VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01591
Package ID: USCOURTS-cofc-1_19-vv-01591
Petitioner: Curtis Scott Turley
Filed: 2019-10-11
Decided: 2021-04-27
Vaccine: influenza
Vaccination date: 2017-10-16
Condition: left shoulder injury related to vaccination administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Curtis Scott Turley filed a petition alleging a Table claim for a left shoulder injury related to vaccine administration (SIRVA) after receiving the influenza vaccine on October 16, 2017. He sought medical treatment for his shoulder pain on two occasions in late October 2017, approximately two weeks after vaccination. The medical records from these visits indicated mild symptoms, with no pain upon palpitation and normal range of motion and strength. Petitioner claimed he did not seek further medical treatment due to concerns about his employment as a fireman, fearing that any reported injury could lead to termination or light duty designation. He relied on affidavits from his brother, mother, and wife to support his assertion of ongoing symptoms. However, the court found that the medical records did not substantiate the severity of the alleged injury, and the witness statements were largely recitations of what Petitioner told them, lacking independent corroboration. The court noted that Petitioner continued to seek treatment for other conditions, such as diabetes, without apparent concern for his employment. Ultimately, the court determined that Petitioner failed to provide preponderant evidence that he suffered the residual effects of his injury for more than six months, a statutory requirement for compensation, or that the injury required inpatient hospitalization and surgical intervention. Consequently, the case was dismissed for failure to prosecute.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01591-0
Date issued/filed: 2021-04-27
Pages: 8
Docket text: PUBLIC DECISION (Originally filed: 03/26/2021) regarding 31 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (sw) Service on parties made.
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Case 1:19-vv-01591-UNJ Document 32 Filed 04/27/21 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1591V
UNPUBLISHED
CURTIS SCOTT TURLEY, Chief Special Master Corcoran
Petitioner, Filed: March 26, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Dismissal; Statutory Six-Month
HUMAN SERVICES, Requirement; Insufficient Evidence;
Influenza (Flu) Vaccine; Shoulder
Respondent. Injury Related to Vaccine
Administration (SIRVA)
David Charles Richards, Christensen & Jensen, P.C. Salt Lake, UT, for Petitioner.
Meghan Murphy, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On October 11, 2019, Curtis Scott Turley 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 the Table claim that he suffered a left shoulder injury
related to vaccination administration (“SIRVA”) after receiving the influenza (“flu”) vaccine
on October 16, 2017. Petition at 1, ¶¶ 3,18.
For the reasons set forth below, I hereby DENY entitlement in this case. Petitioner
has not preponderantly established that he suffered the residual effects of his alleged
SIRVA for more than six months. Section 11(c)(1)(D)(i) (statutory six-month requirement).
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 1:19-vv-01591-UNJ Document 32 Filed 04/27/21 Page 2 of 8
I. Relevant Procedural History
Following the completion of the Pre-Assignment Review process, Petitioner was
ordered to file medical records establishing that he suffered the residual effects of his
injury for more than six months or required an in-hospital surgical procedure. ECF No. 7.
In response, he indicated that he could not do so because he had sought medical
treatment for his injury for only two weeks post-vaccination, or until October 31, 2017.
Status Report, filed Dec. 2, 2019, at 1-2, ECF No. 8. Petitioner nevertheless requested
additional time to file witness affidavits to support his assertions. Id. at 2. To that end, on
March 6, 2020, Petitioner filed affidavits from his brother, wife, and mother. Exhibits 7-9,
ECF No. 12. On March 11, 2020, the case was assigned to the Special Processing Unit
of the Office of Special Masters. ECF No. 14.
Prior to the initial status conference, Petitioner was ordered to file additional
medical records which appeared to be outstanding, specifically medical records from any
post-vaccination medical care even if not for treatment of his alleged SIRVA injury. ECF
No. 17. It was noted that, prior to vaccination, Petitioner routinely sought medical care for
his diabetes and other conditions. Id. at 2. Petitioner was informed that, as a general
matter, Vaccine Program claimants are required to file medical records from their primary
care providers and/or any relevant specialist from three years prior to vaccination to the
present. Id. (citing Guidelines to Practice Under the National Vaccine Injury Program,
which can be found on the court’s website at www.uscfc.uscourts.gov).
On June 23, 2020, Petitioner filed a status report indicating he had filed all medical
records required by Section 11(c). ECF No. 20. During the July 20, 2020 initial status
conference, Petitioner’s counsel explained that Petitioner had been reluctant to seek
medical treatment for his SIRVA because his occupation as a fireman obligated him to
report treatment that might impact his job performance. Nevertheless, it was noted that
Petitioner’s claim could not succeed if he could not establish the “severity” requirement
through some form of evidentiary submission. Additionally, it was stressed that Petitioner
still needed to file his post-vaccination medical records, even if not related to treatment of
his SIRVA.
