VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-00034
Package ID: USCOURTS-cofc-1_19-vv-00034
Petitioner: Susan Tehennepe
Filed: 2019-01-04
Decided: 2021-05-10
Vaccine: influenza
Vaccination date: 2017-10-11
Condition: Shoulder Injury Related to Vaccine Administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Susan Tehennepe filed a petition for compensation under the National Vaccine Injury Compensation Program on January 4, 2019, alleging she suffered a Shoulder Injury Related to Vaccine Administration (SIRVA) as a result of an influenza vaccine received on October 11, 2017. The core dispute centered on the timing of her injury's onset, specifically whether it preceded the vaccination. The Special Master conducted a fact hearing and reviewed extensive medical and massage therapy records, some of which contained suspicious alterations. Ultimately, the Special Master found that Petitioner's left arm pain predated the vaccination, based on the original, unaltered massage therapy records and testimony. Due to the finding that the injury predated the vaccination, the Special Master determined that Petitioner could not prove entitlement to compensation under the Vaccine Act. Consequently, the Special Master granted Petitioner's motion to dismiss her petition. Judgment was entered accordingly.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-00034-0
Date issued/filed: 2021-04-12
Pages: 13
Docket text: PUBLIC ORDER/RULING (Originally filed: 3/3/2021) regarding 49 FINDINGS OF FACT REGARDING ONSET. Signed by Special Master Katherine E. Oler. (sl) Service on parties made.
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Case 1:19-vv-00034-UNJ Document 54 Filed 04/12/21 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-34V
March 3, 2021
* * * * * * * * * * * * * * * * * * * * * * * * * *
*
*
SUSAN TEHENNEPE, UNPUBLISHED
*
*
Petitioner, * Findings of Fact; Onset;
*
Influenza Vaccine; Shoulder Injury
*
v. * Related to Vaccine Administration
* (“SIRVA”).
SECRETARY OF HEALTH AND *
HUMAN SERVICES, *
*
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * * *
Leah Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner
Voris Johnson, U.S. Department of Justice, Washington, DC, for Respondent
RULING ON ONSET1
Oler, Special Master:
On January 4, 2019, Ms. Susan TeHennepe (“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” or “Program”). The petition alleges that she suffered from a Shoulder Injury
1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I intend 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 Ruling will be available to anyone with access to the internet. However, the
parties may object to the Ruling’s inclusion of certain kinds of confidential information. Specifically, under
Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute
a clearly unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Ruling will be
available to the public. Id.
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).
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Related to Vaccine Administration (“SIRVA”) as a result of the influenza vaccine she received on
October 11, 2017. Pet. at 1, ECF No. 1.
After carefully considering the testimony, the medical records, and affidavits, I find that
Petitioner’s left shoulder/arm pain began before her vaccination.
I. Procedural History
In support of her Petition, Petitioner filed medical records and massage therapy records on
January 14, 2019 (Exs. 1-5), April 24, 2019 (Ex. 6), June 24, 2019 (Ex. 8), October 30, 2020 (Ex.
15), and December 3, 2020 (Ex. 22). Petitioner filed an affidavit on April 24, 2019. Ex. 7.
Petitioner filed supplemental affidavits on June 24, 2019 (Ex. 9), and on December 1, 2020 (Ex.
16).
On December 11, 2019, Chief Special Master Corcoran held a status conference. See
Scheduling Order of December 13, 2019, ECF No. 17. At this conference, Respondent raised
concerns regarding handwritten alterations that had been made to Petitioner’s massage therapy
records. Id. at 1. These alterations bear on the disputed issue regarding whether Petitioner’s
injuries pre-dated her vaccination. Id.
This case was transferred to me on January 29, 2020. ECF No. 23. On February 26, 2020,
Respondent filed his Rule 4(c) Report, stating that “this case is not appropriate for compensation
under the terms of the Vaccine Act.” Resp.’s Rep. at 1, ECF No. 24. Contemporaneous with his
Report, Respondent filed a status report noting several instances where the massage therapy
records were altered. ECF No. 25 (Feb. 26, 2020). Respondent stated that:
It is not credible to [R]espondent that Ms. Rosenblum would have consistently, on
numerous occasions over the course of months and years, incorrectly documented
that [P]etitioner was complaining of left arm pain if, in fact, she was instead
complaining of right arm pain. Respondent therefore asks the Court to ignore the
alterations made by Ms. Rosenblum and find that the records as originally written,
contemporaneously at the time of treatment, are reliable and controlling.
