VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01751
Package ID: USCOURTS-cofc-1_19-vv-01751
Petitioner: N.L.
Filed: 2021-12-06
Decided: 2022-02-10
Vaccine: influenza
Vaccination date: 2016-12-02
Condition: left shoulder injury related to vaccination administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
N.L. filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging a Table claim for a left shoulder injury related to vaccine administration (SIRVA) caused by an influenza vaccine received on December 2, 2016. The petitioner reported left shoulder pain and limited range of motion within 24 hours of vaccination, and sought treatment from her primary care provider and an orthopedist. Medical records indicated mild subacromial subdeltoid bursitis and intact tendons, with the petitioner declining a cortisone injection. While she initially reported ongoing symptoms in January 2017, she did not complain of left shoulder pain or seek treatment for over two years, until July 2019, after retaining counsel. Respondent argued that the petitioner failed to establish residual effects of her injury for more than six months, as required by statute. The court agreed, noting the lack of evidence of ongoing symptoms between February 2017 and June 2019. Despite opportunities to provide evidence, the petitioner failed to demonstrate that she suffered the residual effects of her injury for more than six months or required inpatient 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-01751-0
Date issued/filed: 2022-02-10
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 12/06/2021) regarding 32 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-01751-UNJ Document 37 Filed 02/10/22 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1751V
UNPUBLISHED
N.L., Chief Special Master Corcoran
Petitioner, Filed: December 6, 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)
William Glenn Perry, The Perry Law Firm, P.A., Greenville, NC, for Petitioner.
Naseem Kourosh, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On November 12, 2019, N.L. 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 a Table claim - that she suffered a left shoulder injury related to
vaccination administration (“SIRVA”) caused-in-fact by the influenza (“flu”) vaccine she
received on December 2, 2016. Petition at 1, ¶¶ 2,18.
For the reasons set forth below, I hereby DENY entitlement in this case. Petitioner
has not preponderantly established that she suffered the residual effects of her alleged
SIRVA for more than six months. Section 11(c)(1)(D)(i) (statutory six-month requirement).
1 When this decision was originally filed, I advised my intent 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 filed a timely motion to redact certain information. This decision is being posted with Petitioner’s
name redacted to reflect initials only. Except for those changes and this footnote, no other substantive
changes have been made. This decision will be posted on the court’s website with no further opportunity to
move for redaction.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all Section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:19-vv-01751-UNJ Document 37 Filed 02/10/22 Page 2 of 6
I. Relevant Procedural History
Along with her petition, N.L. filed the medical records required under the Vaccine
Act. Exhibits 1-7, ECF 1; Section 11(c). Several weeks thereafter, she filed additional
documentation showing she received the flu vaccine in her left deltoid as alleged. Exhibit
8, ECF No. 8. The case was assigned to the Special Processing Unit (“SPU”). ECF No.
11.
Over the subsequent year, Respondent filed periodic status reports regarding the
medical review to be performed to analyze the claim, and Petitioner worked to finalize her
demand. See, e.g., Status Reports, ECF Nos. 16, 23. On February 12, 2021, Respondent
requested additional information regarding a reference in the medical records to a
possible civil action. ECF No. 24. In response, Petitioner filed an affidavit indicating that
she had attempted to negotiate a settlement with the vaccine administrator prior to
contacting Petitioner’s counsel, but had declined the offered amount. Affidavit at ¶ 2, filed
Mar. 14, 2021, ECF No. 25-1. She otherwise maintained no civil action had been filed by
herself or any other party. Id. at ¶¶ 5-6; see also Petition at ¶¶ 20-21.
On May 14, 2021, Respondent filed his Rule 4(c) Report asserting that
compensation was not appropriate in this case. ECF No. 28. Specifically, he maintained
Petitioner has failed to preponderantly establish that she suffered the residual effects of
her injury beyond January 2017 - less than two months post-vaccination. Id. at 7.
Respondent observed from the record eleven post-vaccination medical visits during 2017
through early 2019, at which Petitioner failed to complain of any left shoulder symptoms.
