respondent has not disputed that the flu vaccine can cause
SIRVA. In that regard, it is worth noting that there is a well-established track record of
awards of compensation for SIRVA being made on a cause-in-fact basis in this
program. See, e.g. Loeding v. HHS, No. 15-740V, 2015 WL 7253760 (Fed. Cl. Spec.
Mstr. Oct. 15, 2015)(noting that “respondent ‘has concluded that petitioner’s injury is
consistent with SIRVA; that a preponderance of evidence establishes that her SIRVA
was caused in fact by the flu vaccination she received on October 14, 2014; and that no
other causes for petitioner’s SIRVA were identified.”); see also Johnson v. HHS, No. 16-
165V, 2016 WL 3092002 (Fed. Cl. Spec. Mstr. April 13, 2016)(awarding compensation
for a SIRVA caused-in-fact by the influenza vaccine); Koenig v. HHS, No. 16-1496V,
2017 WL6206391 (Fed. Cl. Spec. Mstr. April 13, 2017)(same). Moreover, respondent
has conceded causation in many prior Hep A-caused SIRVA cases in particular. See,
e.g. Telonidis v. HHS, No. 15-450V, 2015 WL 5724746 (Fed. Cl. Spec. Mstr. Sept. 2,
2015); Salas v. HHS, No. 16-739V, 2016 WL 8459834 (Fed. Cl. Spec. Mstr. Nov. 7,
2016).
ii. Althen Prong 2
Under Althen Prong Two, petitioner must demonstrate a logical sequence of
cause and effect showing that the vaccination was the reason for the injury. Although
petitioner’s claim does not constitute a Table Injury, the undersigned finds the QAI
criteria for SIRVA to be persuasive regarding the factors necessary to demonstrate a
logical sequence of cause and effect. The criteria under the QAI are as follows:
Shoulder Injury Related to Vaccine Administration (SIRVA). SIRVA
manifests as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of
unintended injection of vaccine antigen or trauma from the needle into and
around the underlying bursa of the shoulder resulting in an inflammatory
reaction. SIRVA is caused by an injury to the musculoskeletal structures of
the shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a
neurological injury and abnormalities on neurological examination or nerve
conduction studies (NCS) and/or electromyographic (EMG) studies would
not support SIRVA as a diagnosis (even if the condition causing the
neurological abnormality is not known). A vaccine recipient shall be
considered to have suffered SIRVA if such recipient manifests all of the
following:
10 Codified at 42 CFR Part 100.3(c).

Case 1:16-vv-01664-EDK Document 35 Filed 06/19/18 Page 11 of 12
(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).
42 CFR Part 100.3(c)(10) (Qualifications and Aids to Interpretation for SIRVA).
In light of the factual history described above, the undersigned finds that all four
of the criteria listed in the QAI for SIRVA are satisfied by preponderant evidence.
Based on petitioner’s medical records and affidavit, prior to petitioner’s flu
vaccination October 6, 2015 she had no history of pain, or other signs or symptoms in
her left shoulder consistent with SIRVA. The undersigned further notes that respondent
has not alleged that petitioner had any symptoms of SIRVA prior to her October 6, 2015
flu vaccine.
Additionally, petitioner’s post-vaccination medical records reveal no other
proffered explanation for her injury and her diagnostic evaluations are significant for
findings consistent with a SIRVA injury, including limited range of motion (Id. at 90-91,
99, 110) and a diagnosis of adhesive capsulitis (Id. at 90-91, 99, 110).
As discussed above, based upon petitioner’s medical records and affidavits, the
undersigned finds petitioner’s onset of her shoulder injury is within the specified time
frame of < 48 hours. The undersigned finds petitioner offers a reasonable and
persuasive explanation in her affidavits for her delay in reporting her shoulder injury,
and finds persuasive petitioner’s reports to both Drs. Vandeloo and Frombach, as well
as physical therapist, Mr. Webers regarding the onset of her shoulder pain. The
undersigned further finds that petitioner offers a reasonable and cogent explanation of
the limited nature of her examination at the ER on January 22, 2016 and the nature of
her follow-up phone calls with Kaiser.
For all these reasons, the undersigned finds that petitioner has presented
preponderant evidence pursuant to Althen Prong Two of a logical sequence of cause
and effect showing that her injury was vaccine-caused.
iii. Althen Prong 3

Case 1:16-vv-01664-EDK Document 35 Filed 06/19/18 Page 12 of 12
Under Althen Prong Three, there must be a proximate temporal relationship
between vaccination and injury. Respondent asserts that the relevant, medically
accepted, timeframe for onset of a SIRVA injury based upon the literature submitted by
the undersigned is within 4 days of vaccination. (ECF No. 27 at 6) Thus, in light of the
above finding of fact that petitioner’s shoulder pain began within 48 hours of her
October 6, 2015 flu vaccination, petitioner has satisfied Althen Prong Three.
iv. Factors Unrelated to Vaccination
Respondent has not asserted, nor has the undersigned identified any factor
unrelated to petitioner’s vaccination which would meet respondent’s burden of
establishing an alternative cause for petitioner’s injury unrelated to vaccination.
VI. Conclusion
Thus, for all the foregoing reasons, the undersigned finds petitioner’s has
established by preponderant evidence that her October 6, 2015 flu vaccination was the
cause-in-fact of her SIRVA. Accordingly, the undersigned DENIES respondent’s
request for a ruling denying compensation (ECF No. 27 at 10) and GRANTS petitioner’s
motion for a finding that petitioner is entitled to compensation for SIRVA (ECF No. 28 at
26).
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_16-vv-01664-1
Date issued/filed: 2019-01-09
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 11/19/2018) regarding 51 DECISION Stipulation/Proffer ( Signed by Chief Special Master Nora Beth Dorsey. )(mpj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-01664-EDK Document 54 Filed 01/09/19 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-1664V
Filed: November 19, 2018
UNPUBLISHED
KELLI TENNESON,
Petitioner,
Special Processing Unit (SPU);
v.