ECF No. 24 at 3. Respondent further stated that, “In the event [the] Court believes it is necessary
to further develop the factual record before making a ruling on this issue, then [R]espondent
requests a fact hearing and the opportunity to question both [P]etitioner and Ms. Rosenblum.” Id.
On June 16, 2020, I held a status conference in this case. I explained to Petitioner’s
counsel, Ms. Durant, that I had concerns regarding the alteration of Petitioner’s massage therapy
records (Exhibits 5, 6, and 8) and would like to examine these records myself. I therefore asked
Ms. Durant to mail original copies of these records to my chambers. See Scheduling Order of June
16, 2020, ECF No. 28. Ms. Durant agreed. Id. On July 16, 2020, Petitioner filed electronic
versions of these original massage therapy records. ECF No. 29, Exs. 12-14. On August 12, 2020,
my law clerk reached out to Ms. Durant to ascertain the location of the original records, as they
had not yet been received by my chambers. See Informal Remark of September 28, 2020. Ms.
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Durant stated that the “records were mailed via first-class US mail and were hand delivered by
myself to the US post office.” Id. To date, these original records have not been received.
On September 25, 2020, I held a status conference in this case to discuss the altered
massage therapy records. See Scheduling Order of September 30, 2020, ECF No. 31. I informed
Ms. Durant that I did not find the alterations credible and I was inclined to credit the records as
originally written as reliable and controlling. Id. at 4. I further informed Ms. Durant that, given
my skepticism regarding the alterations, I did not afford much weight to Ms. Rosenblum’s
corrections. Id. Ms. Durant indicated that even with the altered massage therapy records,
Petitioner believed that enough evidence existed to pursue her case. Id. Ms. Durant asked to file
an expert report in order to further Petitioner’s case. Id. The Secretary’s attorney, Mr. Johnson,
indicated that, regardless of the filing of any expert reports, he would be filing a good
faith/reasonable basis objection in this case. Id.
In the order following this status conference, I indicated that the veracity of the massage
therapy records needed to be ascertained prior to the filing of any expert reports. I therefore
ordered the parties to file a joint status report regarding their availability for a fact hearing to be
conducted in December 2020 where Petitioner and Ms. Rosenblum would be made available to
testify. See Scheduling Order of September 30, 2020.
I held a fact hearing on December 8, 2020, via WebEx to determine the date of onset of
Petitioner’s shoulder pain. Ms. Leah Durant appeared on behalf of Petitioner and Mr. Voris
Johnson appeared on behalf of Respondent. I heard testimony from Petitioner, Lisa Rosenblum,
Jeffrey TeHennepe, Erin Short, Karen Brummer, Patricia Johnson, and Vicky Tataryn.
After the fact hearing, I asked Petitioner to file additional documentation. On January 25,
2021, Petitioner filed her text messages with Ms. Rosenblum, her emails with Ms. Rosenblum, and
checks that she wrote to Ms. Rosenblum. See ECF No. 46. Petitioner also filed the records
currently possessed by Ms. Rosenblum as Ex. 30.
On March 1, 2021, the parties filed a joint status report indicating that the record was
complete for a determination on onset. ECF No. 48.
II. Records and Testimony Applicable to the Issue of Onset
A. The Unaltered Medical Records
Petitioner received the flu vaccine in her left deltoid on October 11, 2017. Ex. 1 at 1-2.
On January 9, 2018, Petitioner presented to Dr. Karen Larson for colon cancer screening.
Ex. 4 at 14. There is no indication that Petitioner mentioned shoulder pain during this visit.
On February 13, 2018, Petitioner presented to Dr. Larson for an office visit. Ex. 4 at 13.
The medical records indicate that Petitioner was at high risk for bilateral glaucoma. Id. Dr. Larson
started her on Latanoprost and directed her to put one drop in each eye in the evening. Id. Petitioner
did not mention shoulder pain during this appointment.
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On February 16, 2018, Petitioner presented to Dr. Larson. That record indicates that
Petitioner complained of pain in the upper left biceps which started “a few months ago after getting
her flu shot.” Ex. 4 at 11.
On February 23, 2018, Petitioner presented to Tennessee Orthopaedic Alliance for pain
and limited range of motion that started “a couple days after flu shot.” Ex. 3 at 31.