During the subsequent three months, Petitioner filed his post-vaccination medical
records and a supplemental affidavit. Exhibits 10-13, ECF Nos. 22-25. These medical
records showed treatment for other issues, but contained no evidence of any symptoms
related to Petitioner’s SIRVA. In his supplemental affidavit, Petitioner attested to concerns
related to his employment as a fireman which prevented him from seeking medical care,
provided the dates of his employment from 2016 to the present, and asked to present
testimony regarding his ongoing symptoms. Exhibit 13 at ¶¶ 8-11, 16.
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On December 16, 2020, I issued an order to show cause, finding that the record
as it currently stood was not supportive of the severity component of Petitioner’s claim.
ECF No. 29. I informed Petitioner that his claim could not proceed unless Petitioner
provided sufficient evidence (to date not filed) to establish that he suffered the residual
effects of his injury for more than six months, or suffered an in hospital surgical
intervention. Id. at 6; see Section 11(c)(1)(D). I allowed him 60 days to provide additional
evidence to satisfy the statutory six-month requirement. Order to Show Cause at 4.
On January 26, 2021, Petitioner filed a response to the order to show cause. ECF
No. 30. In it, he reiterated his prior argument that he continues to experience left shoulder
pain but has not sought medical treatment due to the fear it will affect his employment
status. Id. at 1. Maintaining that the evidence provided by his mother, brother, and wife is
sufficient to support his assertions of ongoing symptoms and to overcome the lack of
evidence in his medical records, Petitioner requested that I conduct an evidentiary
hearing to assess the credibility of the affiants in this case. Id. at 2-3.
The matter is now ripe for adjudication.
II. Medical History
The medical records establish that, prior to vaccination, Petitioner was routinely
seen for follow-up regarding his type 1 diabetes, other usual conditions, and periodic
certifications for his employment, from late 2015 through the end of August 2018, at the
two clinics within the University of Utah’s Health Care System.3 Exhibit 5. During this time,
it appears that Petitioner’s employer, the South Jordon Fire Department, limited his
activities to paramedic duties only due to his difficulties controlling his blood sugar levels
after losing insurance coverage for the cost of his insulin pump. Id. at 81. On August 30,
2017, Petitioner received another evaluation to determine if he could continue his
paramedic duties. It was noted that he had obtained an insulin pump again and had been
seen by an endocrinologist, who believed that Petitioner had established the ability to
control his blood sugar levels sufficiently to perform his current duties, as well as
awareness of the health issues posed if he failed to do so. Id.
On October 16, 2017, Petitioner received a flu vaccine in his left deltoid,
administered by personnel from the Intermountain Pharmacy Services at a Davis County
Health Fair. Exhibit 2 at 2; see also Exhibit 1 at ¶ 4 (explaining the details regarding
Petitioner’s vaccination). Twelve days later, on October 28, 2017, he sought treatment for
3 For all appointments prior to August 30, 2017, Petitioner was seen at the South Jordan Health Center.
Exhibit 5 at 1-80. For the August 30, 2018 appointment, he was seen at Redwood Health Center. Id. at 81-
101.
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left shoulder pain from Nicole Summers, D.O. at Kaysville Creekside InstaCare. Exhibit 3
at 1.
At this visit, Petitioner reported soreness for one to two days which improved, then
continued pain. Exhibit 3 at 1. Upon examination, he exhibited no pain upon palpitation,
full range of motion (“ROM”) with pain at the extremes, and normal strength. Id. at 1-2.
While acknowledging that local inflammation could have worsened Petitioner’s condition,
Dr. Summers attributed his left shoulder pain to underlying tendonitis. She instructed him
to rest his arm, take Aleve, and return in one to two weeks if his pain did not resolve.
According to this record, Petitioner’s ongoing conditions included uncontrolled diabetes,
high blood pressure and cholesterol, and exercise induced asthma. Id. at 1.
Three days later, on October 31, 2017, Petitioner sought treatment of his left
shoulder pain from Christopher Bell, M.D. at McKay Dee Orthopedics and Sports
Medicine Clinic. Exhibit 4. At that time, Petitioner described dull, sharp pain at the top of
his left shoulder, rated at a level of seven out of ten. Exhibit 4 at 1. However, upon
examination, he exhibited full ROM, no pain upon palpitation, and full ROM. Id. at 2. Dr.
Bell opined that Petitioner’s pain was likely due to the flu vaccine he received, which he
described as improperly placed and discussed multiple treatment options: continuing his
current restrictions and pain medication, participating in a home exercise program or
formal physical therapy (“PT”), or undergoing a cortisone injection or MRI. Petitioner
opted to take ibuprofen and to engage in a home exercise program. Id. at 3. This record
lists the same ongoing conditions noted in the October 18, 2017 medical record. Id. at 1.
