VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_18-vv-00464 Package ID: USCOURTS-cofc-1_18-vv-00464 Petitioner: Charla Thornton Filed: 2018-03-30 Decided: 2020-04-14 Vaccine: influenza Vaccination date: 2016-10-06 Condition: right Shoulder Injury Related to Vaccine Administration (SIRVA) Outcome: compensated Award amount USD: 57000 AI-assisted case summary: Charla Thornton filed a petition for vaccine compensation on March 30, 2018, alleging she suffered a right Shoulder Injury Related to Vaccine Administration (SIRVA) after receiving an influenza vaccine on October 6, 2016. She reported experiencing pain since her flu shot that lasted longer than six months. The respondent denied that the petitioner sustained a SIRVA Table injury, denied that the vaccine caused her alleged shoulder injuries or any other injury, and denied that her current condition was a sequela of a vaccine-related injury. Despite these positions, the parties filed a joint stipulation on March 10, 2020, agreeing to settle the case. Chief Special Master Brian H. Corcoran adopted the stipulation, awarding Charla Thornton $57,000.00 in compensation for all damages available under the Vaccine Act, including pain and suffering, past lost wages, and past unreimbursable expenses. The decision was issued on April 14, 2020. Petitioner was represented by Leah VaSahnja Durant of the Law Offices of Leah V. Durant, PLLC, and respondent was represented by Mollie Danielle Gorney of the U.S. Department of Justice. Theory of causation field: Petitioner Charla Thornton received an influenza vaccine on October 6, 2016, and alleged a right Shoulder Injury Related to Vaccine Administration (SIRVA). Respondent denied a SIRVA Table injury and that the vaccine caused her alleged injuries. The parties filed a joint stipulation agreeing to settle the case. The Special Master adopted the stipulation, awarding $57,000.00 for all damages under 42 U.S.C. § 300aa-15(a), including pain and suffering, past lost wages, and past unreimbursable expenses. The decision was issued by Chief Special Master Brian H. Corcoran on April 14, 2020. Petitioner was represented by Leah VaSahnja Durant and respondent by Mollie Danielle Gorney. The theory of causation is based on the Vaccine Injury Table (SIRVA). Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_18-vv-00464-0 Date issued/filed: 2019-12-20 Pages: 4 Docket text: PUBLIC ORDER/RULING (Originally filed: 10/18/2019) regarding 41 Findings of Fact & Conclusions of Law,, Scheduling Order, Signed by Chief Special Master Brian H. Corcoran. (ypb) Service on parties made. -------------------------------------------------------------------------------- Case 1:18-vv-00464-UNJ Document 45 Filed 12/20/19 Page 1 of 4 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-0464V UNPUBLISHED CHARLA THORNTON, Chief Special Master Corcoran Petitioner, Filed: October 18, 2019 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Findings of Fact; Onset; Influenza HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration Respondent. (SIRVA) Michael Patrick Milmoe, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for respondent. FINDINGS OF FACT1 On March 30, 2018, Charla Thornton 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 left shoulder injury, which was caused by an influenza (“flu”) vaccine she received on October 6, 2016. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. For the reasons discussed below, I find the onset of Petitioner’s shoulder injury related to vaccine administration (“SIRVA”) occurred within 48 hours of vaccination. Specifically, Petitioner suffered symptoms manifested by pain within 48 hours of vaccination. 1 This ruling will be posted on the United States Court of Federal Claims' website. This means the ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the 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 1:18-vv-00464-UNJ Document 45 Filed 12/20/19 Page 2 of 4 I. Relevant Procedural History In support of her claim, Petitioner filed medical records (Exs. 2-9) and her own affidavit (Ex. 10). Deadlines for Respondent to report his position in the case were set following the May 8, 2018 initial status conference. ECF No. 9; see also ECF No. 13, ECF No. 15, and ECF No. 17 and Docket Entry, dated January 30, 2019. On March 5, 2019, Respondent filed a status report stating that he was willing to engage in discussions regarding a potential settlement or proffer. ECF No. 24. Petitioner provided a demand on April 4, 2019. ECF No. 26. On May 6, 2019, however, Petitioner filed a status report indicating that further settlement discussions would not be fruitful, expressing the position that a fact ruling regarding onset would be necessary to resolve this case and requesting that respondent be ordered to file his Rule 4(c) Report. ECF No. 28. In an email to the staff attorney managing the case at the time, Respondent agreed to file the requested Rule 4(c) Report and requested 45 days to do so. ECF No. 29. Respondent filed his Rule 4(c) Report on June 24, 2019. ECF No. 32. Petitioner subsequently filed a motion for fact ruling on onset on September 5, 2019 (listed on the docket as “motion for ruling on the record”). ECF No. 37. Respondent responded to this motion on September 19, 2019, and Petitioner filed a reply to the response on September 23, 2019. ECF No. 38 and ECF No. 39. The matter is now ripe for adjudication. II. Issue At issue is whether Petitioner’s first symptom or manifestation of onset after vaccine administration was within 48 hours as set forth in the Vaccine Injury Table. 42 C.F.R. § 100.3(a) XIV.B. (2017) (influenza vaccination). Additionally, the Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA requires that a petitioner’s pain occur within this same time frame, 48 hours. 