Petitioner presented to her initial PT session on February 26, 2018. Ex. 2 at 6. The
Assessment portion of the record states, “Pt is a 67 y.o. female that presents to PT with c/o left shoulder
pain due to insidious onset on 10/15/17 following flu shot to left shoulder a few days prior.” Id. She
attended a total of four visits and was discharged from PT on March 23, 2018, due to financial
limitations. Id. at 25.
B. The Massage Therapy Records and Related Affidavits/Testimony
Petitioner began seeing Ms. Rosenblum for massage therapy in 2009, although no records
before 2014 were filed. See Ex. 10 at 1 (hereinafter “Rosenblum affidavit”). Petitioner filed
massage treatment records dating from 2014 through 2017. She filed three sets of these records:
records from 5/2/2014 through 11/4/2016 (Ex. 6); records from 12/3/2016 through 8/23/2017 (Ex.
8); and records from October 2017 through December 2017 (Ex. 5). Each of these sets of records
contain alterations. Exhibits 6 and 8 were altered to change the location of massage treatment
from the right shoulder to the left shoulder. Exhibit 5 was altered in a different way and will be
discussed separately.
1. Exhibits 6 and 8
The first record of Petitioner visiting Ms. Rosenblum was on May 2, 2014. Ex. 6 at 1.
Exhibit 6 in its totality contains 14 alterations. Each of these alterations noted below changed the
site of massage treatment from the left side to the right side.
• Entry of May 29, 2014 is altered to read “addressed some [sic] found in R shoulder girdle.”
The original entry reads “addressed some [sic] in L shoulder girdle”
• Entry of June 30, 2014 is altered to read “more emphasis on R side.” The original entry
reads “more emphasis on L side.”
• Entry of August 28, 2014 is altered to read “[e]xtra focus on upper body [sic] R shoulder
girdle.” The original entry reads “[e]xtra focus on upper body [sic] L shoulder girdle.”
• Entry of May 30, 2015 is altered to read “Tight in traps, biceps R side.” The original entry
reads “Tight in traps, biceps L side.”
• Entry of June 27, 2015 is altered to read “tightness shoulder girdle R side.” The original
entry reads “tightness shoulder girdle L side.”
• Entry of August 29, 2015 is altered to read “Xtra focus on R arm w/ tuning fork…” The
original entry reads “Xtra focus on L arm w/ tuning fork…”
• Entry of November 7, 2015 is altered to read “tight muscles in R trap + biceps.” The
original entry reads “tight muscles in L trap + biceps.”
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• Entry of November 20, 2015 is altered to read “polarity therapy w/tuning fork on
acupressure [sic] especially R side.” The original entry reads “polarity therapy w/tuning
fork on acupressure [sic] especially L side.”
• Entry of January 22, 2016 is altered to read “R side has less ROM.” The original entry
reads “L side has less ROM.”
• Entry of January 30, 2016 is altered to read “move stagnant energy especially R side.” The
original entry reads “move stagnant energy especially L side.”
• Entry of April 23, 2016 is altered to read “muscle tension R side.” The original entry reads
“muscle tension L side”
• Entry of June 27, 2016 is altered to read “some soreness in R arms.” The original entry
reads “some soreness in L arms.”
• Entry of August 20, 2016 is altered to read “gentle stretches R side.” The original entry
reads “gentle stretches L side.”
• Entry of November 4, 2016 is altered to read “R shoulder – arm sore.” The original entry
reads “L shoulder – arm sore.”
Ex. 6 at 1-3.
Like Exhibit 6, Exhibit 8 also contains multiple alterations (eight total), changing the
treatment situs from left to right.
• Entry of December 3, 2016 is altered to read “has had right upper arm from elbow to deltoid
soreness.” The original entry stated, “has had left arm from elbow to deltoid soreness.”
• Entry of January 7, 2017 is altered to read “worked [e]xtra on bicep; tricep + deltoid – right
side.” The original entry stated, “worked [e]xtra on bicep; tricep + deltoid – left side.”
• Entry of May 9, 2017 is altered to read “some pain still in R arm.” The original entry
stated, “some pain still in L arm.”
• Entry of May 23, 2017 is altered to read “full body but focused on R arm.” The original
entry stated, “full body but focused on L arm.”
• Entry of June 14, 2017 is altered to read “upper right arm still sore.” The original notation
is illegible.
• Entry of July 5, 2017 is altered to read “pain in right arm.” The original notation stated,
“pain in left arm.”
• Entry of July 26, 2017 is altered to read “client ROM – R arm limited.” The original
notation stated, “client ROM – L arm limited.”
