VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-00593
Package ID: USCOURTS-cofc-1_16-vv-00593
Petitioner: Jeffrey Schafer
Filed: 2016-01-25
Decided: 2021-02-19
Vaccine: influenza
Vaccination date: 2014-10-15
Condition: right shoulder injury
Outcome: entitlement_granted_pending_damages
Award amount USD: 

AI-assisted case summary:
Jeffrey Schafer filed a petition on January 25, 2021, alleging that he suffered a right shoulder injury as a result of an influenza vaccination administered on October 15, 2014. He stated that almost immediately after receiving the injection, he began to suffer pain in his right shoulder, making it difficult to move and use his arm, and was unable to continue working as a painter. His experts, Dr. G. Russell Huffman and Dr. Marko Bodor, opined that he developed Shoulder Injury Related to Vaccine Administration (SIRVA) and that the vaccine caused his injury. The court found that petitioner provided preponderant evidence that the flu vaccine caused his right shoulder injuries, satisfying the three prongs of the Althen test for causation-in-fact. The court noted that SIRVA was not on the Vaccine Injury Table for petitions filed before March 21, 2017, thus requiring proof of causation. The court found that petitioner established a sound medical theory for SIRVA causation, a logical sequence of cause and effect showing the vaccine was the reason for the injury, and a proximate temporal relationship between the vaccination and the injury. Entitlement to compensation was granted, and a separate damages order will issue.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_16-vv-00593-0
Date issued/filed: 2019-11-07
Pages: 7
Docket text: PUBLIC ORDER (Originally filed: 08/28/2019) Regarding 57 Findings of Fact & Conclusions of Law. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made.
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Case 1:16-vv-00593-UNJ Document 61 Filed 11/07/19 Page 1 of 7
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-0593V
Filed: August 28, 2019
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
JEFFREY SCHAFER, *
*
Petitioner, *
v. * Vaccine Act; Fact Ruling;
* Six Month Residual Requirement;
SECRETARY OF HEALTH * Influenza (Flu) Vaccine; Shoulder
AND HUMAN SERVICES, * Injury Related to Vaccine Administration
* (SIRVA); Special Processing Unit (SPU)
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
ORDER DENYING RESPONDENT’S MOTION TO DISMISS AND FACT RULING ON
SIX MONTH REQUIREMENT1
Dorsey, Chief Special Master:
On May 19, 2016, Jeffrey Schafer (“petitioner”) 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 he suffered a right shoulder injury as a
result of an influenza (“flu”) vaccine administered to him on October 15, 2014.3 The
case was assigned to the Special Processing Unit of the Office of Special Masters.
1 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This
means the 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, the undersigned is required 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).
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
3 The petition alleges that petitioner received his flu vaccination on October 6, 2014. However, petitioner’s
exhibit 6 from Walgreens Pharmacy indicates that petitioner received the vaccine on October 15, 2014.

Case 1:16-vv-00593-UNJ Document 61 Filed 11/07/19 Page 2 of 7
After a review of the petition and supporting documents, respondent filed his
Rule 4(c) report contesting entitlement and motion to dismiss (“Motion to Dismiss” or
“Motion”), asserting that petitioner had not established that he suffered from the residual
effects of his alleged vaccine-related injury for more than six months after vaccination
as required by the Vaccine Act. Motion to Dismiss (ECF No. 30). Petitioner filed a
response to the Motion to Dismiss as well as a supplemental affidavit in which he
explained the reason he failed to continuously seek treatment for his injury. (ECF Nos.
33-34). Respondent’s Motion was denied and petitioner was ordered to file an expert
opinion. (ECF No. 36).
After reviewing petitioner’s expert report, on May 9, 2019, respondent filed a
Renewed Motion to Dismiss (“Renewed Motion”) reasserting that petitioner had failed to
establish that petitioner suffered the residual effects of his alleged vaccine-related injury
for more than six months after vaccination. (ECF No. 54). For the reasons discussed
herein, respondent’s Renewed Motion is DENIED.
I. Procedural History
On May 19, 2016, petitioner filed a petition alleging that a flu vaccine he received
on October 15, 2014 caused him to suffer a right shoulder injury. (ECF No. 1). On July
10, 2017, respondent filed his Rule 4(c) report contesting entitlement and Motion to
Dismiss arguing that the evidence does not support a finding that petitioner suffered the
residual effects of his alleged injury for more than six months after administration of the
vaccine, or that treatment of petitioner’s alleged vaccine-related injury resulted in
inpatient hospitalization and surgical intervention. (ECF No. 30). Respondent
concluded that petitioner is unable to fulfill the requirements of 42 U.S.C. § 300aa-
11(c)(1)(D) and that his petition must be dismissed. Id.
