VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-02045
Package ID: USCOURTS-cofc-1_20-vv-02045
Petitioner: Shana McDade
Filed: 2020-12-30
Decided: 2024-10-29
Vaccine: influenza
Vaccination date: 2019-11-05
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Shana McDade, a nurse, received an influenza vaccine on November 5, 2019. Approximately seventeen days later, she began experiencing left arm pain, numbness, and reduced range of motion, which she attributed to the vaccine. Her initial diagnosis was possible brachial neuritis secondary to the flu vaccine, and she received treatment including physical therapy. The case proceeded as a Table claim for SIRVA. The respondent argued that the petitioner had not established the severity requirement (residual effects for more than six months) and that her symptoms were not limited to the vaccinated shoulder, suggesting another condition might explain her symptoms. The court found that McDade did establish the severity requirement, as she received physical therapy through August 2020. However, the court dismissed the Table SIRVA claim because McDade's symptoms extended beyond the vaccinated shoulder to her elbow, wrist, hand, and fingers, and she was diagnosed with brachial neuritis, a condition that could explain her symptoms. The case was reassigned for adjudication as a causation-in-fact claim.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-02045-0
Date issued/filed: 2024-10-29
Pages: 7
Docket text: PUBLIC DECISION (Originally filed: 07/19/2024) regarding 42 Findings of Fact & Conclusions of Law ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:20-vv-02045-UNJ Document 51 Filed 10/29/24 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-2045V
SHANA MCDADE, Chief Special Master Corcoran
Petitioner, Filed: July 19, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Jamica Marie Littles, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW DISMISSING TABLE CLAIM1
On December 30, 2020, Shana McDade filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine
administration (“SIRVA”) following an influenza ("flu”) vaccine she received on November
5, 2019. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters (the “SPU”).
Although the record supports the conclusion that Petitioner likely suffered the
residual effects of her alleged injury for more than six months, Petitioner’s Table SIRVA
1 Because this Fact Ruling contains a reasoned explanation for the action taken in this case, it must be
made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Fact Ruling will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
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 (2018).

Case 1:20-vv-02045-UNJ Document 51 Filed 10/29/24 Page 2 of 7
claim must still be dismissed. Petitioner’s symptoms were not limited to the vaccinated
shoulder, and that there is evidence of a condition (other than SIRVA) that would explain
her symptoms. This may leave a causation-in-fact claim to be adjudicated, however.
I. Relevant Procedural History
On December 19, 2022, just under two years after the case was initiated,
Respondent filed a Rule 4(c) Report arguing that Petitioner had not established
entitlement to compensation. ECF No. 30. In particular, Respondent argued that
Petitioner could not establish that she suffered the residual effects of her injury for more
than six months – the Act’s “severity requirement.” Rule 4(c) Report at 7-8. Respondent
also argued that Petitioner’s claim for a Table SIRVA must fail because “another condition
or abnormality was present that would explain her left arm symptoms” and “her symptoms
were not limited to the left shoulder in which the vaccine was administered.” Rule 4(c)
Report at 8-10.
I ordered the parties to brief the issue of whether Petitioner has satisfied the
severity requirement. Petitioner filed her Motion for Ruling on the Record (“Mot.”) on June
15, 2023. ECF No. 35. Respondent filed a response (“Resp.”) on August 14, 2023. ECF
No. 41. The matter is now ripe for decision.
II. Factual History
Petitioner, a nurse, received the flu vaccine in her left deltoid on November 5, 2019.
Ex. 1 at 1. Seventeen days later, she saw her primary care physician (“PCP”) for left arm
pain. Ex. 2 at 3. She described “immediate shooting pain and numbness in [her] fingers
while the injection was being given” and “burning pain in [the] entire extremity when [the]
vaccine needle was inserted deep.” Id. at 3-4. The doctor noted that Petitioner’s
symptoms began “in the last three weeks after receiving a flu vaccine in the left arm.” Id.
at 4. On exam, Petitioner had reduced range of motion in her left elbow, wrist, and hand,
and pain and weakness at her elbow. Id. at 3. She was assessed with “possible brachial
neuritis secondary to flu vaccine injection,” prescribed neurontin, and referred to a
neurologist and for physical therapy. Id. at 3-4.