Damages Decision Based on Proffer;
Influenza (Flu) Vaccine; Shoulder
SECRETARY OF HEALTH AND
Injury Related to Vaccine
HUMAN SERVICES,
Administration (SIRVA)
Respondent.
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION AWARDING DAMAGES1
Dorsey, Chief Special Master:
On December 20, 2016, 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”) as a result of her October 6, 2015 influenza (“flu”)
vaccination. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
On March 30, 2018, a ruling on entitlement was issued, finding petitioner entitled
to compensation for SIRVA. On November 16, 2018, respondent filed a proffer on
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, 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).

Case 1:16-vv-01664-EDK Document 54 Filed 01/09/19 Page 2 of 4
award of compensation (“Proffer”) indicating petitioner should be awarded $$88,017.82
(comprised of $85,000.00 in past and future pain and suffering and $3,017.82 in
unreimbursable expenses). Proffer at 1. In the Proffer, respondent represented that
petitioner agrees with the proffered award. Based on the record as a whole, the
undersigned finds that petitioner is entitled to an award as stated in the Proffer. Id.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $$88,017.82 (comprised of $85,000.00 in past
and future pain and suffering and $3,017.82 in unreimbursable expenses) in the
form of a check payable to petitioner, Kelli Tenneson. This amount represents
compensation for all damages that would be available under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2

Case 1:16-vv-01664-EDK Document 54 Filed 01/09/19 Page 3 of 4
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
KELLI TENNESON, )
)
Petitioner, ) No. 16-1664V
) Chief Special Master Dorsey
v. ) ECF
)
SECRETARY OF HEALTH )
AND HUMAN SERVICES, )
)
Respondent. )
)
PROFFER ON AWARD OF COMPENSATION
I. Compensation for Vaccine Injury-Related Items
On March 30, 2018, the Chief Special Master issued a Ruling on Entitlement,
concluding that petitioner is entitled to compensation under the National Childhood
Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-1 to -34.
Respondent proffers that, based on the Chief Special Master’s entitlement decision
and the evidence of record, petitioner should be awarded $88,017.82 (comprised of
$85,000.00 in past and future pain and suffering and $3,017.82 in unreimbursable
expenses).1 This amount represents all elements of compensation to which petitioner
would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.
1 The parties have no objection to the amount of the proffered award of damages.
Assuming the Chief Special Master issues a damages decision in conformity with this
proffer, the parties waive their right to seek review of such damages decision. However,
respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the
Special Master’s March 30, 2018, entitlement decision.

Case 1:16-vv-01664-EDK Document 54 Filed 01/09/19 Page 4 of 4
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be
made as a lump sum payment of $88,017.82, in the form of a check payable to
petitioner.2 This amount accounts for all elements of compensation under 42 U.S.C.
§ 300aa-15(a) to which petitioner would be entitled.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
/s/ Daniel A. Principato
DANIEL A. PRINCIPATO
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Phone: (202) 616-3662
Fax: (202) 353-2988
Dated: November 16, 2018
2 Should petitioner die prior to entry of judgment, the parties reserve the right to move
the Court for appropriate relief. In particular, respondent would oppose any award for
future medical expenses, future pain and suffering, and future lost wages.
2

================================================================================
DOCUMENT 3: USCOURTS-cofc-1_16-vv-01664-2
Date issued/filed: 2019-03-18
Pages: 13
Docket text: PUBLIC DECISION of 58 Opinion and Order on Motion for Review (originally filed under seal on 2/28/2019). Signed by Judge Elaine D. Kaplan. (feb) Service on parties made.
--------------------------------------------------------------------------------
Case 1:16-vv-01664-EDK Document 60 Filed 03/18/19 Page 1 of 13
In the United States Court of Federal Claims
No. 16-1664V
(Filed Under Seal: February 28, 2019 | Reissued: March 18, 2019)∗
)
KELLI TENNESON, ) Keywords: Motion for Review; Vaccine
) Act; Contemporaneous Medical Records;
Petitioner, ) Shoulder Injury Related to Vaccine
) Administration (SIRVA)
v. )
)
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
Ronald C. Homer and Meredith Daniels, Conway Homer, P.C., Boston, MA, for Petitioner.
Daniel A. Principato, Trial Attorney, Torts Branch, Civil Division, U.S. Department of Justice,
Washington, DC, with whom were Alexis B. Babcock, Assistant Director, Catharine E. Reeves,
Deputy Director, C. Salvatore D’Alessio, Acting Director, and Joseph H. Hunt, Assistant
Attorney General, for Respondent.
OPINION AND ORDER
KAPLAN, Judge.
The Secretary of Health and Human Services (“the HHS Secretary” or “the Secretary”)
seeks review of the ruling of Chief Special Master Nora B. Dorsey finding Petitioner Kelli
Tenneson entitled to compensation under the National Vaccine Injury Compensation Program,
42 U.S.C. §§ 300aa-10 et seq. (“the Vaccine Act”). Specifically, the Secretary challenges as
arbitrary, capricious, and contrary to law the Chief Special Master’s factual finding that Ms.
Tenneson suffered a shoulder injury within forty-eight hours of receiving a flu vaccination.
For the reasons that follow, the Court finds the Secretary’s arguments unpersuasive. The
Secretary’s motion for review is therefore DENIED.
∗ This opinion was previously issued under seal on February 28, 2019. The parties were given
the opportunity to propose redactions on or before March 14, 2019. Because the parties have not
filed proposed redactions, the Court reissues its decision in its entirety.

Case 1:16-vv-01664-EDK Document 60 Filed 03/18/19 Page 2 of 13
BACKGROUND
I. The Evidence Before the Chief Special Master
On October 6, 2015, Kelli Tenneson, who was then fifty-eight years old, received an
intramuscular flu vaccination from her primary care provider, Kaiser Permanente-Colorado.
Pet’r’s Ex. 1, at 1, ECF No. 7-2. According to an affidavit she executed in connection with this
litigation, the vaccination was administered “very high up on [her] left arm, almost at [her]
shoulder.” Pet’r’s Ex. 6, ¶ 2, ECF No. 8-1.