42 C.F.R. § 100.3(c)(10). III. Authority Pursuant to Vaccine Act § 13(a)(1)(A), a petitioner must prove, by a preponderance of the evidence, the matters required in the petition by Vaccine Act § 11(c)(1). A special master may find that the first symptom or manifestation of onset of an injury occurred “within the time period described in the Vaccine Injury Table even though the occurrence of such symptom or manifestation was not recorded or was incorrectly recorded as having occurred outside such period.” Vaccine Act § 13(b)(2). “Such a finding may be made only upon demonstration by a preponderance of the evidence that the onset [of the injury] . . . did in fact occur within the time period described in the Vaccine Injury Table.” Id. 2 Case 1:18-vv-00464-UNJ Document 45 Filed 12/20/19 Page 3 of 4 A special master must consider, but is not bound by, any diagnosis, conclusion, judgment, test result, report, or summary concerning the nature, causation, and aggravation of petitioner’s injury or illness that is contained in a medical record. Vaccine Act § 13(b)(1). “Medical records, in general, warrant consideration as trustworthy evidence. The records contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium. These records are also generally contemporaneous to the medical events.” Curcuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). IV. Finding of Fact I make the findings in this ruling after a complete review of the record, including all medical records, affidavits, testimony, expert reports, Respondent’s Rule 4 Report, and additional evidence filed. Specifically, I base the finding on the following evidence: • Ms. Thornton received the influenza vaccination in her right deltoid at Carolinas Medical Center, her place of work, on October 6, 2016. Ex. 1 at 1. • On November 7, 2016, Petitioner presented to Carolinas Health Care Systems for complaints of right shoulder pain. Ex 5 at 2. She reported pain “since the flu shot.” Id. Treatment records reflect a diagnosis of rotator cuff tendinitis plus inflammation of other muscle groups due to reaction to “flu shot.” Id. • Petitioner presented to Dr. Nady Hamid, an orthopedic surgeon, on January 10, 2017 with a chief complaint of “right shoulder pain following flu shot on 6OCT16.” Ex. 3 at 7. • In physical therapy treatment notes dated January 20, 2017, Petitioner is described as a “female nurse who experienced a significant pain response in R shoulder and upper arm after receiving a flu shot in her R dominant upper arm October 6, 2016.” Ex. 2 at 234. The date of injury/onset is also listed as October 6, 2016. Id. at 220. • On February 17, 2017, Ms. Thornton reported to Kerri-Ann Thompson, her primary care physician, that she suffered a work-related injury due to a misplaced flu vaccine into the right upper arm. Ex. 4 at 116. • At an appointment with Dr. Patricia Shannon, a physiatrist, Petitioner reported that she “immediately” developed right shoulder pain after her flu shot in October 2016. Ex. 8 at 2. 3 Case 1:18-vv-00464-UNJ Document 45 Filed 12/20/19 Page 4 of 4 • Treatment records from Dr. Anthony Martin, a family medicine practitioner, reflect that Petitioner reported that all her symptoms started after receiving a flu shot from work. Ex. 11 at 2. • In an affidavit dated April 6, 2018, Petitioner alleged that she experienced pain and tenderness “immediately” after receiving the influenza vaccine. Ex. 10 at 1. • In a supplemental affidavit dated June 2019, Petitioner reiterated that she immediately experienced pain after the influenza vaccination that “continued to worsen as the day progressed.” Ex. 15 at 1. • Ms. Thornton also submitted three affidavits from coworkers. Exs. 16-18. All three coworkers were working with Petitioner on the day she received her influenza vaccination and reported that she complained of shoulder pain immediately after vaccination. Id. The affidavits of Petitioner and witnesses are consistent with the medical evidence; therefore, I find the information contained therein credible. As such, I find preponderant evidence that petitioner’s manifestation of onset after influenza vaccine administration occurred within 48 hours of October 6, 2016. V. Scheduling Order Given my findings of fact regarding the onset of Petitioner’s pain, Respondent should evaluate and provide his current position regarding the merits of petitioner’s case. Accordingly, Respondent shall file, by no later than Monday, December 2, 2019, an amended Rule 4 Report reflecting Respondent’s position in light of the above fact finding. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 4 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_18-vv-00464-1 Date issued/filed: 2020-04-14 Pages: 7 Docket text: PUBLIC DECISION (Originally filed: 03/13/2020) regarding 50 DECISION Stipulation/Proffer Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made. -------------------------------------------------------------------------------- Case 1:18-vv-00464-UNJ Document 54 Filed 04/14/20 Page 1 of 7 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 18-464V UNPUBLISHED CHARLA THORNTON, Chief Special Master Corcoran Petitioner, Filed: March 13, 2020 v. SECRETARY OF HEALTH AND Special Processing Unit (SPU); Joint HUMAN SERVICES, Stipulation on Damages; Influenza (Flu) Vaccine; Shoulder Injury Respondent. Related to Vaccine Administration (SIRVA) Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for petitioner. Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for respondent. DECISION ON JOINT STIPULATION1 On March 30, 2018, Charla Thornton 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 right Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of receiving the influenza (“flu”) vaccine on October 6, 2016. Petition at 1; Stipulation, filed March 10, 2020, at ¶¶ 4. Petitioner further alleges she experienced pain “since [her] flu shot” and that her shoulder pain lasted for longer than six months. Petition at 1-3. “Respondent denies that Petitioner sustained a SIRVA Table injury; denies that the vaccine caused Petitioner’s alleged shoulder injuries, or any other injury; and denies that her current condition is a sequela of a vaccine-related injury ” Stipulation at ¶ 6. 1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). This means the decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012). Case 1:18-vv-00464-UNJ Document 54 Filed 04/14/20 Page 2 of 7 Nevertheless, on March 10, 2020, the parties filed the attached joint stipulation, stating that a decision should be entered awarding compensation. I find the stipulation reasonable and adopt it as my decision awarding damages, on the terms set forth therein. Pursuant to the terms stated in the attached Stipulation, I award the following compensation: A lump sum of $57,000.00 in the form of a check payable to Petitioner. Stipulation at ¶ 8. This amount represents compensation for all items of damages that would be available under § 15(a). Id. I approve the requested amount for Petitioner’s compensation. In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed to enter judgment in accordance with this decision.3 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran 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 1:18-vv-00464-UNJ Document 54 Filed 04/14/20 Page 3 of 7 IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ) CHARLA THORNTON, ) ) Petitioner, ) ) No. 18-0464V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ) STIPULATION The parties hereby stipulate to the folJowing matters: 1. Charla Thornton, petitioner, filed a petition for vaccine compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 to -34 (the "Vaccine Program"). The petition seeks compensation for injuries allegedly related to petitioner's receipt of an influenza (''flu") vaccine, which is a vaccine contained in the Vaccine Injury Table (the "Table"), 42 C.F.R. § 100.3 (a). 2. Petitioner received the flu vaccine on October 6, 2016. 3. The vaccination was administered within the United States. 4. Petitioner alleges that she suffered from a right shoulder injury related to vaccination administration ("SIRVA") as a result of receiving the flu vaccine. 5. Petitioner represents that there has been no prior award or settlement of a civil action for damages on.her behalf as a result of her condition. 6. Respondent denies that petitioner sustained a SIRVA Table injury; denies that the vaccine caused petitioner's alleged shoulder injuries, or any other injury; and denies that her Case 1:18-vv-00464-UNJ Document 54 Filed 04/14/20 Page 4 of 7 current condition is a sequelae of a vaccine-related injury. 7. Maintaining their above-stated positions, the parties nevertheless now agree that the issues between them shall be settled and that a decision should be entered awarding the compensation described in paragraph 8 of this Stipulation. 8. As soon as practicable after an entry ofj udgment reflecting a decision consistent with the terms of this Stipulation, and after petitioner has filed an election to receive compensation pursuant to 42 U.S.C. § 300aa-21(a)(l), the Secretary of Health and Human Services will issue the following vaccine compensation payment: a A lump sum of $57,000.00 in the form of check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a), including pain and suffering, past lost wages, and past unreimbursed expenses. 9. As soon as practicable after the entry ofj udgment on entitlement in this case, and after petitioner has filed both a proper and timely election to receive compensation pursuant to 42 U.S.C. § 300aa-2l(aXI), and an application, the parties will submit to further proceedings before the special master to award reasonable attorneys' fees and costs incurred in proceeding upon this petition. I 0. Petitioner and her attorney represent that compensation to be provided pursuant to this Stipulation is not for any items or services for which the Program is not primarily liable under 42 U.S.C. § 300aa-l 5(g), to the extent that payment has been made or can reasonably be expected to be made under any State compensation programs, insurance policies, Federal or State health benefits programs (other than Title XIX of the Social Secwity Act (42 U.S.C. § 1396 et seq.)), or by entities that provide health services on a pre-paid basis. 2 Case 1:18-vv-00464-UNJ Document 54 Filed 04/14/20 Page 5 of 7 11. Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded pursuant to paragraph 9 ofthis Stipulation will be made in accordance with 42 U.S.C. § 300aa- 15(i), subject to the availability of sufficient statutory funds. 12. The parties and their attorney~ further agree and stipulate that, except for any award for attorneys' fees and litigation costs, and past unreimbursed expenses, the money provided pursuant to this Stipulation will be used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C. § 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-l 5(g) and (h). 13. In return for the payments described in paragraphs 8 and 9, petitioner, in her individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns, does forever irrevocably and unconditionally release, acquit and discharge the United States and the Secretary of Health and Human Services from any and all actions or causes of action (including agreements, judgments, claims, damages, loss of services, expenses and all demands of whatever kin