• Entry of August 23, 2017 is altered to read “continued pain in right shoulder/arm.” The
original notation stated, “continued pain in left shoulder/arm.”
Ex. 8 at 1-3.
Petitioner and Ms. Rosenblum explained these altered records both in their affidavits and
during their testimony at the fact hearing. According to Ms. Rosenblum, when Petitioner requested
her records in 2019, Petitioner noticed that they were incorrect. Rosenblum Affidavit at 1.
According to Ms. Rosenblum, Petitioner then reminded her that she had received treatment for her
right arm and not her left. Id. Ms. Rosenblum agreed that this was the case and altered the records
accordingly. Id. Ms. Rosenblum stated, “I was not asked to make these changes by Sue
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TeHennepe or anyone else.” Id. During the hearing, Ms. Rosenblum testified that the indication
of left arm treatment “was totally just an oversight on my part. When I looked at those records
again, I realized that totally I had made an error there, and I corrected those. I stand by what the
corrections are, because they are totally the truth.” Tr. at 9.
Ms. Rosenblum provided additional testimony on this point. First, Ms. Rosenblum stated
that she tries to complete her treatment notes the same day as treatment or a couple of days
afterwards. Tr. at 18. Ms. Rosenblum additionally stated that after reviewing Petitioner’s file, she
realized that she had made an error and then went back to make the corrections. During cross
examination, she testified as follows:
Q And by my count, there were approximately 20 or 25 instances dating back to 2014 in
which you changed your notes to indicate that you provided treatment to the right shoulder
rather than the left. Is ... it your testimony that you simply made a mistake on every single
one of those occasions?
A That would be my testimony, that -- yes.
Tr. at 19. Further, Ms. Rosenblum was not able to provide any meaningful answer as to what it
was about those records that triggered her memory that she had made these errors. See Tr. at 9-
11.
Interestingly, there were several entries on Exhibit 6 that were not altered and still indicate
that Petitioner was treated for left shoulder pain prior to her vaccination.
• Entry of February 25, 2015: “Xtra work on L shoulder for better ROM.”
• Entry on February 26, 2016: “Xtra work today w/ cross-fiber friction to gently loosen Left
traps…”
• Entry of May 26, 2016: “Xtra on upper L arm.”
• Entry of October 1, 2016: “client has had some days less ROM in left arm/shoulder area.”
Ex. 6 at 2-3.
I asked Ms. Rosenblum about several of these specific entries during the fact hearing. She
testified that these entries did not represent an oversight on her part but instead correctly indicate
that Petitioner received treatment on her left arm on those particular occasions. See Tr. at 32. Ms.
Rosenblum was unable to explain how she could remember (several years after the fact) that
Petitioner received treatment for left arm pain on these specific occasions, and treatment for right
arm pain every other time.
2. Exhibit 5
Petitioner first filed this exhibit on January 14, 2019. The pertinent part of this version of
Exhibit 5 indicates that Petitioner visited Ms. Rosenblum for massage treatment on October 12,
2017, which is one day after Petitioner’s allegedly causal vaccination.
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I asked Petitioner to file the originals of each of the massage therapy records. Petitioner,
through her attorney, filed Exhibit 12, which is the original of Exhibit 5, on July 16, 2020. Exhibit
12 indicates that Petitioner received massage treatment not on October 12, 2017, but on October
2, 2017. I have attached a portion of both exhibits for clarity:
Ex. 5 at 1.
Ex. 12 at 1. Petitioner and Ms. Rosenblum both testified about this exhibit during the fact hearing.
Petitioner testified that she obtained Exhibit 5 from Ms. Rosenblum and then submitted that exhibit
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to her attorney. Tr. at 78. Ms. Rosenblum confirmed this point; she testified that she provided
Exhibit 5 to Petitioner. Tr. at 14-15. Unlike Exhibit 5, Ms. Rosenblum provided Exhibit 12
directly to Petitioner’s attorney in July of 2020. Tr. at 23-24.
When asked to explain the discrepancy between Exhibits 5 and 12, Ms. Rosenblum testified
that she noticed that Exhibit 12 was inaccurate after looking through her calendar to perform
something analogous to an audit of her records. Tr. at 19, 27.
THE WITNESS: I guess you could call it an audit. I do go back and look of when
people were in, of when they were in last and when they were in even the previous
year or two.
THE COURT: Why do you do that?