Petitioner filed a response to the Motion to Dismiss (“Petitioner’s Response”) as
well as a supplemental affidavit on August 29, 2017. (ECF Nos. 33-34). In the
supplemental affidavit, petitioner explained why he did not seek medical treatment for
his right shoulder in the 21 months following his final physical therapy session in March
2015. (ECF No. 33).
On March 8, 2018, the undersigned issued an Order Denying Respondent’s
Motion to Dismiss and Scheduling Order (“March 8, 2018 Order”). (ECF No. 36).
Noting that petitioner’s supplemental affidavit called into question whether his early
shoulder symptoms are related to the symptoms he exhibited during a medical
appointment that took place over two years post-vaccination (see Pet. Ex. 7 at 1),
petitioner was ordered to produce an expert report. (ECF No. 36).
In addition, in petitioner’s response to Respondent’s Rule 4(c) report and Motion to Dismiss, petitioner
states that he received the flu vaccine on October 15, 2014, thus the date of vaccination does not appear
to be in dispute.
2

Case 1:16-vv-00593-UNJ Document 61 Filed 11/07/19 Page 3 of 7
On March 19, 2018, petitioner filed an amended petition alleging that he suffered
a shoulder injury related to vaccine administration (“SIRVA”) Table injury.4 (ECF No.
37). Then, on October 9, 2018, petitioner filed his expert report. Petitioner’s Exhibit
(“Pet. Ex.”) 11. In response, on May 9, 2019, respondent filed a Renewed Motion to
Dismiss (“Renewed Motion”) arguing that petitioner remained unable to fulfill the
requirements of 42 U.S.C. § 300a-11(c)(1)(D) and that petitioner’s claim must be
dismissed. (ECF No. 54).
Petitioner filed a response to the Renewed Motion (“petitioner’s Second
Response”) on May 23, 2019. (ECF No. 55). In petitioner’s Second Response,
petitioner reasserted that he suffered the residual effects of his vaccine-related injury for
more than six months and that his case is supported by medical records, affidavits, an
expert opinion, and “common sense.” Id. at 3.
This order and fact-finding will address whether petitioner has satisfied the six-
month severity requirement of the Vaccine Act.
II. Factual History
Petitioner was thirty years old when he received a flu vaccination in his right arm
at a Walgreen’s Pharmacy, in Ravenna, Ohio, on October 15, 2014. Petitioner’s Exhibit
(“Pet. Ex.”) 4; Pet. Ex. 6. His pre-vaccination medical history includes anxiety since
childhood, depression, and substance abuse. See generally Pet. Ex. 2.
On November 6, 2014, three weeks and one day after vaccination, petitioner
presented to AxessPointe complaining of “shoulder pain from shot” with “shooting
pain/weakness/decreased [range of motion]” in his right deltoid. Pet. Ex. 3 at 1.
Petitioner reported to the nurse practitioner that the flu injection site was two
fingerbreadths from the top of the shoulder, and his physician noted that petitioner
received the vaccine at the proper injection site. Id. On exam, petitioner demonstrated
normal active range of motion with no tenderness or induration with palpitation of the
injection site. Id. Petitioner was assessed with unspecified myalgia and myositis of the
right deltoid and instructed to follow up in one month if his pain continued. Id. at 1-2.
On November 17, 2014, petitioner was seen at Robinson Memorial Hospital’s
General Adult Clinic, by Karen Barton, M.D., for “right lateral shoulder pain acute onset
since flu vaccine 6 weeks ago.” Pet. Ex. 2 at 7. Petitioner stated the pain occurred
“within seconds of the injection,” and he has since then experienced constant right
shoulder pain without distal weakness or numbness. Id. He described the pain as
“tolerable, aching, and tender.” Id. A trial of naproxen and muscle relaxants did not
help. Id. Petitioner was assessed with “right shoulder pain” and referred to physical
therapy (“PT”). Id at 9. No imaging was ordered.
4 The revised Vaccine Injury Table, adding SIRVA as a Table injury, governs petitions filed under the
Vaccine Act on or after March 21, 2017. Because this claim was filed on May 19, 2016, petitioner must
proceed on a causation-in-fact claim. 82 Fed. Reg. 6294 (Jan. 19, 2017) (to be codified at 42 C.F.R. pt.