Petitioner had an initial physical therapy evaluation on December 5, 2019. Ex. 3 at
31. The referring diagnosis was “left arm distal neuropathic pain, possible brachial
neuritis.” Id. Petitioner reported that her pain began “3 weeks ago (Nov 2019) following a
flu shot” and that her pain was “severe from shoulder to elbow.” Id. The plan of care
included treatments 2-3 times per week for eight weeks. Id. at 33. Petitioner attended
three additional physical therapy appointments on January 2, 2020, January 7, 2020, and
March 11, 2020. Id. at 11, 17, 19. At her last visit, Petitioner continued to complain of left
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arm pain and stiffness. Id. at 11. Her status was “progressing” and she was not discharged
from treatment. Id. at 12.
Petitioner states that she learned of the International Sports Science Association
(“ISSA”), and an in-home physical therapist associated with ISSA named Joseph Dorn,
from a friend. Ex. 13 at ¶5. She had a physical therapy evaluation with Mr. Dorn on March
2, 2020. Ex. 4. During her evaluation, Petitioner reported left arm pain, “with periodic
spasms down the arm,” following her flu shot. Id. at 2. She reported difficulty performing
her work duties as a registered nurse and sleep disturbances. Id. Mr. Dorn assessed
Petitioner with “deltoid bursitis,” and proposed a treatment plan spanning several weeks
“or longer.” Id. at 3. Mr. Dorn indicated the “therapy start date” as March 2, 2020, and the
“therapy end date” as December 28, 2020. Id. at 6. Petitioner decided to continue her
treatment with him rather than continuing her prior physical therapy treatment. Id. at ¶5-
7.
Petitioner states that she continued having physical therapy sessions with Mr. Dorn
in her home through August 2020. Ex. 13 at ¶8. She provided receipts indicating
payments of $150.00 per session for the following dates of service: March 2, 2020 (the
date of the evaluation), March 3, 2020, March 16, 2020, April 6, 2020, April 2020 (no day
given), April 27, 2020, May 4, 2020, May 11, 2020, May 25, 2020, June 8, 2020, June 15,
2020, June 22, 2020, July 6, 2020, July 13, 2020, July 20, 2020, August 3, 2020, August
10, 2020, and August 24, 2020. Ex. 8 at 3-21. Petitioner also provided two invoices for
physical therapy – dated March 3, 2020 and August 24, 2020 – that indicate both that Mr.
Dorn worked for ISSA and provided “mobile physical therapy.” Id. at 1-2.
There are no additional records of treatment for Petitioner’s left arm pain.
III. Applicable Legal Standards
The Vaccine Act requires that a petitioner demonstrate that “residual effects or
complications” of a vaccine-related injury continued for more than six months. Vaccine
Act § 11(c)(1)(D)(i). A petitioner cannot establish the length or ongoing nature of an injury
merely through self-assertion unsubstantiated by medical records or medical opinion. §
13(a)(1)(A). “[T]he fact that a petitioner has been discharged from medical care does not
necessarily indicate that there are no remaining or residual effects from her alleged
injury.” Morine v. Sec’y of Health & Human Servs., No. 17-1013V, 2019 WL 978825, at
*4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019); see also Herren v. Sec’y of Health & Human
Servs., No. 13-1000V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014).
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Section 11(c)(1).
A special master must consider, but is not bound by, any diagnosis, conclusion, judgment,
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test result, report, or summary concerning the nature, causation, and aggravation of
petitioner’s injury or illness that is contained in a medical record. Section 13(b)(1).
“Medical records, in general, warrant consideration as trustworthy evidence. The records
contain information supplied to or by health professionals to facilitate diagnosis and
treatment of medical conditions. With proper treatment hanging in the balance, accuracy
has an extra premium. These records are also generally contemporaneous to the medical
events.” Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir.
1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, at *19. And the Federal Circuit recently “reject[ed] as
incorrect the presumption that medical records are accurate and complete as to all the
patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 381, 391 (1998). The Court later outlined 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 & Human Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed.
Cl. at 391 (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering
such testimony must also be determined. Andreu v. Sec’y of Health & Human Servs., 569
F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs., 991 F.2d
1570, 1575 (Fed. Cir. 1993).
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
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Londe, 110 Fed. Cl. at 204 (citing § 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of
Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that 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).