Ms. Tenneson asserts that the day after she received the vaccination, she woke up with
extreme pain in her shoulder, which “started in the exact area where the shot was given.” Id. ¶ 3.
By the end of that evening, she states, she experienced “sharp pains all the way down [her] left
arm.” Id.
Although she alleges that she continued to experience shoulder pain in the months that
followed, Ms. Tenneson did not seek medical care for her shoulder until January 2016 and did
not actually see a physician for the injury until the end of March 2016. Id. ¶¶ 4–6. The central
issue raised by the Secretary’s request for review is whether, in light of that delay, it was
arbitrary, capricious, and contrary to law for the Chief Special Master to credit Ms. Tenneson’s
testimony that her shoulder injury manifested itself within forty-eight hours of her October 6,
2015 vaccination.
Ms. Tenneson explained in her affidavit that she decided to “wait it out” rather than
seeking medical care immediately because she is “not one who easily goes to the doctor” and
because she “had never heard of a flu vaccine causing this type of sustained pain.” Id. ¶¶ 3–4.
Ms. Tenneson’s husband, Michael Tenneson, as well as her son, Josh, provided supporting
affidavits concerning the effects of the vaccination. Pet’r’s Ex. 8, 9, ECF Nos. 8-3, 8-4. Michael
Tenneson stated that his wife had complained of severe pain the day after she received her flu
shot and that she “could not lift her left arm above her shoulder without being in pain.” Pet’r’s
Ex. 8, ¶ 1. According to Mr. Tenneson, in the days and months that followed, “the pain in her left
upper arm still remained without any mobility above the shoulder.” Id. ¶ 2. He stated that “on
numerous occasions while lying in bed at night, I heard her moan while she moved around in
bed, trying to find a comfortable position to somewhat alleviate her pain.” Id. “On several
occasions,” according to Mr. Tenneson, Ms. Tenneson’s pain kept them both awake. Id.
Similarly, Josh Tenneson testified by affidavit that, beginning in late October 2015, he
noticed that his mother, who babysat his infant daughter four days a week, was for the first time
having difficulties lifting things above her head and lifting the baby. Pet’r’s Ex. 9, ¶¶ 1–2. He
further testified that when he asked his mother if something was wrong, “she mentioned that she
had been unable to lift her arm above her head since the vaccination” but that “[n]either of us
thought much of it at the time and assumed the symptoms would dissipate.” Id.
On December 17, 2015, Ms. Tenneson called Kaiser to request a letter of good health.
Pet’r’s Ex. 14, ¶ 2, ECF No. 21-1. The letter, which state law requires all employees of
preschools to submit to their employer, is a one-page document affirming that the employee had
been examined within the past year, that she had no communicable diseases, and that she was
2

Case 1:16-vv-01664-EDK Document 60 Filed 03/18/19 Page 3 of 13
able to work with children. Id. ¶¶ 2–3; see also Pet’r’s Ex. 2, at 78, ECF No. 7-3 (call record
reflecting a request by Ms. Tenneson for a “letter stating she has been seen within the last year
and is in good health”). According to Ms. Tenneson, her primary care physician signed the form
based on the prior year’s physical exam, which had taken place several months before she
received the influenza vaccination. Pet’r’s Ex. 14, ¶ 4.
Ms. Tenneson’s sister-in-law testified by affidavit that as the family gathered for
Christmas in 2015 she was “very surprised to see that not only was [Ms. Tenneson’s] arm not
any better, but it actually seemed to be worse.” Pet’r’s Ex. 11, ¶ 4, ECF No. 10-2. Ms. Tenneson
nonetheless “continued to tough it out” until January 2016, when she scheduled a March 30
appointment to see her primary care doctor about the shoulder pain. Pet’r’s Ex. 14, ¶ 5; see also
Ruling on Entitlement (“CSM Dec.”) at 4, ECF No. 31.
In the meantime, on the morning of January 22, 2016, Ms. Tenneson called Kaiser
complaining of blood in her urine and pressure “in [her] lower extremities,” which she had been
experiencing for the preceding two days. Pet’r’s Ex. 14, ¶ 6; Pet’r’s Ex. 2, at 80. The nurse who
took her call listed her “chief complaint” as a “UTI” (urinary tract infection). Pet’r’s Ex. 2, at 80.
Later that day, Ms. Tenneson and her family left for a trip to the mountains. While
traveling, Ms. Tenneson asserts, she experienced “excruciating low back pain.” Pet’r’s Ex. 14,
¶ 6. After the family arrived at their destination, Ms. Tenneson reported to an emergency room at
Middle Park Medical Center, which she characterizes as a “small mountain hospital” in a “small
ski town in Colorado.” Id. ¶ 7. Hospital records indicate that she complained of severe right
flank/abdominal pain, low back pain, blood in her urine, discomfort with urination, nausea, and
vomiting. Pet’r’s Ex. 3, at 1, ECF No. 7-4.
The physical exam section of the emergency room report includes a heading entitled
“extremities.” The following terms were checked off: “non-tender,” “nrml ROM [range of
motion],” and “no pedal edema.” Id. at 2.
Ms. Tenneson asserts that she remained at the emergency room for several hours but
“only saw the doctor for approximately 2–3 minutes.” Pet’r’s Ex. 14, ¶ 7. She also states that
although her shoulder was painful during the visit, her abdominal pain was worse. Id. ¶ 8.
Ms. Tenneson was diagnosed with a kidney stone. Id. Despite the notations in the
extremities section of the emergency room report, Ms. Tenneson testifies that she “was never
given an exam of [her] upper extremities, and specifically, [her] left shoulder was never tested
for tenderness or range of motion.” Id. ¶ 9. Furthermore, she states that when she was preparing
to undergo a CT scan, she informed the technician that she had been unable to raise her hands
above her head after having received a flu shot several months prior. Id. ¶ 10. This alleged
comment is not reflected in the accompanying records. Ms. Tenneson’s husband and son, who
were with her during her visit to the emergency room, submitted supplemental affidavits that are
generally consistent with Ms. Tenneson’s recollection. See generally Pet’r’s Ex. 15, 16, ECF
Nos. 21-2, 21-3.