Id. at 3. Respondent thus requested that I dismiss Petitioner’s claim. Id. at 1, 8.
On June 1, 2021, I issued an order to show cause why I should not dismiss the
case on the grounds raised by Respondent. ECF No. 29. I informed Petitioner that her
claim could not proceed unless she provided sufficient evidence (to date not filed) to
establish that she suffered the residual effects of her injury for more than six months, or
suffered an in hospital surgical intervention. Id. at 6; see Section 11(c)(1)(D).
Petitioner requested additional time to respond to the order to show cause on two
occasions - July 22 and September 22, 2021. ECF Nos. 30-31. She has failed to respond
by the current deadline of November 22, 2021. Order, issued Sept. 22, 2021. The matter
is now ripe for resolution.
II. Medical History
The medical records establish that on December 28, 2016, Petitioner first reported
to her primary care provider (“PCP”), Sharon Robinson, M.D., left shoulder pain and
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Case 1:19-vv-01751-UNJ Document 37 Filed 02/10/22 Page 3 of 6
limited range of motion (“ROM”) after receiving the flu vaccine on December 2, 2016.
Exhibit 3 at 1. Dr. Robison observed that Petitioner was experiencing limited ROM,
specifically increased pain and difficulty raising her left arm higher than 40 degrees and
passively rotating past 110 degrees. Id. at 5. She prescribed Naproxen, daily ROM
exercises, and heat and cold therapy. Id. at 6.
When Petitioner returned to her PCP on January 16, 2017, she reported continued
left shoulder pain, described as throbbing pain at rest and increased pain when reaching
backwards. Exhibit 3 at 8. Dr. Robinson prescribed an MRI. Id. at 12. Performed on
January 24, 2017, the MRI showed intact tendons and no rotator cuff tear, but “a small
amount [of] subacromial subdeltoid bursal fluid collection.” The conclusion was “[m]ild
subacromial subdeltoid bursitis.” Id.
On January 31, 2017, Petitioner was seen for her left shoulder pain, described as
beginning within 24 hours of vaccination, by an orthopedist, Bruce D. Wilhelmsen, M.D.
at Orthopaedics East & Sports Medicine Center (“Orthopaedics East”). Exhibit 5 at 1-2.
At this visit, Dr. Wilhelmsen observed Petitioner had good ROM but “[wa]s a little bit
uncomfortable at the extremes of internal rotation.” Id. at 1. He also noted that Petitioner
could raise her thumb to the same level as exhibited on her right, uninjured side and “has
full abduction and forward flexion” with no pain with “resisted external rotation or
abduction.” Id. He added that the MRI showed a thin rotator cuff and “a little bit of fluid in
the subacromial space” but otherwise unremarkable findings. Dr. Wilhelmsen offered to
administer a cortisone injection, but Petitioner declined because she was going on a trip
to Mexico that week. Id.
When Petitioner returned to her PCP on February 28, 2017, she mentioned her
prior left shoulder pain but did not report any ongoing symptoms or seek any treatment.
Exhibit 3 at 16. The visit was for her annual examination, and her only complaint set forth
in this record was insomnia. Id. Testing and labs were performed, a psychotherapy
consult was arranged for Petitioner’s insomnia, Petitioner was instructed to follow-up with
her gynecologist regarding a mammogram, her hormone levels, and her hair loss, and a
pneumococcal vaccine was administered in Petitioner’s right deltoid. Id. at 16-37.