THE WITNESS: Because some people will get busy and not make their
appointments, and I just get curious sometimes about, you know, people I've seen,
so I'll go back and look and see when I worked on them last, when they were in,
how many times they were in the prior year. That's not uncommon for me to do
that.
Tr. at 27. Ms. Rosenblum was unsure of when she performed this audit and when she changed the
date on the exhibit from October 2, 2017 to October 12, 2017.
Petitioner disavowed any knowledge as to how this exhibit was changed. Tr. at 79. She
additionally testified that she did not speak with Ms. Rosenblum about the change. Id.
C. Testimony Concerning Onset
Petitioner testified that she received her flu shot on October 11, 2017 and woke up the next
morning with pain in her left arm. Tr. at 42-43. Specifically, she described the area as red, swollen,
and painful. Id. at 43. She testified that she saw her massage therapist that day and because the
area was so sensitive, Ms. Rosenblum could not work on it very much at all. Id. at 43-44.
Petitioner testified that she had experienced prior left shoulder pain but stated that the pain was
nothing like the pain she experienced after her flu shot. Id. at 45.
Petitioner described the pain as being in her upper arm, and not in her shoulder. Tr. at 51.
She stated, “my pain has never been in the actual shoulder joint” Id. at 87; and “It feels like it's in
the muscles and the tendons. It's not in my shoulder joint.” Id. at 91.
Petitioner testified that she did not mention left shoulder pain to Dr. Lawson on either
January 9, 2018 or February 13, 2018 because she had “other primary reasons for seeing her that
day.” Tr. at 62. Petitioner also testified that she did not routinely discuss her pain with anyone, to
include close friends and/or family. Id.
Petitioner’s son testified that his mother spoke with him a few days after her flu shot and
told him that she had been experiencing pain since the vaccination. Tr. at 96. He additionally
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testified that Petitioner experienced no shoulder symptoms between November 2016 and July
2017, while he was living with her. Id. at 94.
Erin Short, Petitioner’s niece spoke with Petitioner almost daily around the 2017/2018
timeframe. Tr. at 103. She never saw Petitioner have trouble with her left shoulder before her flu
vaccination. Id. at 103-04. Ms. Short testified that Petitioner told her that the pain started a day
or two after her vaccination. Id. at 105.
Karen Brummer has known Petitioner for about five years. Tr. at 109. Petitioner visited
her in Chattanooga in May of 2017, and Ms. Brummer did not observe Petitioner to have any
problems with her shoulder. Id. at 110. Since the vaccine, Petitioner has experienced left shoulder
pain. Ms. Brummer first learned that Petitioner had a left shoulder injury around the 2019
timeframe. Id. at 113-14.
Patricia Johnson, Petitioner’s sister testified that she had never noticed Petitioner to have
any trouble with her left shoulder prior to October of 2017. Tr. at 117. She then noticed that
Petitioner had problems with her left shoulder around Thanksgiving of that year. Id. She doesn’t
remember when Petitioner began to complain about her shoulder pain. Id. at 122.
Vicky Tataryn is one of Petitioner’s friends. She testified that before October of 2017,
Petitioner never complained to her about shoulder pain. Tr. at 124. Sometime around the October
2017 timeframe, Petitioner told Ms. Tataryn that she was having shoulder pain. Id. at 125.
Petitioner never mentioned the cause of her shoulder pain. Id. at 126.
III. Legal Standards Regarding Fact Finding
Petitioner bears the burden of establishing her claim by a preponderance of the evidence.
42 U.S.C. § 300aa-13(1)(a). A petitioner must offer evidence that leads the “trier of fact to believe
that the existence of a fact is more probable than its nonexistence before [he or she] may find in
favor of the party who has the burden to persuade the judge of the fact’s existence.” Moberly v.
Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations omitted).
In order to make a determination concerning factual issues, such as the timing of onset of
petitioner’s alleged injury, the special master should first look to the medical records. “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.”
Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993); Lowrie v. Sec’y
of Health & Hum. Servs., No. 03-1585V, 2006 WL 3734216, at *8 (Fed. Cl. Spec. Mstr. Nov. 29,
2006). Medical records created contemporaneously with the events they describe are presumed to
be accurate and complete. Doe/70 v. Sec’y of Health & Hum. Servs., 95 Fed. Cl. 598, 608 (2010).
Contemporaneous medical records generally merit greater evidentiary weight than oral
testimony; this is particularly true where such testimony conflicts with the record evidence.