After she was released from the emergency room, Ms. Tenneson had two follow-up
phone calls with Kaiser. The first was with a nurse on January 25, and the second was with her
3

Case 1:16-vv-01664-EDK Document 60 Filed 03/18/19 Page 4 of 13
primary care physician, Dr. Deja Vandeloo, on January 26. Pet’r’s Ex. 2, at 84–85. In a summary
of these calls, Dr. Vandeloo noted that pain medication was not then-needed because Ms.
Tenneson was feeling better and that the kidney stone should pass within two weeks. Id. at 85.
There is no mention of shoulder pain complaints in the call summaries.
On March 30, 2016, Ms. Tenneson kept the appointment that she had made in January to
address her shoulder pain. Id. at 86. Medical records documenting the visit contain the notation
“left arm pain since flu shot 10/15, pain all the way down arm. Can barely move arm now. Just
hasn’t gotten better. Wake her up at night. Does watch her grand-baby and can lift her but hard
time getting seatbelt, etc.” Id. at 89. Dr. Vandeloo conducted a musculoskeletal evaluation which
confirmed Ms. Tenneson’s complaints. She found “limited ROM left shoulder—can only
abduct/extend to approx 80-90 degrees and can only get a few more degrees passively.” Id. at 90.
Dr. Vandeloo diagnosed Ms. Tenneson with adhesive capsulitis of the left shoulder. Id. at
91. She advised Ms. Tenneson to take over-the-counter pain medications and perform a series of
stretching exercises. Id. Ms. Tenneson was also given a referral for physical therapy and an
orthopedist. Id. Dr. Vandeloo’s referral to the orthopedist noted “left shoulder problem: frozen
shoulder—[patient] has had pain ever since flu shot 10/15 [with] no injury. Worsening ROM
over last 5 months.” Id. at 89.
Records summarizing the March visit indicate that Dr. Vandeloo discussed Ms.
Tenneson’s injury with “shot line,” which the Court understands to be a telephone service that
provides advice to health care workers about vaccines and their administration. Id. at 91; see also
Pamela K. Strohfus, Sharon R. Brown & Paige Potratz, Effective and Sustainable Advice Line
Promotes Safe Vaccine Practices, 14 Int’l J. of Evidence-Based Healthcare 130 (2016),
https://scholarworks.boisestate.edu/nursing_facpubs/174/. According to Dr. Vandeloo’s notes,
she was advised by “shot line” that the injury was “not due to [the] vaccine but they can’t
comment on administration.” Pet’r’s Ex. 2, at 91. Dr. Vandeloo also apparently consulted with
an orthopedist who “felt [it] unlikely [that] this is all related to flu shot” but who acknowledged
that Ms. Tenneson “certainly could have developed a frozen shoulder if she hasn’t moved it x 5
mo” since the flu vaccination. Id. at 91, 97.
Ms. Tenneson met with Robert L. Webers, a physical therapist, on April 13, 2016. Id. at
99. Mr. Webers noted that Ms. Tenneson “got flu shot in [] Oct 2015, [and] since then she has
had pain.” Id. During the appointment, Ms. Tenneson advised Mr. Webers that her sleep was
“disturbed” and that her pain level was “6/10.” Id. Mr. Webers opined that her symptoms were
“consist[e]nt with Adhesive capsulitis.” Id. at 100. He recommended that Ms. Tenneson continue
treatment every ten days for four weeks to increase her range of motion. Id.
A few weeks later, on April 27, 2016, Ms. Tenneson was examined by Dr. Tracy
Frombach, an orthopedist. Id. at 105. Dr. Frombach noted “5 months left shoulder pain since flu
shot 10/15 . . . [v]ery limited [range of motion]” and “[m]ild degenerative changes [in her] left
shoulder.” Id. at 107–08. Dr. Frombach described Ms. Tenneson’s conditions as “Adhesive
capsulitis of the left shoulder shortly following a flu injection in October 2015” and “[l]eft
rotator cuff syndrome.” Id. at 110. During the visit, Ms. Tenneson received a left subacromial
injection after which her “range of motion was pain free” but still limited. Id. Dr. Frombach
4

Case 1:16-vv-01664-EDK Document 60 Filed 03/18/19 Page 5 of 13
advised Ms. Tenneson to continue with physical therapy and to follow up in six weeks. Id. at
111.
According to Dr. Frombach, Ms. Tenneson’s adhesive capsulitis was “almost completely
resolved” by October 2016. Pet’r’s Ex. 4, at 45, ECF No. 7-5. Ms. Tenneson continued physical
therapy through at least March 2017. See Pet’r’s Ex. 13, at 33, ECF No. 16-2.
II. The Vaccine Claim
On December 20, 2016, Ms. Tenneson filed a petition for compensation under the
Vaccine Act. She alleged that the flu vaccination she had received on October 6, 2015 had
caused a shoulder injury. Pet. for Vaccine Compensation at 1, ECF No. 1. Her case was assigned
to the Chief Special Master the next day for evaluation by the Special Processing Unit. See ECF
Nos. 4, 5.
On June 19, 2017, the HHS Secretary filed a Rule 4(c) report opposing Ms. Tenneson’s
claim. See generally Resp’t’s Rule 4(c) Report, ECF No. 18. The Secretary argued that Ms.
Tenneson had not established that the onset of her symptoms occurred within forty-eight hours of
her vaccination, which is the time period that the relevant medical literature establishes for most
vaccine-related shoulder injuries. Id. at 5. To the contrary, according to the Secretary, the
contemporaneous medical records indicated that her shoulder pain began some three to six
months after the vaccination. Id.
In a July 26, 2017 scheduling order, the Chief Special Master observed that based on the
record before her, it appeared that Ms. Tenneson’s claim “generally meets the requirements for
SIRVA [(shoulder injury related to vaccine administration)].” Scheduling Order at 1, ECF No.
19. She further noted that “petitioner’s affidavit together with the records evidence onset within
48 hours of petitioner’s vaccination.” Id. The Chief Special Master further stated that she did not
“believe this [was] a claim that should to go to hearing,” but that it rather “should be resolved for
a reasonable amount.” Id. She further “encourage[d] [Ms. Tenneson] to make a reasonable
demand upon [the Secretary].” Id.
