VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00780
Package ID: USCOURTS-cofc-1_20-vv-00780
Petitioner: Sandra Francis
Filed: 2022-12-05
Decided: 2023-01-10
Vaccine: influenza
Vaccination date: 2017-10-27
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Sandra Francis filed a petition alleging she suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine she received on October 27, 2017. The core issue in this case was whether Ms. Francis met the statutory six-month sequelae requirement, meaning her injury persisted for more than six months after vaccination. The medical records showed that Ms. Francis experienced mild to moderate shoulder pain starting two weeks after her vaccination, which was treated conservatively. By January 2018, approximately two months post-vaccination, her condition was noted as improving. However, there was a significant gap in treatment records for nearly four months, and then another gap of eleven months. The medical records from June 2018, around the six-month mark post-vaccination, did not mention right shoulder pain, instead noting changes consistent with osteoarthritis. Later, in May 2019, Ms. Francis reported significant joint pain, and imaging revealed a rotator cuff tear and osteoarthritis, leading to surgery in August 2019. The respondent argued that the injury did not persist for six months and that later pain was likely due to worsening osteoarthritis. Ms. Francis contended her pain never resolved and that the absence of documentation did not negate her testimony. The Chief Special Master found that the substantial treatment gaps and the lack of contemporaneous documentation of persistent shoulder pain around the six-month mark meant Ms. Francis failed to prove the severity requirement by a preponderance of the evidence. Consequently, her claim was dismissed.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00780-0
Date issued/filed: 2023-01-10
Pages: 9
Docket text: PUBLIC DECISION (Originally filed: 12/05/2022) regarding 34 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
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Case 1:20-vv-00780-UNJ Document 37 Filed 01/10/23 Page 1 of 9
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-780V
UNPUBLISHED
SANDRA FRANCIS, Chief Special Master Corcoran
Petitioner, Filed: December 5, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Severity Requirement; Shoulder
HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA)
Respondent.
Edward M. Kraus, Law Offices of Chicago Kent, Chicago, IL, for Petitioner.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On June 26, 2020, Sandra Francis filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”), alleging that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (‘flu”) vaccine administered to her on
October 27, 2017. Petition, ECF No. 1 at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
For the reasons detailed herein, I find that Petitioner has not satisfied the six-month
sequelae requirement. Therefore, Petitioner cannot establish entitlement to
compensation, and this matter must be dismissed.
1 Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website in accordance with the E-Government Act of 2002, because it
contains a reasoned explanation for my determination. 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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:20-vv-00780-UNJ Document 37 Filed 01/10/23 Page 2 of 9
I. Relevant Procedural History
A year and a half after the claim’s initiation, Respondent filed his Rule 4(c) Report,
arguing that Petitioner could not satisfy the six-month sequalae requirement (or “severity
requirement”). ECF No. 26 at 7. To resolve the matter expeditiously, briefs addressing
the issue were ordered. ECF No. 27.
On May 2, 2022, Petitioner filed her brief on the severity requirement. ECF No. 28.
Petitioner acknowledged a significant treatment gap (as discussed below), but asserted
that it was not proof that the alleged SIRVA had resolved within six months of onset. Id.
at 11. Rather, Petitioner noted that the subsequent records are “replete with numerous
recordation that Ms. Francis had been experiencing shoulder pain since October 2017.”
Id. at 12. Respondent maintained that Petitioner’s vaccine-related shoulder injury did not
persist for six months. ECF No. 31 at 7. Specifically, Respondent noted that Petitioner’s
right shoulder had improved prior to six months post-vaccination, followed by a sixteen-
month period during which she sought no treatment for her right shoulder. Id. Respondent
further submitted that Petitioner’s later pain was likely due to “worsening osteoarthritis,
for which there is record evidence.” Id. at 7-8. Petitioner filed a reply, reiterating that her
testimony and records in 2019 satisfy the severity requirement. ECF No. 33.
The matter is now ripe for adjudication.
II. Factual Finding
At issue is whether Petitioner suffered from a shoulder injury for more than six
months. Section 11(c)(1)(D)(i) (statutory six-month sequelae requirement).
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding her claim. Section 13(a)(1)(A).
In making this determination, the special master or court should consider the record as a
whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical records or
by medical opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). Medical records created contemporaneously with
2

Case 1:20-vv-00780-UNJ Document 37 Filed 01/10/23 Page 3 of 9
the events they describe are generally considered to be more trustworthy. Cucuras v.
Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993); but see Kirby v.
Sec’y of Health & Human Servs., 993 F.3d 1378, 1382-83 (Fed. Cir. 2021) (clarifying that
Cucuras does not stand for proposition that medical records are presumptively accurate
and complete). While not presumed to be complete and accurate, medical records made
while seeking treatment are generally afforded more weight than statements made by
petitioner after-the-fact. See Gerami v. Sec'y of Health & Human Servs., No. 12-442V,
2013 WL 5998109, at *4 (Fed. Cl. Spec. Mstr. Oct. 11, 2013) (finding that
contemporaneously documented medical evidence was more persuasive than the letter
prepared for litigation purposes), mot. for rev. denied, 127 Fed. Cl. 299 (2014). Indeed,
“where later testimony conflicts with earlier contemporaneous documents, courts
generally give the contemporaneous documentation more weight.” Campbell ex rel.
Campbell v. Sec’y of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006); see United
States v. U.S. Gypsum Co., 333 U.S. 364, 396 (1948).
However, incomplete or inaccurate medical records may be outweighed by later
testimony, if such testimony is “consistent, clear, cogent, and compelling.” Camery, 42
Fed. Cl. at 391 (citing Blutstein v. Sec’y of Health & Hum. Servs., No. 90- 2808, 1998 WL
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). It is within the special master’s
discretion to determine whether to afford greater weight to medical records or to other
evidence, such as oral testimony surrounding the events in question that was given at a
later date, provided that such determination is rational. Burns v. Sec’y of Health & Hum.
Servs., 3 F.3d 415, 417 (Fed. Cir. 1993).
When the severity requirement is in question, Petitioner must show by
preponderant evidence that she “suffered the residual effects or complications of such
illness, disability, injury, or condition for more than 6 months after the administration of
the vaccine.” 42 U.S.C. § 300aa-11(c)(1)(D)(i); see Song v. Sec'y of Dep't of Health &
Human Servs., 31 Fed. Cl. 61, 65-66 (1994), aff'd, 41 F.3d 1520 (Fed. Cir. 2014) (noting
that a petitioner must demonstrate the six-month severity requirement by a
preponderance of the evidence). 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.” Moberly
v. Sec’y of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted). Finding that petitioner has met the severity requirement cannot be based on
petitioner’s word alone, though a special master need not base their finding on medical
records alone. See § 13(a)(1); see Colon v. Sec’y of Health & Human Servs., 156 Fed.
Cl. 534, 541 (2021).
3

Case 1:20-vv-00780-UNJ Document 37 Filed 01/10/23 Page 4 of 9
B. Analysis
After a review of the entire record, including Respondent’s Rule 4 Report and the
parties’ briefs, I find that Petitioner has not satisfied the six-month sequelae requirement.3
I specifically note the following facts:
• On October 27, 2017, Petitioner received a flu vaccine in her right arm. Ex.
5 at 3-4.
• On November 10, 2017 (two weeks after her vaccination), Petitioner
presented to Dr. Ayesha Cheema, an internist, complaining of mild to
moderate shoulder pain since her vaccination the prior month. Ex. 1 at 4.
Petitioner specifically reported localized pain and slight limitation in range
of motion. Id. Dr. Cheema found normal muscle mass and good range of
motion on examination, and assessed Petitioner with right anterior shoulder
pain, with a differential including “arthritis versus other,” and prescribed
Medrol Dosepak and Tylenol. Id. at 5. Petitioner was to follow up with Dr.
Cheema in one week. Id.
• On December 28, 2017, now two months after vaccination, Petitioner
presented to Dr. Lola Torres, an internist, and complained of right shoulder
pain since her vaccination. Ex. 11 at 12. She reported that her pain radiated
down her arm and across her back. Id. Upon examination, Dr. Torres found
limited range of motion, tenderness of the anterior shoulder, and positive
empty-can test. Id. at 14. Dr. Torres assessed Petitioner “likely tendonitis”
and “possible partial rotator cuff tear.” Id. Home exercises and over-the-
counter pain medication were recommended, along with imaging and
physical therapy if Petitioner’s symptoms did not improve. Id.