Cucuras, 993 F.2d at 1528; see also Murphy v. Sec’y of Health & Hum. Servs., 23 Cl. Ct. 726, 733
(1991), aff’d, 968 F.2d 1226 (Fed. Cir. 1992)(citing United States v. United States Gypsum Co.,
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333 U.S. 364, 396 (1947) (“It has generally been held that oral testimony which is in conflict with
contemporaneous documents is entitled to little evidentiary weight”)). “Written documentation
recorded by a disinterested person at or soon after the event at issue is generally more reliable than
the recollection of a party to a lawsuit many years later.” Reusser v. Sec’y of Health & Hum. Servs.,
28 Fed. Cl. 516, 523 (1993).
However, there are situations in which compelling oral testimony may be more persuasive
than written records--for instance in cases where records are found to be incomplete or inaccurate.
Campbell, 69 Fed. Cl. at 779 (“like any norm based upon common sense and experience, this rule
should not be treated as an absolute and must yield where the factual predicates for its application
are weak or lacking”); Lowrie, 2005 WL 6117475, at *19 (“Written records which are, themselves,
inconsistent, should be accorded less deference than those which are internally consistent”)
(quoting Murphy, 23 Cl. Ct. at 733).
When witness testimony is used to overcome the presumption of accuracy afforded to
contemporaneous medical records, such testimony must be “consistent, clear, cogent, and
compelling.” Sanchez v. Sec’y of Health & Hum. Servs., No. 11-685V, 2013 WL 1880825 (Fed.
Cl. Spec. Mstr. Apr. 10, 2013)(citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90-2808V,
1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). In determining the accuracy and
completeness of medical records, the Court of Federal Claims has suggested four possible
explanations for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that happened
during the relevant time period; (2) the medical professional’s failure to document everything
reported to her or him; (3) a person’s faulty recollection of the events when presenting testimony;
or (4) a person’s purposeful recounting of symptoms that did not exist. La Londe v. Sec’y of Health
& Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1334 (Fed. Cir. 2014). A special
master making a determination whether to afford greater weight to contemporaneous medical
records or other evidence, such as testimony at a hearing must have evidence suggesting the
decision was a rational determination. Burns by Burns v. Sec’y of Health & Hum. Servs., 3 F.3d
415, 417 (Fed. Cir. 1993).
IV. Findings of Fact
I find that Petitioner experienced chronic left arm pain in the years before she received the
flu vaccination that is the subject of this litigation. There are several reasons for this finding.
First, I do not find Ms. Rosenblum to be a credible witness. Concerning Exhibits 6 and 8,
her explanation that she made 22 separate errors with respect to the arm where she focused her
massage treatments is unreasonable. Additionally, I do not find it credible that Ms. Rosenblum
remembered discrete massage therapy appointments years after the fact such that she was able to
differentiate between treating Petitioner for left arm pain (on February 25 and 26, 2016, May 26,
2016, October 1, 2016) and right arm pain on every other date.
With respect to Exhibits 5 and 12, I find that Petitioner received massage therapy treatment
for her left arm on October 2, 2017. In making this determination, I have concluded that the
massage therapy record purporting to treat Petitioner on 10/12/2017 was improperly altered. See
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in fact made this change, it stands to reason that she would have emailed it to Petitioner so that
Petitioner could have it filed in the record. The fact that no such communication exists is further
evidence that 1) Petitioner received a massage treatment on October 2, 2017; and 2) Ms.
Rosenblum did not make the alteration to Exhibit 5.
Ultimately, I do not find any of the alterations to the massage treatment records to be
credible evidence that Petitioner experienced right rather than left arm pain, or that she received
treatment on October 2, 2017. Instead, I credit the records as they were originally drafted. These
original, unaltered records demonstrate that Petitioner sought massage therapy treatment for left
arm pain on 26 occasions between May 29, 2014 and October 2, 2017. The preponderance of the
evidence establishes that Petitioner consistently received treatment for left arm pain in the years
prior to her vaccination; and further, that Petitioner presented to Ms. Rosenblum for massage
therapy treatment on October 2, 2017. Petitioner’s left arm pain preceded her October 11, 2017
vaccination.
The following is therefore ORDERED:
A status conference is scheduled for Monday, March 15, 2021 at 10:00 (EST) to discuss
this ruling.
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
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DOCUMENT 2: USCOURTS-cofc-1_19-vv-00034-1
Date issued/filed: 2021-05-10
Pages: 4
Docket text: PUBLIC DECISION (Originally filed: 4/1/2021) regarding 53 DECISION DISMISSING PETITION. Signed by Special Master Katherine E. Oler. (sl) Service on parties made.