IV. Findings of Fact
A. Severity
To satisfy the Act’s severity requirement, Ms. McDade must demonstrate that she
continued to suffer the residual effects of her vaccine-related injury until at least May 5,
2020 - six months after her likely post-vaccination onset. There is no dispute that
Petitioner consistently sought treatment through the end of her first course of physical
therapy on March 11, 2020 – just over four months after her vaccination. Respondent
argues that there is “no objective or contemporaneous evidence that establishes that PT
Dorn provided in-home post-vaccination PT services to Petitioner.” Resp. at 7. In support,
Respondent highlights the fact that Petitioner has not provided individual treatment notes
from Mr. Dorn, and that there is no independently-authenticated evidence of his
treatment. Rule 4(c) Report at 7. Respondent also notes that Mr. Dorn provided a signed
certification that he had no records responsive to Petitioner’s medical records request.
Mot. at 6.
This argument suggests, incorrectly, that petitioners may rely only on
independently authenticated evidence, even when such evidence is not available. But the
Vaccine Program considers a wide array of evidence – and even though reliability can be
impacted by questions of authenticity, here those questions have answers. This is
because Petitioner’s counsel filed an affidavit outlining her attempts to obtain medical
records from Mr. Dorn. Ex. 14. Counsel noted that she was told that Mr. Dorn was having
health problems and was no longer operating his business. Id. at ¶3. Thus, the simple
fact that Mr. Dorn did not possess copies of these records at the time he signed the
certification in 2021 does not require the conclusion that the documents provided by
Petitioner are not reliable, or that she did not continue to have treatment for her left arm
pain after March 11, 2020.
Otherwise, Petitioner has documented the treatment she received from Mr. Dorn,
and when it occurred. See Ex. 4, 8. While additional evidence could be helpful, the records
filed by Petitioner, at a minimum, suggest that she continued treatment with Mr. Dorn
through August 24, 2020, which is more than six months after onset. Ex. 8. Petitioner
provided a plan of care from Mr. Dorn, dated March 2, 2020, which recommended 20
treatments and indicated that treatment could continue as long as December 28, 2020.
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Ex. 4 at 3, 6. Thereafter, she provided receipts from Mr. Dorn that document a series of
appointments without significant gaps - 18 visits over a six-month period - suggesting that
treatment largely followed the documented treatment plan. Ex. 4; Ex. 8 at 3-21. Petitioner
further stated that she preferred the in-home therapy because it was more convenient
and provided one-on-one attention that she felt was not provided by her previous physical
therapist. Ex. 13 at ¶7. Other than the fact that Mr. Dorn himself did not provide any
treatment records in response to the medical records request, there is no evidence in the
record that Petitioner did not receive the treatment alleged.
As a result, the evidence supports a finding that severity was established. At most,
the lack of detail about the specific treatment Petitioner received during the period
between March 11 - August 24, 2020, could impact what the proper pain and suffering
calculation should be.
B. Table Claim
Despite my severity finding, there are greater problems with the Table claim in this
case. The medical records reveal, and Petitioner does not dispute, that Petitioner
complained of symptoms throughout her left upper extremity – her shoulder plus her
elbow, wrist, hand, and fingers, and was also diagnosed with (and treated for) a nerve
injury. Mot. at 2. At her first medical appointment, Petitioner had reduced range of motion
in her elbow, wrist, and hand and weakness and pain in her elbow. Ex. 2 at 3. She was
assessed with brachial neuritis, given a prescription for neurontin, and referred to a
neurologist and for physical therapy. Id. at 4. When she began physical therapy, Petitioner
described “severe pain from [her] shoulder to her elbow.” Ex. 3 at 31. She had reduced
range of motion and strength in both her shoulder and elbow on exam. Id. at 32.
Because the medical records reveal both that Petitioner’s symptoms were not
limited to her vaccinated shoulder and that there was another condition present that could
explain her symptoms, Petitioner cannot preponderantly establish the third or fourth QAI
for a Table SIRVA. The claim can only proceed as a causation-in-fact claim (and may in
fact be more properly advanced as a claim for brachial neuritis after receipt of the flu
vaccine).
Conclusion
Petitioner has established that she suffered the residual effects of her alleged
vaccine-related injury for at least six months. However, as I also find that Petitioner cannot
succeed on a Table claim, Petitioner’s Table SIRVA claim is dismissed. The case will be
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reassigned to a Special Master outside of the Special Processing Unit (“SPU”), for
adjudication as a causation-in-fact claim.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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