• Petitioner returned to Dr. Torres on January 11, 2018, for her right shoulder
pain. Ex. 4 at 6. Petitioner reported mild but improving pain, and Dr. Torres
noted that Petitioner’s shoulder was “getting better.” Id. at 8. Under
associated symptoms, Dr. Torres noted “no catching/locking…no radiation
down arm…weakness (right arm getting better.)” Id. Upon examination,
“limited ROM…but improved since last visit,” was noted. Because
Petitioner’s condition was gradually improving, Dr. Torres continued to
recommend home exercises and over-the-counter pain medication, along
with physical therapy and imaging if symptoms did not continue to improve.
Id.
3 While I have not specifically addressed every medical record, or all arguments presented in the parties’
briefs, I have fully considered all records as well as arguments presented by both parties.
4

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• Petitioner called Dr. Torres’s clinic on January 30, 2018, requesting a
physical therapy referral. Ex. 4 at 10. No follow-up from Petitioner or Dr.
Torres’s clinic was noted in the medical record submitted, however.
• There is a subsequent gap of almost four months in the medical records,
revealing no subsequent treatment. Six months from the late-October
vaccination would be on or around the end of April 2018.
• On June 4, 2018, Petitioner presented for Dr. Gabriel Maijub for her annual
exam. Ex. 7 at 9. Petitioner reported arthralgias and stiffness – location was
not documented Id. at 13. Petitioner’s musculoskeletal examination was
normal aside from “changes consistent with osteoarthritis” involving multiple
joints. Id. at 11, 14. Petitioner’s extremities were normal with “full ROM.” Id.
at 15. Right shoulder pain was not documented, and there is no mention of
any vaccine-related injury.
• There is another treatment gap in the record – this one approximately
eleven months long. On May 14, 2019, Petitioner presented to Dr. Maijub
for a joint pain referral. She ow ncomplained of joint pain “so bad she has
occasionally had to take a few of her husband’s floricet.” Ex. 7 at 3.
Petitioner reported arthralgias, joint swelling, neck pain, stiffness, and
bilateral hand pain. Id. at 6. On examination, Dr. Maijub noted cervical spine
pain and tenderness, changes consistent with osteoarthritis, and bilateral
swelling of Petitioner’s hands. Right shoulder pain was also noted. Id. at 7.
Dr. Maijub ordered x-rays of Petitioner’s neck, hands, and right shoulder.
Id. Petitioner’s x-rays showed advanced degenerative changes in her
cervical spine and foraminal stenosis. Id. at 27. Moderate-to-advanced
osteoarthritic changes in Petitioner’s hands and moderate arthritis in her
right acromioclavicular joint were noted. Id. at 29-30.
• On June 27, 2019, Petitioner presented to Parkersburg Orthopedic
Associates for her right shoulder pain. Ex. 9 at 3. Petitioner was seen by
Heidi Rusk, PA-C, and Dr. George Herriott III, and she reported that her
shoulder pain began after a flu vaccine in October of 2017, which was not
helped by OTC medications or a TENS unit. Id. Normal active and passive
range of motion was noted, though with pain; positive Neer’s, negative
Hawkins, and negative cross-body testing were also noted. Id. at 5. X-rays
taken in the office showed degenerative changes in Petitioner’s
acromioclavicular joint. An MRI was ordered, and a corticosteroid injection
and physical therapy referral were offered. Id. at 6; Ex. 2 at 7.
5

Case 1:20-vv-00780-UNJ Document 37 Filed 01/10/23 Page 6 of 9
• Petitioner underwent a right shoulder MRI on July 3, 2019. Ex. 2 at 4. The
MRI showed a distal supraspinatus full thickness tear, joint effusion
extending into the subacromial subdeltoid bursa, moderate degenerative
osteoarthritis at the acromioclavicular joint, and biceps tendinitis. Id. at 13-
14. Following the results of the MRI, a rotator cuff surgery was scheduled
for August 22, 2019 with Dr. Jeffrey McElroy. Id. at 21.
• On July 12, 2019, Petitioner presented to a rheumatologist, Dr. Jonathan
Krant, for osteoarthritis management. Ex. 8 at 12, 14. Upon examination,
Dr. Krant noted some limitation in right shoulder external rotation as well as
nodes in multiple finger joints. Id. at 15. Dr. Krant diagnosed Petitioner with
primary osteoarthritis and referred Petitioner for orthopedic assessment of
her right shoulder. Id. at 16.