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Case 1:19-vv-00034-UNJ Document 56 Filed 05/10/21 Page 1 of 4
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-34V
(Unpublished)
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SUSAN TEHENNEPE, * Special Master Katherine E. Oler
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Petitioner, *
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v. Filed: April 1, 2021
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SECRETARY OF HEALTH AND *
HUMAN SERVICES, * Petitioner’s Motion for a Decision;
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Dismissal of Petition; Vaccine Act
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Respondent.
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Leah Durant, Law Offices of Leah V. Durant, PLLC, for Petitioner
Voris Johnson, U.S. Department of Justice, Washington, DC, for Respondent
DECISION DISMISSING PETITION1
I. Procedural History
On January 4, 2019, Susan TeHennepe (“Petitioner”) filed a petition for compensation
under the National Vaccine Injury Compensation Program,2 alleging that she developed shoulder
injury related to vaccine administration (“SIRVA”) from the influenza vaccination she received
on October 11, 2017. Pet. at 1, ECF No. 1. Petitioner filed statements of completion on April 24,
2019 and June 24, 2019. ECF Nos. 10, 13.
1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted
on the Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. §
3501 (2012). This means the Decision will be available to anyone with access to the internet. As
provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the Decision’s inclusion of
certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen
days within which to request redaction “of any information furnished by that party: (1) that is a trade secret
or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files
or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”
Vaccine Rule 18(b). Otherwise, the Decision in its present form will be available. Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L.
No. 99-660, 100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) (“Vaccine
Act” or “the Act”). Individual section references hereafter will be to § 300aa of the Act (but will omit that
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In support of her Petition, Petitioner filed medical records and massage therapy records on
January 14, 2019 (Exs. 1-5), April 24, 2019 (Ex. 6), June 24, 2019 (Ex. 8), October 30, 2020 (Ex.
15), and December 3, 2020 (Ex. 22). Petitioner filed an affidavit on April 24, 2019. Ex. 7.
Petitioner filed supplemental affidavits on June 24, 2019 (Ex. 9), and on December 1, 2020 (Ex.
16).
On December 11, 2019, Chief Special Master Corcoran held a status conference. See
Scheduling Order on 12/13/2019, ECF No. 17. At this conference, Respondent raised concerns
regarding handwritten alterations that had been made to Petitioner’s massage therapy records. Id.
at 1. These alterations bear on the disputed issue regarding whether Petitioner’s injuries pre-dated
her vaccination. Id.
This case was transferred to me on January 29, 2020. ECF No. 23. On February 26, 2020,
Respondent filed his Rule 4(c) Report, stating that “this case is not appropriate for compensation
under the terms of the Vaccine Act.” Resp’t’s Rep. at 1, ECF No. 24. Contemporaneous with his
Report, Respondent filed a status report noting several instances where the massage therapy
records were altered. ECF No. 25. Respondent stated that:
It is not credible to [R]espondent that Ms. Rosenblum would have consistently, on
numerous occasions over the course of months and years, incorrectly documented
that [P]etitioner was complaining of left arm pain if, in fact, she was instead
complaining of right arm pain. Respondent therefore asks the Court to ignore the
alterations made by Ms. Rosenblum and find that the records as originally written,
contemporaneously at the time of treatment, are reliable and controlling.
ECF No. 24 at 3. Respondent further stated that, “In the event [the] Court believes it is necessary
to further develop the factual record before making a ruling on this issue, then [R]espondent
requests a fact hearing and the opportunity to question both [P]etitioner and Ms. Rosenblum.” Id.
On June 16, 2020, I held a status conference in this case. See Scheduling Order on
6/16/2019, ECF No. 28. I explained to Petitioner’s counsel, Ms. Durant, that I had concerns
regarding the alteration of Petitioner’s massage therapy records (Exs. 5, 6, and 8) and would like
to examine these records myself. See id. I therefore asked Ms. Durant to mail original copies of
these records to my chambers. See id. Ms. Durant agreed. See id. On July 16, 2020, Petitioner
filed electronic versions of these original massage therapy records. Exs. 12-14. On August 12,
2020, my law clerk reached out to Ms. Durant to ascertain the location of the original records, as
they had not yet been received by my chambers. See Informal Remark of September 28, 2020.
Ms. Durant stated that the “records were mailed via first-class US mail and were hand delivered
by myself to the US post office.” Id. To date, these original records have not been received.