100).
3

Case 1:16-vv-00593-UNJ Document 61 Filed 11/07/19 Page 4 of 7
On November 21, 2014, petitioner had an initial PT assessment for right shoulder
pain at Robinson Rehab Center & Sport Clinic. Pet. Ex. 1 at 4. Petitioner returned to PT
on November 24, 2014 where he reported deep pain, with pain levels ranging from 4.5
to 9. Id. at 3. Pain was worse when lifting or performing activities of daily living. Id.
Petitioner also attended PT on December 1, 2014 and on February 3, February 10,
February 17, and March 3, 2015. Pet. Ex. 1 at 5, 7-9.
The records reflect that petitioner had his last PT session on March 24, 2015, at
which time he reported that his shoulder had been getting stronger until the past
weekend when his pain increased due to “sleeping wrong.” Pet. Ex. 1 at 2. Petitioner’s
range of motion in the right shoulder was abnormal.5 The physical therapist noted that
PT would be put on hold until the petitioner saw the physician. Ex. 1 at 2, 10. Petitioner
was discharged from PT on April 23, 2015. Id. at 10. In total, from November 21, 2014
until March 24, 2015, petitioner attended eight PT appointments and cancelled or was a
“no show” for 11 appointments. See generally Pet. Ex. 1.
On December 21, 2016, petitioner presented at AxessPointe and was seen by
Dr. Edward Scott. Pet. Ex. 7 at 1. He was diagnosed with shoulder tendonitis. Id.
Although the record does not specify whether this malady was present in his left or right
shoulder, it does reflect that petitioner was referred to PT to evaluate and treat for
improved range of motion. Id. at 3. On January 26, 2017, petitioner was seen at
University Hospitals Rehabilitation Services for PT, where his diagnosis was right
shoulder tendonitis. Pet. Ex. 9 at 1. Petitioner reported having chronic right shoulder
pain and weakness. Id. An examination noted decreased range of motion in the right
shoulder. Id. at 2. Petitioner failed to show for his scheduled PT session on January
30, 2017. Id. at 4.
III. Affidavit Testimony Regarding Six Month Requirement
In petitioner’s affidavit, filed on August 29, 2017, petitioner explained that he stopped
going to PT in April 2015 because he thought Medicare6 would limit the number of
sessions he could have. Pet. Ex. 10 at 1-2. Petitioner “wanted to save those visits if
pain and lack of motion became more serious.” Id. Petitioner further explained that he
“still suffered from pain and lack of motion from April 2015 until December 2016 when I
5 Petitioner’s range of motion (“ROM”) in his right shoulder was assessed as: flexion 155°; abduction
128°; internal rotation 40°; and external rotation 55°. Id. at 2. Normal shoulder complex flexion ROM
values for adults vary from about 165 to 180 degrees; normal shoulder complex abduction ROM values
for adults vary from about 170 to 180 degrees; normal shoulder complex medial (internal) rotation ROM
values for adults vary from about 70 to 90 degrees; and normal shoulder complex lateral (external)
rotation) ROM values for adults vary from about 90 to 100 degrees. CYNTHIA C. NORKIN & D. JOYCE
WHITE, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 72, 80, 84, 88, 5th ed. (2016).
6 In petitioner’s Second Response it is noted that “[t]he affidavit mistakenly states that [p]etitioner was on
Medicare instead of Medicaid.” Petitioner’s Second Response at 1.
4

Case 1:16-vv-00593-UNJ Document 61 Filed 11/07/19 Page 5 of 7
returned to physical therapy” and that he continued to experience the residual effects of
his injury. Id. at 2.
IV. Petitioner’s Expert Report
Petitioner submitted an expert report from Dr. G. Russell Huffman on October 9,
2018. Pet. Ex. 11. Dr. Huffman is a board-certified physician and serves as both the
Director of the University of Pennsylvania Shoulder and Elbow Fellowship and as an
Associate Professor of Orthopaedic Surgery at the Hospital of the University of
Pennsylvania, University of Pennsylvania School of Medicine. Pet. Ex. 12 (Curriculum
Vitae of Dr. Huffman). Dr. Huffman has expertise in shoulder injuries and has
contributed to numerous publications on the subject. Id. at 11–18.