• Petitioner followed-up with Dr. Krant for her osteoarthritis and osteoporosis
on July 30, 2019. Ex. 8 at 3. Petitioner complained of hip pain, osteoarthritic
pain, and right shoulder pain due to rotator cuff tear. Id. at 5. Petitioner was
scheduled for a bone density scan in one year. Id.
• On August 19, 2019, Dr. Jeffrey McElroy, Petitioner’s orthopedic surgeon,
examined Petitioner’s right shoulder, reviewed the MRI, and agreed that a
surgical repair of Petitioner’s rotator cuff and subacromial decompression
would be appropriate. Ex. 9 at 10.
• On August 22, 2019, Petitioner underwent right shoulder arthroscopy,
arthroscopic subacromial decompression, and rotator cuff repair. Pet. Ex. 9
at 12-13. During a post-operative orthopedic visit on August 29, 2019, it was
noted that Petitioner’s surgical incision was healing well and Petitioner had
full passive range of motion. She was referred to physical therapy. Id. at 17.
• On September 4, 2019, Petitioner began physical therapy and attended
eight sessions in total. Ex. 6 at 3-16. At her last visit on October 1, 2019,
Petitioner pain level was noted to be zero. Id. at 16.
• On October 30, 2019, Petitioner followed-up with Dr. Elroy. Ex. 9 at 24.
Petitioner reported some sharp pains in her right shoulder. Id. Petitioner’s
right shoulder forward flexion was noted to be 150 degrees. Id. at 26. Dr.
McElroy recommended Petitioner continue home exercises. Id. at 27.
6

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• On August 27, 2020, Petitioner presented for an annual exam during which
she had no complaints, and her physical exam was noted as normal. Ex. 13
at 5-8.
In addition to her records, Petitioner filed a personal affidavit in support of her
claim. Ex. 12. Petitioner explained that her pain was immediate upon vaccination. Id. ¶4.
She had difficulty using her arm and “relied on [her] husband for getting dressed.” Id. ¶5.
Petitioner affirmed that she sought care for her arm in Florida, where she spent the winters
with her husband. She presented to doctors in November of 2017, December of 2017,
and January of 2018, but was only treated conservatively with home stretching exercises,
OTC medication, rest, and ice. Id. ¶¶6-8.
At her January 11, 2018 appointment with Dr. Torres, Petitioner affirmed that she
was told her pain would improve with time. Ex. 12 at ¶8. Petitioner “trusted in the advice”
and “believed that [her] arm pain would improve over time.” Id. ¶9. She affirmed that she
continued to feel pain and stiffness in her right shoulder and her everyday activities were
affected. Once she and her husband returned to their home in West Virginia, she reported
her shoulder pain during her annual physical exam in June 2018. Id. ¶10. She was told
that her shoulder was due to arthritis. Id. As such, Petitioner “felt like no one would help.”
She “hoped it would simply improve” and “worked to adapt.” Id. ¶11.
According to Petitioner, her pain continued – waking her up at night and making
everyday activities difficult. She felt she could do nothing but “suffer through it.” Id. ¶12.
Almost a year later, in May of 2019, Petitioner “could no longer tolerate the pain” and
returned to her primary care physician complaining of shoulder pain and stiffness. Id. ¶13.
Petitioner then learned that an x-ray of her shoulder showed some arthritis, and an MRI
showed a rotator cuff tear in her right shoulder. Id. ¶¶14,16. In July of 2019, Petitioner
received a call from her orthopedist who recommended and scheduled her for surgery to
repair her rotator cuff. Id. ¶17. Petitioner underwent surgery on August 22, 2019 and
attended eight physical therapy sessions. Id. ¶¶19-20. Petitioner affirmed that she
continues so have difficulty with her right arm, including getting dressed and performing
house chores. Id. ¶23.
Respondent disputes whether Petitioner’s right shoulder pain in 2019 is associated
with Petitioner’s alleged shoulder injury related to her October 2017 vaccination. ECF No.
31 at 7. Respondent specifically notes that Petitioner’s right shoulder pain was gradually
improving in January 2018, and then Petitioner did not report or seek care for her right
shoulder for sixteen months - assuming the June 2018 treatment event was not intended
to address the alleged SIRVA. Id. at 7. Respondent specifically notes as well, however,
that there is no mention of right shoulder pain in Petitioner’s June 4, 2018 record (the
record most contemporaneous to six-months post-vaccination), only “changes consistent
7

Case 1:20-vv-00780-UNJ Document 37 Filed 01/10/23 Page 8 of 9
with osteoarthritis.” Id. at 3, 7. Respondent further suggests that Petitioner’s right shoulder
pain in May 2019 was related to arthritis. Id. at 7-8.
