Dimeo v. Secretary of Health and Human Services
19-1447
| Fed. Cl. | Nov 4, 2021Background
- Petitioner Elaine Dimeo received an influenza vaccine in her left deltoid on September 12, 2018 and reported immediate left shoulder pain.
- She had a prior left-shoulder post-vaccination episode in 2017 that resolved after a steroid injection.
- Early treatment (Sept–Oct 2018) included ED care with steroid injection, prednisone, orthopedic evaluation (diagnoses: bursitis, adhesive capsulitis), a cortisone injection, and physical therapy.
- By March 18, 2019 (about six months and one week post-vaccination) OrthoPA Dabkowski documented full range of motion but reported residual pain in cold/rain and persistent weakness; he described the aching as a likely remnant of inflammation and advised continued strengthening.
- Procedural posture: Petition filed Sept. 19, 2019 alleging SIRVA; Respondent conceded SIRVA but disputed that symptoms persisted for more than six months; Chief Special Master Corcoran found preponderant evidence of at least six months of residual effects and awarded compensation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petitioner’s vaccine-related residual effects continued for more than six months (Vaccine Act § 11(c)(1)(D)(i)) | Dimeo: contemporaneous records (notably 3/18/2019 ortho visit) show ongoing pain and weakness past six months | HHS: medical records do not establish that the injury lasted >6 months; duration is not met | Special Master: preponderant evidence shows residual effects persisted at least six months; entitlement to compensation for SIRVA granted |
Key Cases Cited
- Weddel v. Sec'y of Health & Human Servs., 100 F.3d 929 (Fed. Cir. 1996) (describing the Vaccine Act’s remedial purpose)
- Cloer v. Sec'y of Health & Human Servs., 654 F.3d 1322 (Fed. Cir. 2011) (discussing the Act’s intent and legislative history)
- Curcuras v. Sec'y of Health & Human Servs., 993 F.2d 1525 (Fed. Cir. 1993) (medical records are generally trustworthy evidence)
- Murphy v. Sec'y of Health & Human Servs., 23 Cl. Ct. 726 (Ct. Cl. 1991) (absence of a record reference is less significant than an explicit negation; records may be incomplete)
- Kirby v. Sec'y of Health & Human Servs., 997 F.3d 1378 (Fed. Cir. 2021) (rejecting a presumption that medical records are always complete and fully accurate)