In his expert report, Dr. Huffman opined that “[petitioner’s] injury fits within the
established criteria for a SIRVA.” Pet. Ex. 11 at 3. Specifically, Dr. Huffman determined
that petitioner had no history of pain, inflammation or dysfunction of the affected
shoulder prior to vaccine administration; that petitioner’s pain occurred “within the
specified time frame”; that petitioner’s pain and reduced range of motion were limited to
the shoulder in which the vaccine was administered; and that there is no other condition
or abnormality present that would explain petitioner’s symptoms. Id. at 3-4.
Additionally, Dr. Huffman opined “within a reasonable degree of medical
certainty, [petitioner] documented a temporal association between the vaccination being
administered and subsequent onset of right shoulder injury of lasting significant
proportions.” Id. at 4. He noted that PT records document “persistent pain and
measurable functional limitations.” Id. at 3. Dr. Huffman acknowledged that “[t]he
history in this case is limited by a lapse in treatment after April 2015 and before
December 2016”, but ultimately determined “[b]y the records and by [petitioner’s]
affidavit, this appears to be related to [petitioner’s] limited resources and his family
responsibilities.” Id. at 4.
V. Discussion
Under the Vaccine Act, a petition for compensation must contain “supporting
documentation, demonstrating that the person who suffered [a vaccine related injury] ...
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). The burden is on the petitioner to establish, by a preponderance
of the evidence, the persistence of a vaccine-caused injury for longer than six months.
Song v. Sec'y of Health & Human Servs., 31 Fed. Cl. 61, 65–66, aff'd, 41 F.3d 1520
(Fed.Cir.1994). However, dismissal is not appropriate if it appears the parties
reasonably contest the length of time that petitioner has suffered from the effects of his
alleged vaccine injury. See, e.g., Faup v. Sec’y of Health & Human Servs., No. 12-87V,
2015 WL 443802, at *4 (Fed. Cl. Spec. Mstr. Jan. 13, 2015).
5

Case 1:16-vv-00593-UNJ Document 61 Filed 11/07/19 Page 6 of 7
Although a petitioner cannot establish the length or ongoing nature of an injury
merely through his self-assertion, the fact that petitioner has been discharged from
medical care does not necessarily indicate that there are no remaining or residual
effects from his alleged injury. See, e.g., Herren v. Sec’y of Health & Human Servs.,
No. 13-1000V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014)(finding that
petitioner suffered from residual symptoms that, due to their mild nature, did not require
medical care). See also Wright v. Sec’y of Health & Human Servs., No. 16-0498V, at 7
(Fed. Cl. Spec. Mstr. July 16, 2019)(explaining that in H.S. v. Sec’y of Health & Human
Servs., No. 14-1057V, 2005 WL 1588366 (Fed. Cl. Spec. Mstr. Mar. 13, 2015) and
Faup v. Sec’y of Health & Human Servs., No. 12-87V, 2015 WL 443802) (Fed. Cl. Spec.
Mstr. Jan. 13, 2015) “the doctors’ concern about the presence of a vaccine-injury, as
evidenced by continuing physical restrictions and ongoing medication, were found to be
residual effects of the injuries, even if the patient was asymptomatic at the time of these
continuing effects.”).
As noted in the March 8, 2018 Order, there appears to be no dispute that
petitioner received the flu vaccine on October 15, 2014, and that he must show that his
alleged injuries continued through at least April 15, 2015. Herren, 2014 WL 3889070, at
*2; see also Hinnefeld v. Sec’y of Health & Human Servs., No. 11-328V, 2012 WL
1608839, at *4-5 (Fed. Cl. Spec. Mstr. Mar. 30, 2012)(dismissing case where medical
history revealed that petitioner’s Guillain-Barré syndrome resolved less than two months
after onset).
The medical records demonstrate that petitioner first sought treatment for
shoulder pain on November 6, 2014: three weeks and one day after vaccination. Pet.
Ex. 3 at 1. Petitioner again reported shoulder pain on November 17, 2014 and promptly
followed up with PT on November 21, 2014. Pet. Ex. 2 at 7; Pet. Ex. 1 at 4. Petitioner
continued his PT, albeit sporadically, until March 24, 2015: five months and nine days
after vaccination. Pet. Ex. 1 at 2. The PT records during this timeframe indicate
decreased range of motion and functional deficits. See generally Pet. Ex. 1.