His post-vaccination medical records show that Petitioner was seen routinely for
his diabetes, often described as uncontrolled. Exhibit 12. On October 12, 2018, Petitioner
was treated for difficulties swallowing thought to be attributed to a foreign body in his
esophagus which passed while he was in the emergency room. Exhibit 11 at 75. He was
instructed to follow-up with a gastrointestinal specialist and told he should undergo an
endoscopy. Id. In August 2019, Petitioner visited the emergency room after experiencing
chest discomfort, described as pain located in the left side of his chest and radiating
laterally, while climbing to the eighth floor of a burning building with his equipment. Exhibit
11 at 5-21; Exhibit 12 at 275-77.
III. Affidavits
There are no medical record entries indicating Petitioner sought treatment for his
left shoulder pain after October 31, 2017, several weeks post-vaccination, nor does
Petitioner so allege. Instead, he relies on statements made by his brother, wife, and
mother in their affidavits and his assertions that he experienced ongoing symptoms but
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avoided seeking medical care due to his concern regarding any potential effect on his
employment as a fireman.
A. Petitioner’s Affidavits
In his initial affidavit, Petitioner provided an account of his vaccination, left shoulder
pain, and treatment during October 2017 which matches the information contained in his
medical records. Exhibit 1 at ¶¶ 4-7 (Petitioner’s affidavit executed Sept. 21, 2018). He
also asserted that he “continue[d] to have intermittent pain and lack of mobility in [his] left
shoulder.” Id. at ¶ 8; accord. id. at ¶ 12. Reporting that he still performs the home
exercises prescribed by his orthopedist, Dr. Bell, to strengthen his rotator cuff (id. at ¶¶
7-8), Petitioner maintained that he “did not follow-up regularly with [his] physician because
[he] perceived the recommendation would be continued exercise” (id. at ¶ 10). Petitioner
assessed his condition as “stable with mild improvement” (id. at ¶ 9) and indicated that
he “d[id] not anticipate that [he] will see any additional improvement” (id. at ¶ 11).
In his supplemental affidavit, Petitioner provided more detail regarding the reason
for his lack of medical care, asserting that he “did not seek any additional medical
treatment . . . because of [his] type of employment and no medical insurance for a time
period.” Exhibit 13 at ¶ 2. He maintained that “[i]t is not uncommon for firefighters to hide
illnesses or injuries in order to maintain their active duty status and employment” (id. at ¶
9) as “any indication of injury leads to a designation of ‘light duty’” which can lead to
termination (id. at ¶ 8). Petitioner asserted that “it is more difficult to obtain a position as
a firefighter than it is to be accepted to medical school.” Id. at ¶ 11. In addition to
volunteering at the Plain City Fire Department from December 2014 through July 2019,
Petitioner indicated he has been employed as follows:
August 2016 – December 2018: as an EMT at Gold Cross Ambulance
January 2018 – June 2018: at Fire Academy
June 2018 - ??: at Roy Fire Department
January 2019 – October 2019: at Ogden Fire Department
April 2020 – current: at Roy Fire Department and Juab County EMS
Id. at ¶¶ 3-7.
B. Family Member Affidavits
Petitioner also provided affidavits from his brother, mother, and wife. Exhibits 7-9.
Although these affidavits contain a few instances of reported pain and limited ROM to
third parties, these statements are based upon information provided by Petitioner to his
family members. For example, his brother recalled that Petitioner complained of left
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shoulder pain and limited ROM during an April 2018 camping trip. Exhibit 7 at ¶ 6.
However, his brother did not describe any instances when he observed the effects of
these limitations. Similarly, his mother recalled that Petitioner expressed a concern he
would not pass his physical examination, specifically the bench press and push-up portion
when testing for a position with the Ogden Fire Department in January 2019. Exhibit 9 at
¶¶ 6-7. Yet it appears Petitioner passed the physical examination as he began working
for the Ogden Fire Department in January 2019. Exhibit 13 at ¶ 6.
In her affidavit, Mrs. Turley recounted that Petitioner complained of left shoulder
pain the day he received his flu vaccine and that she observed he could not lift his arm
two days thereafter. Exhibit 8 at ¶¶ 7-8. Regarding any later symptoms, she stated only
that Petitioner “has continued to experience intermittent pain and lack of mobility.” Id. at
¶ 9. She provided no specific examples or details regarding the bases for this assertion.
Petitioner’s wife recalled him saying, In November 2018, that he should not receive a flu
vaccine the next year. Id. at ¶ 10.