In a status report filed on October 2, 2017 the Secretary stated his intent to oppose Ms.
Tenneson’s claim and conveyed his unwillingness to engage in settlement discussions. Status
Report at 1, ECF No. 25. At a status conference held on October 18, 2017, the Chief Special
Master gave Ms. Tenneson the option of requesting a fact hearing or a ruling on the record; Ms.
Tenneson elected the latter. See Scheduling Order at 1, ECF No. 26. Counsel for the government
did not object to having the case decided on the record, stating instead that “he would defer to
petitioner on how to proceed” and indicating that he was “amenable” to disposition on the record
without a hearing. Id.
The Chief Special Master gave the parties thirty days to file additional evidence. Id. at 2.
In addition, the parties were advised that the record would include two medical journal articles
that concern shoulder injuries caused by vaccinations. Id. at 1; see also S. Atanasoff, Shoulder
injury related to vaccine administration (SIRVA), 28 Vaccine 8049 (2010) (entered into the
record as Court Ex. I, ECF No. 26-1); Marko Bodor & Enoch Montalvo, Vaccination-related
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shoulder dysfunction, 25 Vaccine 585 (2007) (entered into the record as Court Ex. II, ECF No.
26-2).
III. The Chief Special Master’s Decision
On March 30, 2018, the Chief Special Master issued a decision holding that Ms.
Tenneson was entitled to compensation under the Vaccine Act. CSM Dec. at 12. She found that
“the affidavits submitted by and on behalf of petitioner and the medical records work in tandem
to provide preponderant evidence that petitioner’s shoulder pain began within 48 hours of her
October 6, 2015 flu vaccination.” Id. at 8. The Chief Special Master declined the government’s
invitation to infer that Ms. Tenneson’s account of the onset of her injury was unreliable because
she waited several months to seek medical treatment. Id. at 7. The Chief Special Master
concluded that the delay in seeking treatment was more relevant to the severity of the shoulder
injury than to the date it began. Id. She reasoned that “[p]etitioner’s account is detailed, cogent
and corroborates the statements she made to her health care providers.” Id. “Moreover,” the
Chief Special Master observed, in her experience, “petitioner’s affidavits and medical records
together reflect a pattern of treatment consistent with and similar to many other SIRVA claims.”
Id.
The Chief Special Master applied, and found satisfied, the three-prong test for
establishing causation set forth in Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274,
1278 (Fed. Cir. 2005). The Chief Special Master took judicial notice of the fact that HHS added
SIRVA to the Vaccine Injury Table for the influenza vaccine effective March 21, 2017, after Ms.
Tenneson filed her claim. CSM Dec. at 9. Based on that designation, the Chief Special Master
found that prong one of the Althen test—which requires preponderant evidence of a medical
theory causally connecting the flu vaccine to SIRVA—was met. Id. at 9–10; see also Althen, 418
F.3d at 1278. The Chief Special Master further concluded that there was a logical sequence of
cause and effect between the vaccination and Ms. Tenneson’s shoulder injury (prong two of the
Althen test) based on an application of the Qualifications and Aids to Interpretation (“QAI”) for
SIRVA codified at 42 U.S.C. § 100.3(c)(10). CSM Dec. at 10–11.1 Finally, the Chief Special
1 That provision states in pertinent part that:
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
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Master found that the third prong of the Althen test—requiring a proximate temporal relationship
between the vaccine and injury—was satisfied based on her factual finding that the onset of Ms.
Tenneson’s SIRVA pain (the morning after she was vaccinated) fell within the two-day period
that HHS recognizes as the relevant medically accepted timeframe for such onset. Id. at 12; see
also Althen, 418 F.3d at 1278.
Having found Ms. Tenneson entitled to compensation, the Chief Special Master
instructed the parties to confer to discuss damages. Damages Order at 1, ECF No. 32. After
several months of discussion, the Secretary filed a proffer of award on November 16, 2018,
recommending a lump-sum payment of $88,017.82. Proffer on Award of Compensation at 1,
ECF No. 50. The Chief Special Master accepted the recommendation and issued an order
awarding damages in that amount to Ms. Tenneson on November 19, 2018. See Dec. Awarding
Damages at 2, ECF No. 51.
IV. The Government’s Motion for Review
On December 18, 2018, the Secretary filed the present motion for review which requests
that the Court reverse the Chief Special Master’s ruling on entitlement. See generally Resp’t’s
Mot. for Review (“Resp’t’s Mot.”), ECF No. 52. The Secretary advances two interrelated
arguments in support of his motion. First, he argues that the Chief Special Master’s ruling
contravenes 42 U.S.C. § 300aa-13(a)(1), which prohibits a special master from finding a
petitioner entitled to compensation “based on the claims of a petitioner alone, unsubstantiated by
medical records or by medical opinion.” Second, he argues, the Chief Special Master’s factual
finding as to the onset date of Ms. Tenneson’s shoulder injuries was arbitrary and capricious
because the Chief Special Master credited Ms. Tenneson’s testimony, notwithstanding its alleged
inconsistency with certain contemporaneous medical records (i.e., the notes concerning Ms.
Tenneson’s calls to her primary care physician in December 2015 and January 2016, and the
record of her emergency room visit in January 2016).
For the reasons set forth below, the Court concludes that the Secretary’s arguments lack
merit. Accordingly, the motion for review is DENIED and the Chief Special Master’s ruling on
entitlement is SUSTAINED.2
DISCUSSION
I. Jurisdiction
Congress established the National Vaccine Injury Compensation Program in 1986 to
provide a no-fault compensation system for vaccine-related injuries and deaths. Figueroa v.
(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).
2 The Court has determined that oral argument is unnecessary in this case. Accordingly, its
decision is based on the record, the Chief Special Master’s ruling on entitlement, and the parties’
briefs.
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Sec’y of Health & Human Servs., 715 F.3d 1314, 1316–17 (Fed. Cir. 2013). The Vaccine Act is
remedial legislation that should be construed in a manner effectuating its underlying spirit and
purpose. Id. at 1317.