During the remainder of 2017 through early 2019, Petitioner visited her PCP eight
more times for treatment of a variety of conditions such as osteoporosis, high cholesterol,
insomnia, an abnormal mammogram, abdominal pain, and dizziness, headache, back
pain, leg cramping, and tingling in her hands after falling and hitting her head in the
shower. Exhibit 3 at 38-138. Other than a notation of deltoid tendinitis under the section
titled “Past Medical/Surgeries History” in the medical records from visits in 2017 and early
2018, however, there is no further mention of Petitioner’s prior left shoulder pain and
limited ROM. Id. at 35, 43, 67, 71, 81, 84, 88, 103. Even this notation of a past problem
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Case 1:19-vv-01751-UNJ Document 37 Filed 02/10/22 Page 4 of 6
is missing in medical records from visits on October 15, 2018, and April 9, 2019. Id. at
114-15, 128-29. Additionally, Petitioner received a pneumococcal vaccine in her left
deltoid on April 3, 2018 (id. at 102), and the records associated with this vaccination show
Petitioner’s blood pressure usually was measured using her left arm. Id. at 41, 63, 73, 88,
111, 118. Thus, these medical records contain no indication that Petitioner continued to
experience any of her earlier symptoms.
On December 19, 2018, and January 2, 2019, Petitioner visited Dr. Wilhelmsen,
complaining of discomfort and swelling in her left knee. Exhibit 5 at 3. There is no mention
of any ongoing left shoulder pain or limited ROM at these visits. Id. at 3-4.
Thus, after her initial January 2017 visit to Dr. Wilhelmsen – the month after the
relevant vaccination - Petitioner did not complain of or seek treatment for any left shoulder
symptoms until more than 29 months later, on July 1, 2019. At that visit, Petitioner was
seen by Christopher Barsanti, M.D., another orthopedist at Orthopaedics East. Exhibit 5
at 5. At this time, Petitioner described a left shoulder injury after receiving the flu shot on
December 2, 2016, and indicated she had hired an attorney “as she felt she was not
compensated enough for her injury.” Id. She acknowledged she “was somewhat better
but still has some discomfort.” Id. Upon examination, Petitioner exhibited near full ROM,
with a painful arc. Id.
In August 2019, Petitioner underwent another MRI and attended three sessions of
physical therapy. Exhibit 5 at 6-13. During this time, she rated her pain level as two out
of ten. Id. at 6. She was again offered a cortisone injection but declined. Id. at 11. She
also underwent a bone density test in August 2019 and received treatment for ankle
swelling on September 26, 2019 at her PCP. Exhibit 3 at 152-60.
On March 2, 2021, Petitioner returned to Orthopaedics East complaining of
bilateral shoulder pain, described as an “old problem” with onset six months ago. Exhibit
10 at 1. She was diagnosed with possible cervical radiculopathy and prescribed a Medrol
Dosepak. Id. at 2.
III. 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–
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Case 1:19-vv-01751-UNJ Document 37 Filed 02/10/22 Page 5 of 6
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.
IV. Analysis
Petitioner alleges that she suffered the residual effects of her injury for more than
six months, but does not address the mildness of the symptoms she was exhibiting on
January 31, 2017, or lack of treatment or even any mention of left shoulder symptoms in
the medical records from February 2017 through June 2019. Petitioner did not complain
of left shoulder pain again until July 1, 2019, after retaining Petitioner’s counsel.
Based on the record as it currently stands, it appears that the left shoulder pain
and limited ROM that Petitioner suffered post-vaccination had mostly if not entirely
resolved in February 2017. And there is no record evidence that Petitioner was still
experiencing any injury sequelae as of May or June 2017. Indeed, she did not experience
these symptoms again until mid-2019, after attempting to negotiate an informal
settlement with the vaccine administrator and then retaining Petitioner’s counsel.
The Vaccine Act prohibits me from finding a petitioner entitled to compensation
based upon the petitioner’s claims alone. Section 13(a). To date, Petitioner has provided
insufficient evidence to support her assertions of ongoing left shoulder symptoms from
February 2017 through early 2019, from two until 32 months post-vaccination, or to link
her later left shoulder pain to that suffered in late 2016 and early 2017. This inability to
satisfy the six-month severity requirement is fatal to the present claim – and the present
record does not permit me to conclude this requirement can be met.
V. Conclusion
To date, and despite ample opportunity, Petitioner has failed to provide
preponderant evidence that she suffered the residual effects of her 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 of Court shall enter judgment
accordingly.3
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.
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Case 1:19-vv-01751-UNJ Document 37 Filed 02/10/22 Page 6 of 6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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