While there is a PT record dated April 23, 2015, it does not indicate that
petitioner was present on this date and does not include an assessment of petitioner’s
condition. Instead, it merely indicates that petitioner was to be discharged.
On December 21, 2016, petitioner again sought treatment for shoulder symptoms
– specifically, shoulder tendonitis. Pet. Ex. 7 at 3. There was a considerable interval
between petitioner’s final PT session on March 24, 2015 and his December 21, 2016
medical appointment, thus, petitioner was ordered to file an expert report and affidavit
addressing the lapse in care.
Petitioner’s affidavit offers some corroboration of the claim that petitioner suffered
from his injury for more than six months. It also provides an explanation as to why
petitioner stopped attending PT. Based on a review of the records and affidavit
testimony, Dr. Huffman opined that petitioner had “pain immediately upon administration
6

Case 1:16-vv-00593-UNJ Document 61 Filed 11/07/19 Page 7 of 7
of the vaccination” and “experienced shoulder pain and limitations for a period
exceeding 6 months.” Pet. Ex. 11 at 3.
This case represents a “close-call” in terms of finding whether petitioner suffered
the residual effects of his injuries for more than six-months. “In the Vaccine Program,
petitioners are accorded the benefit of close calls.” Roberts v. Sec’y of Health & Human
Servs., No. 09-427V, 2013 WL 5314698, at *10 (Fed. Cl. Aug. 29, 2013). However,
what favors a ruling for petitioner is not just his affidavit, but also the unlikelihood that
petitioner’s shoulder symptoms would have resolved within 22 days, which is the
amount of time between petitioner’s last documented PT appointment on March 24,
20157 and April 15, 2015 (six months after petitioner’s October 15, 2014 vaccination).
Additionally, while there is some question regarding whether petitioner’s shoulder
tendonitis, as documented in a medical note from December 21, 2016, was a residual
symptom of petitioner’s vaccination, given Dr. Huffman’s expert opinion, the
undersigned finds that the totality of the evidence preponderates in petitioner’s favor.
VI. Conclusion
Thus, the undersigned finds, based on the record as a whole, that petitioner has
established that he suffered the residual effects of his vaccine-related injury for at least
six months as required by the Vaccine Act. Therefore, Respondent’s Motion to Dismiss
is DENIED.
The parties are encouraged to consider an informal resolution of this claim.
Petitioner shall file a joint status report by no later than Friday, September 27, 2019,
updating the court on the status of parties’ progress informally resolving this claim.
Any questions about this Order or claim shall be directed to OSM staff attorney,
Francina Segbefia, at (202) 357-6358, or by email at:
Francina_Segbefia@cfc.uscourts.gov.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
7 Notably, on March 24, 2015, the record suggests petitioner’s pain had increased over the past weekend.
Pet. Ex. 1 at 2.
7

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DOCUMENT 2: USCOURTS-cofc-1_16-vv-00593-1
Date issued/filed: 2021-02-19
Pages: 13
Docket text: PUBLIC RULING (Originally filed: 1/25/2021) regarding 91 Ruling on Entitlement. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made.
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Case 1:16-vv-00593-UNJ Document 93 Filed 02/19/21 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: January 25, 2021
* * * * * * * * * * * * * * * * * * * * * * * * *
JEFFREY SCHAFER, * PUBLISHED
*
Petitioner, * No. 16-0593V
*
v. * Special Master Nora Beth Dorsey
*
SECRETARY OF HEALTH * Ruling on Entitlement; Causation-in-Fact;
AND HUMAN SERVICES, * Influenza (“Flu”) Vaccine; Shoulder Injury
* Related to Vaccine Administration
Respondent. * (“SIRVA”).
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On May 19, 2016, Jeffrey Schafer (“petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42
U.S.C. § 300aa-10 et seq. (2012).2 Petitioner alleges that he suffered a right shoulder injury as
1 Because this Ruling contains a reasoned explanation for the action in this case, the undersigned
is required 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). This means the 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, the undersigned agrees that the
identified material fits within this definition, the undersigned will redact such material from
public access.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this Ruling to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.

Case 1:16-vv-00593-UNJ Document 93 Filed 02/19/21 Page 2 of 13
the result of an influenza (“flu”) vaccination administered on October 15, 2014.3 Amended
(“Am.”) Petition at 1 (ECF No. 37).