To secure compensation under the Vaccine Act, a petitioner must prove by a
preponderance of the evidence that the injury at issue was caused by a vaccine. See 42 U.S.C.
§§ 300aa-11(c)(1), -13(a)(1)(A). Where a petitioner sustains an injury in association with a
vaccine listed in the Vaccine Injury Table, causation is presumed. Broekelschen v. Sec’y of
Health & Human Servs., 618 F.3d 1339, 1341–42 (Fed. Cir. 2010) (citing 42 U.S.C. § 300aa-
11(c)(1)(C)(i); Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1374 (Fed. Cir.
2009)). Where, as in this case, the injury is not listed in the Table, the petitioner must prove
causation-in-fact. Broekelschen, 618 F.3d at 1342 (citing Moberly ex rel. Moberly v. Sec’y of
Health & Human Servs., 592 F.3d 1315, 1321 (Fed. Cir. 2010)). To discharge that burden, “a
petitioner must show that the vaccine was ‘not only a but-for cause of the injury but also a
substantial factor in bringing about the injury.’” Stone v. Sec’y of Health & Human Servs., 676
F.3d 1373, 1379 (Fed. Cir. 2012) (quoting Shyface v. Sec’y of Health & Human Servs., 165 F.3d
1344, 1352–53 (Fed. Cir. 1999)). “Once the petitioner has demonstrated causation, she is entitled
to compensation unless the government can show by a preponderance of the evidence that the
injury is due to factors unrelated to the vaccine.” Broekelschen, 618 F.3d at 1342 (citing Doe v.
Sec’y of Health & Human Servs., 601 F.3d 1349, 1351 (Fed. Cir. 2010); 42 U.S.C. § 300aa-
13(a)(1)(B)).
A petition seeking compensation under the Vaccine Act is filed in the Court of Federal
Claims, after which the Clerk of Court forwards it to the Chief Special Master for assignment to
a special master. 42 U.S.C. § 300aa-11(a)(1). The special master to whom the petition is assigned
“issue[s] a decision on such petition with respect to whether compensation is to be provided
under the [Vaccine Act] Program and the amount of such compensation.” Id. § 300aa-
12(d)(3)(A). That decision is subject to review in the Court of Federal Claims and in the Court of
Appeals for the Federal Circuit. Mahaffey v. Sec’y of Health & Human Servs., 368 F.3d 1378,
1383 (Fed. Cir. 2004) (citing 42 U.S.C. § 300aa-12(d)(3)(A)).
II. Standard of Review
The Vaccine Act grants the Court of Federal Claims jurisdiction to review the record of
the proceedings before a special master, and authority, upon such review, to:
(A) uphold the findings of fact and conclusions of law of the special master and
sustain the special master’s decision,
(B) set aside any findings of fact or conclusion of law of the special master found
to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with
the court’s direction.
Id. § 300aa-12(e)(2); see also Vaccine Rule 27.
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On review of the special master’s decision, the Court applies the arbitrary and capricious
standard to factual findings and the “not in accordance with law” standard to legal rulings.
Moberly, 592 F.3d at 1321. “The arbitrary and capricious standard of review is difficult for an
appellant to satisfy with respect to any issue, but particularly with respect to an issue that turns
on the weighing of evidence by the trier of fact.” Lampe v. Sec’y of Health & Human Servs., 219
F.3d 1357, 1360 (Fed. Cir. 2000). The Court “do[es] not reweigh the factual evidence, assess
whether the special master correctly evaluated the evidence, or examine the probative value of
the evidence or the credibility of the witnesses,” because those “are all matters within the
purview of the fact finder.” Porter v. Sec’y of Health & Human Servs., 663 F.3d 1242, 1249
(Fed. Cir. 2011) (citing Broekelschen, 618 F.3d at 1349). “[A]s long as a special master’s finding
of fact is ‘based on evidence in the record that [is] not wholly implausible,’” the Court must
uphold it. Id. (quoting Cedillo v. Sec’y of Health & Human Servs., 617 F.3d 1328, 1338 (Fed.
Cir. 2010) (alteration in original)). “[T]he standard of review is uniquely deferential” to special
masters’ decisions. Milik v. Sec’y of Health & Human Servs., 822 F.3d 1367, 1376 (Fed. Cir.
2016) (quoting Hodges v. Sec’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1993)).
“If the special master ‘has considered the relevant evidence of record, drawn plausible inferences
and articulated a rational basis for the decision,’ then reversible error is ‘extremely difficult to
demonstrate.’” Id. (quoting Hines v. Sec’y of Health & Human Servs., 940 F.2d 1518, 1528
(Fed. Cir. 1991)).
III. The Secretary’s Arguments
As noted above, the Secretary challenges the Chief Special Master’s decision on two
interrelated grounds. First, he argues that the Chief Special Master found that Ms. Tenneson’s
shoulder injury manifested itself within forty-eight hours of her vaccination based solely on her
testimony and that of her family, and “unsubstantiated by medical records or medical opinions.”
Resp’t’s Mot. at 1–2 (citing 42 U.S.C. § 300aa-13(a)). This finding, according to the Secretary,
contravened “the express terms of the Vaccine Act,” specifically 42 U.S.C. § 300aa-13(b)(2). Id.
at 8–9. Second, he argues that, in any event, the Chief Special Master’s onset determination was
arbitrary and capricious because: 1) she gave undue weight to Ms. Tenneson’s affidavits, which
he alleges were inconsistent with the contemporaneous medical records; and 2) she improperly
relied upon her own personal experience (rather than record evidence) in determining the weight
to be given to the records of Ms. Tenneson’s emergency room visit. Id. at 14–17.
For the reasons set forth below, the Secretary’s legal argument lacks merit. Further, the
Secretary has failed to persuade the Court to second guess the Chief Special Master’s factual
finding regarding the onset date of Ms. Tenneson’s shoulder injury. That finding must be upheld
because it is based on reasonable inferences that the Chief Special Master drew from all of the
evidence in the record, informed by her significant experience adjudicating similar cases under
the Vaccine Program.