On September 25, 2020, I held a status conference in this case to discuss the altered
massage therapy records. See Scheduling Order on 9/28/2020, ECF No. 31. I informed Ms. Durant
that I did not find the alterations credible and I was inclined to credit the records as originally
written as reliable and controlling. Id. at 4. I further informed Ms. Durant that, given my skepticism
regarding the alterations, I did not afford much weight to Ms. Rosenblum’s corrections. Id. Ms.
Durant indicated that even with the altered massage therapy records, Petitioner believed that
enough evidence existed to pursue her case. Id. Ms. Durant asked to file an expert report in order
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Case 1:19-vv-00034-UNJ Document 56 Filed 05/10/21 Page 3 of 4
to further Petitioner’s case. Id. Respondent’s counsel indicated that, regardless of the filing of any
expert reports, he would be filing a good faith/reasonable basis objection in this case. Id.
In the order following this status conference, I indicated that the veracity of the massage
therapy records needed to be ascertained prior to the filing of any expert reports. See Scheduling
Order on 9/30/2020, ECF No. 31. I therefore ordered the parties to file a joint status report
regarding their availability for a fact hearing to be conducted in December 2020 where Petitioner
and Ms. Rosenblum would be made available to testify. See id.
I held a fact hearing on December 8, 2020, via WebEx to determine the date of onset of
Petitioner’s shoulder pain. Ms. Leah Durant appeared on behalf of Petitioner and Mr. Voris
Johnson appeared on behalf of Respondent. I heard testimony from Petitioner, Lisa Rosenblum,
Jeffrey TeHennepe, Erin Short, Karen Brummer, Patricia Johnson, and Vicky Tataryn.
After the fact hearing, I asked Petitioner to file additional documentation. On January 25,
2021, Petitioner filed her text messages with Ms. Rosenblum, her emails with Ms. Rosenblum, and
checks that she wrote to Ms. Rosenblum. Exs. 23-29, ECF No. 46. Petitioner also filed the records
currently possessed by Ms. Rosenblum as Ex. 30.
On March 1, 2021, the parties filed a joint status report indicating that the record was
complete for a determination on onset. ECF No. 48.
On March 3, 2021, I issued findings of fact regarding onset. ECF No. 49. I found that “The
preponderance of the evidence establishes that Petitioner consistently received treatment for left
arm pain in the years prior to her vaccination; and further, that Petitioner presented to Ms.
Rosenblum for massage therapy treatment on October 2, 2017. Petitioner’s left arm pain preceded
her October 11, 2017 vaccination.” Id. at 13.
On March 15, 2021, I held a status conference with the parties to discuss my findings. See
Scheduling Order on 3/15/2021, ECF No. 50. Ms. Durant requested seven days to discuss my
findings with her client and to file a status report on how she would like to proceed. See id.
On March 22, 2021, Petitioner filed a status report stating she intends to file a motion to
dismiss her claim. ECF No. 51. On March 24, 2021, I ordered Petitioner to file her motion to
dismiss by March 31, 2021.
Petitioner filed the instant motion on March 31, 2021, stating “An investigation of the facts
and science supporting her case has demonstrated to petitioner that she will be unable to prove that
she is entitled to compensation in the Vaccine Program.” Pet’r’s Mot. at 1, ECF No. 52.
II. Conclusion
To receive compensation in the Vaccine Program, a petitioner must prove either (1) that
she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to his vaccination, or (2) that she suffered an injury that was actually caused by a
vaccine. See §§ 13(a)(1)(A) and 11(c)(1). Moreover, under the Vaccine Act, a petitioner may not
receive a Vaccine Program award based solely on her claims alone. Rather, the petition must be
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supported by either medical records or by the opinion of a competent medical expert. § 13(a)(1).
In this case, however, there is insufficient evidence in the record for Petitioner to meet her burden
of proof. Petitioner’s claim therefore cannot succeed and, in accordance with her motion, must be
dismissed. § 11(c)(1)(A).
As such, IT IS ORDERED THAT,
Petitioner’s motion for a decision dismissing her petition is GRANTED and the petition is
hereby DISMISSED. The Clerk shall enter judgment accordingly.
Any questions regarding this Order may be directed to my law clerk, Sydney Lee, by
telephone at 202-357-6347, or by email at Sydney_Lee@cfc.uscourts.gov.
IT IS SO ORDERED.
s/ Katherine E. Oler
Katherine E. Oler
Special Master
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