IV. Applicable Legal Standards
As stated by Congress when amending the Vaccine Act in 1987, the six-month
severity requirement was designed “to limit the availability of the compensation system to
those individuals who are seriously injured from taking a vaccine.” H.R. REP. 100-391(I),
at 699 (1987), reprinted in 1987 U.S.C.C.A.N. 2313–1, 2313–373. The only exception is
the alternative added in 2000, a showing that the vaccine injury required inpatient
hospitalization and surgical intervention. Children’s Health Act of 2000, Pub. L. No. 106–
310, § 1701, 114 Stat. 1101, 1151 (2000) (codified as amended at 42 U.S.C. § 300aa–
11(c)(1)(D)(iii)). This exception was added to allow compensation in intussusception
cases which often required surgical intervention but then resolved in less than six months.
Id.
V. Analysis
The record incontrovertibly establishes that Petitioner sought medical care for his
left shoulder pain on only two occasions, approximately two weeks after vaccination. The
medical records from these visits reveal Petitioner’s symptoms were less severe than
those normally seen in SIRVA cases. At both visits, Petitioner exhibited no pain upon
palpitation and normal strength and ROM. Petitioner’s report of significant pain, rated as
seven out of ten is the only evidence of a more substantial injury, and it is undercut by
the observations of the physicians who treated Petitioner. Additionally, the
characterization of a mild injury is reinforced by Petitioner’s choice of home exercises and
ibuprofen from the various treatments proposed to him by Dr. Bell. Given that this October
31, 2017 visit occurred more than two months before Petitioner started at the Fire
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Academy, it would have been reasonable for him to have chosen more aggressive
treatment such as a cortisone injection, MRI imaging, and/or formal PT, had his symptom
been significant.
While Petitioner’s concern for his employment status is understandable, there is
evidence in the medical record which undercut this explanation for his reluctance to seek
treatment. Other conditions, such as his diabetes and exercised induced asthma, which
could also have affected Petitioner’s ability to perform his duties as a fireman, are well
documented in his medical records. There is no indication that Petitioner was reluctant to
seek treatment for these disorders out of concern for how it would impact his job.
Thus, throughout 2018 and 2019, Petitioner continued to obtain medical care for
his other ongoing conditions, specifically his diabetes. On two occasions he visited the
emergency room - in 2018 for difficulties swallowing, and in 2019 for chest pain. When
he complained of left sided chest pain which radiated laterally, he could have mentioned
any left shoulder pain or limited ROM he was experiencing but did not.
Additionally, there is no evidence that Petitioner’s ability to perform his fireman
duties was negatively affected by alleged ongoing left shoulder pain. Given the physical
requirements of the job, it is unrealistic to expect someone with a continuing SIRVA injury
to perform without negative consequences for more than three years. Even when
Petitioner reported other difficulties, such as the chest pain he experienced in 2019 when
climbing to the eighth floor of a burning building with his equipment, he failed to mention
any left shoulder issues. There is no indication that Petitioner failed any of the strenuous
physical training and examinations required of firefighters.
There is otherwise no evidence in Petitioner’s medical records to support
Petitioner’s claim of intermittent pain and limited ROM. And careful scrutiny of the witness
statements provided by Petitioner reveal that they are typically recitations of assertions
that he made, rather than contemporaneous recollection of instances in which the
Petitioner actually informed a third party of his health status. Thus, they have limited
probative value.
The Vaccine Act prohibits me from finding a petitioner entitled to compensation
based upon the petitioner’s claims alone, unsubstantiated by medical records or by
medical opinion. Section 13(a). As I stated in my order to show cause, Petitioner has
provided no evidence to substantiate severity which is not based upon his personal
assertions. And allowing Petitioner or other third parties to testify at a fact hearing would
not cure this deficiency, since it would remain the case that severity was not corroborated
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by fact evidence, but instead supported only by witnesses recounting what Petitioner told
them.4 Accordingly, Petitioner’s inability to establish severity is fatal to his claim.
VI. Conclusion
To date, and despite ample opportunity, Petitioner has failed to provide
preponderant evidence that he suffered the residual effects of his injury for more than six
months or suffered an in hospital surgical intervention. Section 11(c)(1)(D).
Petitioner was informed that failure to provide preponderant to satisfy the Vaccine
Act’s severity requirement would be treated as either a failure to prosecute this claim or
as an inability to provide supporting documentation for this claim. Accordingly, this case
is DISMISSED for failure to prosecute. The clerk shall enter judgment accordingly.5
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4 I note as well that I am not bound to hold a hearing in any event simply because Petitioner requests I do
so. Pursuant to Section 12(d)(3) and Vaccine Rule 8, special masters determine the format for evidence
and argument in vaccine cases, and need not adhere to the standards for evaluation of a summary
judgment motion in all cases. Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d 1362, 1366 (Fed.
Cir. 2020); see also Vaccine Rule 8(d).
5 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.
8