A. The Secretary’s Argument That the Chief Special Master’s Decision Violates 42
U.S.C. § 300aa-13(a)(1)
The Secretary’s first argument, as noted above, is that the Chief Special Master’s
decision contravenes 42 U.S.C. § 300aa-13(a)(1). That provision states that a petitioner is
entitled to compensation where the special master finds that she has demonstrated by
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preponderant evidence “the matters required in the petition by section 300aa–11(c)(1) of [Title
42]” and “that there is not a preponderance of the evidence that the illness, disability, injury,
condition, or death described in the petition is due to factors unrelated to the administration of
the vaccine described in the petition.” 42 U.S.C. § 300aa-13(a)(1)(A)–(B). The provision further
states that “[t]he special master or court may not make such a finding based on the claims of a
petitioner alone, unsubstantiated by medical records or by medical opinion.” 42 U.S.C. § 300aa-
13(a)(1). According to the Secretary, it is this prohibition that the Chief Special Master violated
by allegedly relying entirely upon Ms. Tenneson’s testimony (and that of her family members) to
establish the onset date of her shoulder injury.
The Secretary’s argument is flawed because it relies on a faulty premise—i.e., that the
Chief Special Master’s finding as to the onset date of Ms. Tenneson’s shoulder injury was based
entirely on affidavits that were “unsubstantiated by medical records or by medical opinion.” In
fact, the Chief Special Master did not rely exclusively on the affidavits to determine the onset
date. She also cited the records of Ms. Tenneson’s visit with Dr. Vandeloo on March 30, 2016,
during which she reported that her shoulder pain had begun immediately after the October 2015
flu shot. CSM Dec. at 7. In addition, the Chief Special Master cited the records of Ms.
Tenneson’s physical therapy evaluation on April 13, 2016, which recount that “[patient] got a flu
shot in Oct. 2015, and since then she has had pain.” Id. Finally, the Chief Special Master relied
upon the records of Ms. Tenneson’s visit with the orthopedist on April 27, 2016, which stated
that “the day following her flu shot she had significant pain in the left shoulder and had limited
range of motion.” Id.
To be sure, these medical records were not prepared contemporaneously with the event in
question (i.e., the onset of Ms. Tenneson’s shoulder injury). But Ms. Tenneson’s delay in seeking
treatment for her shoulder injury does not deprive the records of probative value as to the date
Ms. Tenneson began experiencing shoulder pain and disability. Thus, the records are probative
because they “contain information supplied to or by health professionals to facilitate diagnosis
and treatment of medical conditions” and “[w]ith proper treatment hanging in the balance,
accuracy has an extra premium.” Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525,
1528 (Fed. Cir. 1993). Given this presumption that an individual seeking treatment is likely to
supply accurate information to their health care provider, the Court is unpersuaded by the
Secretary’s argument, which seems to assume—with no supporting evidence, direct or
circumstantial—that Ms. Tenneson intentionally deceived her doctors regarding the onset date of
her shoulder pain.
Finally, and in any event, it is not readily apparent that 42 U.S.C. § 300aa-13(a)(1)
precludes a special master or court from finding an onset date supported by preponderant
evidence based on lay testimony, as the Secretary contends. That provision’s language states that
an adjudicator cannot find that a petitioner has demonstrated by preponderant evidence “the
matters required in the petition by section 300aa–11(c)(1) of [Title 42]” without substantiation
by medical evidence or medical opinion. But 42 U.S.C. § 300aa-13(a)(1) does not speak to the
circumstances under which particular subsidiary facts relevant to causation (such as, for
example, the fact of a vaccination or the onset date of an injury) may be established by
preponderant evidence on the basis of lay testimony, so long as the overall finding of causation is
sustained by medical records or medical opinion. Centmehaiey v. Sec’y of Dep’t of Health &
Human Servs., 32 Fed. Cl. 612, 621, aff’d sub nom. Centmehaiey v. Sec’y of Health & Human
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Servs., 73 F.3d 381 (Fed. Cir. 1995) (noting that 42 U.S.C. § 300aa–13(a)(1) does not bar
recovery where there is no contemporaneous, documentary proof of a vaccination) (citing Brown
v. Sec’y of Dep’t of Health & Human Servs., 18 Cl. Ct. 834, 839 (1989), rev’d on other grounds,
920 F.2d 918 (1990)).
As the Court sees it, the prohibition in 42 U.S.C. § 300aa-13(a)(1) is against finding a
cause-and-effect relationship between a vaccine and an injury without any substantiation by
medical evidence or opinion. See Johnston v. Sec’y of Dep’t of Health & Human Servs., 22 Cl.
Ct. 75, 78 (1990) (“Section 300aa–13(a)(1) is a general admonition. It is an effort to weed out
claims which have no medical basis to support the injury.”); Camery v. Sec’y of Health &
Human Servs., 42 Fed. Cl. 381, 389 (1998) (same). In any event, the Court has found that the
onset date for Ms. Tenneson’s shoulder injury was supported by medical records. It therefore
need not decide whether it is always impermissible to rely on lay testimony to establish an onset
date.
In short, there is no merit to the Secretary’s argument that the Chief Special Master
committed a legal error when she found that the onset date of Ms. Tenneson’s shoulder injury
was within forty-eight hours of her vaccination. The Court turns, therefore, to the Secretary’s
argument that the onset date finding—if not legally erroneous—was nonetheless arbitrary and
capricious.
B. The Secretary’s Argument That the Chief Special Master’s Factual
Determination Regarding the Date of Onset Was Arbitrary and Capricious
The Secretary’s second argument is that the Chief Special Master’s onset determination
was arbitrary and capricious because she found Ms. Tenneson’s testimony regarding the onset
date of her symptoms credible, notwithstanding what the Secretary asserts was its inconsistency
with contemporaneous medical records. Specifically, the Secretary takes the Chief Special
Master to task for not giving greater weight to Ms. Tenneson’s failure to seek treatment more
promptly or to mention her shoulder condition when she called her physician’s office in
December 2015 and January 2016. He contends that these actions (or failures to act), undermine
the credibility of Ms. Tenneson’s testimony as to the onset date of her injury. Moreover, the
Secretary argues, contemporaneous medical records (the records of Ms. Tenneson’s January
emergency room visit) affirmatively indicated a lack of tenderness in her extremities and a
normal range of motion, results which are inconsistent with Ms. Tenneson’s contention that she
had been suffering significant shoulder pain since the preceding October.
