In shoulder injury claims under the Vaccine Act, the judges often give great weight to contemporaneous medical records. When records contain small gaps, they will often look to fill in the gaps by inference from other medical records.
Labor v. Secretary of Health and Human Services
Case at a glance:
SYMPTOMS: pain in both shoulders, mobility impairment
INJURY: SIRVA, muscle sprain, inflammation, tissue pinching (impingement)
VACCINE: flu shot (influenza vaccine)
VACCINATION DATE: 10/19/2018
ADMINISTRATOR: primary care provider
INJURY DURATION: over 2 years, 1 month
CASE DURATION: still ongoing since 1/11/2021
OUTCOME: case ongoing
Injured by a flu shot? Click here to learn more.
Ms. Labor Suffers a Flu-Shot Shoulder Injury from Improper Flu Shot Shoulder Pain after Injection
Ms. Labor suffered a shoulder injury on October 18, 2018, after undergoing an influenza vaccination. Ms. Labor had not suffered any previous injuries affecting her shoulder specifically, but she had previously experienced health issues, including some orthopedic pain, notably back pain.
Ms. Labor visited her primary care provider within days of her injection, reporting symptoms including arm and neck pain, inability to reach overhead, reduced range of motion in both shoulders. This was consistently attributed to Ms. Labor's improper flu shot shoulder pain.
Ms. Labor continued to report similar symptoms to various medical providers for over two years.
Pain in Both Arms Means a More Difficult Case
In analyzing the medical records, the court made two findings, one positive and one negative for Ms. Labor.
First, regarding onset of symptoms, the judge found that Ms. Labor's shoulder pain started within forty-eight hours of her flu shot injection. The judge specifically acknowledged that there was one record that noted her pain started on "approximately" October 22, which would have been about three days after her injection. Nevertheless, the judge noted that the record stating the date was "approximate" added some ambiguity, and the remainder of the record consistently linking the onset of symptoms to the flu shot injection overall outweighed the one piece of ambiguous evidence.
Second, the judge determined that the case was not qualified to participate in the "special processing unit" program (the "SPU"), which fast tracks some vaccine injury shoulder cases, because her pain was not isolated to the affected shoulder, rather it was present in both shoulders. SPU cases require less evidence for a claimant to prevail and often resolve faster. But to be in the SPU, a claimant must meet certain requirements. One of those requirements is that the symptoms of the vaccine injury are isolated to the affected shoulder where the vaccine was injected. Since Ms. Labor's pain affected both shoulders, her case does not qualify for the SPU. Instead, she will be required to prove the causal relationship between her symptoms and the flu shot that injured her.
"Although she will need to provide evidence that accounts for symptoms she experienced, it is possible that Petitioner may be able to prove that the flu vaccine caused her symptoms or significantly aggravated her condition. And the three-day symptoms onset is still close enough to vaccination to constitute an appropriate time frame. However, Petitioner will need to provide this additional evidence to continue with her claim." – Chief Special Master Brian H. Corcoran
TAKEAWAY: Not all Vaccine Injury Claims Are Equal, but All Valid Claims Can Be Compensated
Not every case is eligible for the SPU "fast track." Nevertheless, if you are injured by a flu shot or other vaccine, you may be eligible for compensation under the Vaccine Act, your case might just be harder to prove.
Review the full decision here: Labor v. Secretary of Health and Human Services
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