Petitioner, however, argues that her shoulder pain never resolved, and that records
following the treatment gap consistently indicate that she had been experiencing shoulder
pain since October 2017. ECF No. 28 at 12. She also contends that the June 4, 2018
record is not accurate and/or complete—she affirms that she reported her right shoulder
pain at that visit. ECF No. 28 at 11; ECF No. 33 at 2. Petitioner alleges that “absence of
reference to a condition is much less significant than a reference that negates that
condition’s existence,” and “there is nothing in the June 2018 record to negate Ms.
Francis’s testimony that she was experiencing right shoulder pain at that time.” ECF No.
28 at 11. Regarding the treatment gaps, Petitioner submits that “this issue is more
probative as to the issue of damages if anything.” Id.
Despite what Petitioner argues as an “issue of damages if anything,” there are two
substantial gaps in the medical record highly relevant to the disputed severity issue. The
first gap occurred between three-months and eight-months post-vaccination4 - and the
initial six month post-onset date would fall in this period. The second gap occurred
between eight-months and nineteen-months post-vaccination.5
While some compensated petitioners have delayed seeking treatment or
intermittently sought treatment, that is not the case here. Petitioner sought treatment for
three months (November 2017 – January 2018) and then did not see another physician
for five months. In addition, unlike cases where a petitioner cannot show treatment close
to the six-month “anniversary” (but can show some lingering sequelae later, or treatment
a bit after), here Petitioner’s next occasion to visit a physician in June 2018 yielded a
record that makes no mention of right shoulder pain. See Ex. 7 at 9-15. Then, an eleven-
month gap followed. The lengthy gaps in the record reasonably allow for the possibility
that other intervening issues or factors caused the later symptoms and reports of right
shoulder pain in May of 2019, despite Petitioner’s later references to her vaccination.
In addition, Petitioner’s affidavit provides little support for her claim, particularly as
it is uncorroborated. While I appreciate Petitioner’s argument that the absence of
documented right shoulder pain in the June 2018 medical record does not negate the
possibility of such pain, I cannot find the severity requirement satisfied on Petitioner’s
word alone. See Colon v. Sec’y of Health & Human Servs., 156 Fed. Cl. 534, 541 (2021).
Moreover, I do not find Petitioner’s affirmation cogent or compelling. If Petitioner was
4 Petitioner sought treatment for her right shoulder on January 11, 2018 and then did not see another
physician until June 4, 2018, “for her yearly Medicare physical.” ECF No. 28 at 3; Ex. 4 at 8; Ex. 7 at 9.
5 After seeing her primary care physician on June 4, 2018 for her yearly physical, Petitioner did not return
for additional treatment until May 14, 2019. Ex. 7 at 3, 9.
8

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suffering from right shoulder pain at her June 2018 visit (and had been suffering from pain
that affected her everyday activities for five months without any treatment or resolution),
why Petitioner would then again fail to see any physician for another eleven months is
difficult to understand. Petitioner affirms that she did not seek care because she “felt like
no one would help” and that she could do nothing but suffer through it, yet Petitioner did
not attend physical therapy, seek out any new physicians, or return to her primary care
physician. The record does not indicate any calls for referrals or requests for medication
to ease symptoms that allegedly interfered with Petitioner’s everyday activities.
In total, Petitioner did not receive treatment for sixteen months. Such a lengthy
treatment gap cannot be easily dismissed. Though Petitioner contends that there is
nothing in the record that negates her testimony of shoulder pain in June of 2018 or past
the six-months mark, I find the record alone does not preponderate despite her testimonial
contentions. At bottom, while it is clear Petitioner suffered some sort of shoulder pain
following her vaccination and experienced a rotator cuff tear and repair in 2019, there is
not preponderant evidence to satisfy the severity requirement.
Conclusion
Based on the entire record, I find that Petitioner has failed to provide preponderant
evidence to satisfy the six-month sequelae requirement. Petitioner’s claim is hereby
dismissed.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk
of the Court SHALL ENTER JUDGMENT in accordance with the terms of this Decision.6
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
6 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they
file notices renouncing their right to seek review.
9