As the Court explained above, however, its function on review of the decision of a
special master is not to “reweigh the factual evidence, assess whether the special master correctly
evaluated the evidence, or examine the probative value of the evidence or the credibility of the
witnesses.” Porter, 663 F.3d at 1249. In fact, the Court is required to uphold factual findings that
are “based on evidence in the record that [is] not wholly implausible.” Cedillo, 617 F.3d at 1338.
Here, the Chief Special Master provided an entirely reasonable explanation for crediting
Ms. Tenneson’s testimony (and that of her family) regarding the onset date of her shoulder
injury, notwithstanding her delay in seeking treatment. She observed that Ms. Tenneson’s
medical records “repeatedly and consistently placed the onset of her condition within 48 hours of
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her vaccination.” CSM Dec. at 7. She found that “the fact that [Ms. Tenneson] delayed seeking
treatment for her shoulder symptoms does not negate the value of her treatment records or render
this evidence not credible, although it may speak to the severity of her injury.” Id. She further
found “reasonable and credible” Ms. Tenneson’s affidavits explaining her “pattern of treatment
and reports to her physicians” (which were consistent with those of her family members), and
observed that in her (considerable) experience, “petitioner’s affidavits and medical records
together reflect a pattern of treatment consistent with and similar to many other SIRVA claims.”
Id.
Further, the Chief Special Master provided an adequate explanation for her decision not
to give greater weight to the emergency room treatment records which reflected that checkmarks
had been placed next to boxes for “non-tender,” “nrml ROM,” and “no pedal edema” under the
“extremities” portion of the physical exam section. As the Chief Special Master explained, Ms.
Tenneson “was seen at the ER on January 22, 2016 for a [urinary tract infection] and kidney
stones which are extremely painful conditions for which petitioner was seeking urgent medical
attention.” Id. at 8. Ms. Tenneson’s testimony was that her shoulders were not examined and that
the doctor spent no more than two or three minutes with her. Id. at 4. And the Chief Special
Master noted that, in her experience, “thorough physical examinations are not conducted in the
ER setting for issues beyond or unrelated to the reason for that visit . . . in contrast to a general or
physical examination conducted by a primary care physician or orthopedist.” Id. at 8. Similarly,
the Chief Special Master found that the calls on January 25 and 26 were “clearly in follow-up to
petitioner’s emergency room visit for her UTI and kidney stones, and the description of lack of
pain relates accordingly to those issues.” Id.
The Secretary contends that the Chief Special Master “erred by relying upon her own
undisclosed (and effectively unrebuttable) opinion about the standard of care in emergency
rooms based on her personal experience.” Resp’t’s Mot. at 17. According to the Secretary, “the
Chief Special Master’s determination that no extremities exam was performed here . . . was
purely speculative.” Id. The Court finds this argument unpersuasive. The Chief Special Master
did not speculate; she found credible Ms. Tenneson’s testimony that—notwithstanding the
checked boxes—her left shoulder was not examined during her visit. The Chief Special Master
reasonably noted that a more thorough examination is often not conducted for issues beyond
those for which the patient presents at an emergency room. After all, the purpose of an
emergency room visit is to receive emergency treatment, not a comprehensive health check-up.
That the Chief Special Master is “not herself a medical doctor” and “has no direct
knowledge of the particular medical facility in question” does not mean she cannot rely on her
experience and common sense to evaluate evidence. See id. Indeed, a special master may rely
upon her “accumulated expertise” gained adjudicating Vaccine Act claims. Hodges, 9 F.3d at
961. That includes her accumulated expertise reviewing a variety of medical reports and
considering numerous medical procedures, including those produced and undertaken in the
emergency room setting.
It was equally sensible for the Chief Special Master not to draw conclusions about the
onset of Ms. Tenneson’s shoulder injury from her contacts with one of the medical assistants at
Kaiser in December, when she was seeking a “letter of good health” to enable her to work at a
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preschool. The impetus for those contacts was limited to securing the required certification for
employment purposes.
Finally, the Court gives no credence to the Secretary’s claim that the Chief Special
Master’s decision resolved “a question of extraordinary importance to the Vaccine Injury
Compensation Program” and that “if allowed to stand, the decision . . . would set a troubling
precedent that petitioner can establish entitlement to compensation simply by averring an
appropriate onset in an affidavit even where the contemporaneous medical records do not
support these claims, and in fact affirmatively show a lack of symptoms.” See Resp’t’s Mot. at
12. For one thing, to the extent that the Secretary wished to challenge the credibility of Ms.
Tenneson’s affidavit regarding the onset date (or the affidavits of her family members), he could
have requested the opportunity to cross-examine her at a hearing. Instead, he agreed that the case
could be decided on the record. Second, it is not true that Ms. Tenneson’s claims as to onset have
no support in the medical documentation. As described above, Ms. Tenneson’s allegations in her
affidavit regarding the onset date are consistent with what she told her physicians and medical
professionals when she sought treatment for her injury. And finally, the Chief Special Master
explained why, in the context of the facts of this case, she did not give weight to the perfunctory
notations regarding Ms. Tenneson’s “extremities” that were contained in the emergency room
records.
In short, the Chief Special Master’s decision was based on all of the evidence before her.
She provided an adequate and reasonable explanation for her finding that Ms. Tenneson’s
shoulder injury manifested within forty-eight hours of the vaccination. The inferences she drew
and the conclusions she reached were not unreasonable. The Court, accordingly, sustains her
decision.
CONCLUSION
On the basis of the foregoing, the Respondent’s motion for review is DENIED and the
Chief Special Master’s ruling on entitlement is SUSTAINED. The Clerk is directed to enter
judgment accordingly.
IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Judge
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