After carefully analyzing and weighing the evidence presented in this case in accordance
with the applicable legal standards, the undersigned finds that petitioner provided preponderant
evidence that the flu vaccine caused petitioner’s right shoulder injuries, which satisfies his
burden of proof under Althen v. Secretary of Health & Human Services, 418 F.3d 1274, 1280
(Fed. Cir. 2005). Accordingly, petitioner is entitled to compensation.
I. PROCEDURAL HISTORY
Petitioner filed his petition on May 19, 2016, alleging that he sustained right shoulder
injuries caused by a flu vaccine administered on October 15, 2014. Petition at 1-2 (ECF No. 1);
Am. Petition at 1-2. The early procedural history from May 2016 through August 2019 was set
forth in the undersigned’s Fact Ruling and will not be repeated here. See Order Denying
Respondent’s Motion to Dismiss and Fact Ruling on Six Month Requirement dated Aug. 28,
2019 (“Fact Ruling”) dated Aug. 28, 2019, at 2-3 (ECF No. 57).
After the undersigned issued her Fact Ruling, the parties engaged in settlement
discussions. Joint Status Report (“Rept.”), filed Sept. 27, 2019 (ECF No. 58). Respondent was
also ordered to file an amended Rule 4(c) Report. Order dated Nov. 19, 2019 (ECF No. 63).
After respondent missed multiple deadlines to update the Court on the parties’ progress towards
informal resolution and to file an amended Rule 4(c) Report, the undersigned issued an order to
show cause. Order to Show Cause dated Apr. 6, 2020 (ECF No. 71).
On April 7, 2020, respondent filed a response to the order to show cause and his amended
Rule 4(c) Report. Respondent’s Amended Rule 4(c) Report and Response to Order to Show
Cause (“Resp. Am. Rept.”), filed Apr. 7, 2020 (ECF No. 72). In his amended Report, respondent
maintained that this case was not appropriate for compensation. Id. at 3. He also acknowledged
that Shoulder Injury Related to Vaccine Administration (“SIRVA”) was added as a Table claim
for all vaccines effective for petitions filed on or after March 21, 2017, and thus, because
petitioner filed before that date, he had to proceed on a causation-in-fact claim and was “not
entitled to the presumption that he [had] proven a recognized injury by merely satisfying the
Table criteria.” Id. at 1 n.1, 6-7.
3 The amended petition alleges petitioner received his flu vaccination on October 6, 2014. Am.
Petition at 1. However, petitioner’s vaccination record indicates that petitioner received the
vaccine on October 15, 2014. Petitioner’s Exhibit (“Pet. Ex.”) 6. Both petitioner and respondent
also state petitioner received the flu vaccine on October 15, 2014, and thus the date of
vaccination is not in dispute. See Pet. Motion for Ruling on the Record (“Pet. Mot.”), filed July
16, 2020, at 1 (ECF No. 80); Respondent’s Response to Pet. Mot. (“Resp. Response”), filed Aug.
17, 2020, at 2 n.2 (ECF No. 81); see also Order Denying Respondent’s Motion to Dismiss and
Fact Ruling on Six Month Requirement dated Aug. 28, 2019 (“Fact Ruling”) dated Aug. 28,
2019, at 1 n.3 (ECF No. 57).
2

Case 1:16-vv-00593-UNJ Document 93 Filed 02/19/21 Page 3 of 13
On June 15, 2020, petitioner filed a status report indicating that settlement did not appear
to be possible. Petitioner’s (“Pet.”) Status Rept., filed June 15, 2020 (ECF No. 77). Thereafter,
the undersigned set a briefing schedule. Order dated June 16, 2020 (ECF No. 78).
On July 16, 2020, petitioner filed a motion for a ruling on the record and two affidavits.
Pet. Motion for Ruling on the Record (“Pet. Mot.”), filed July 16, 2020 (ECF No. 80); Pet.
Exhibits (“Exs.”) 13-14. Respondent filed his response on August 17, 2020. Resp. Response to
Pet. Mot. (“Resp. Response”), filed Aug. 17, 2020 (ECF No. 81).
Petitioner filed an expert report from Dr. Marko Bodor on November 16, 2020. Pet. Ex.
15. Respondent filed a status report on January 19, 2021, stating “[r]espondent [did] not intend
to file an expert report.” Resp. Status Rept., filed Jan. 19, 2021 (ECF No. 90).
This matter is now ripe for adjudication.
II. FACTUAL HISTORY
The Fact Ruling set forth a summary of petitioner’s medical records relative to his right
shoulder. See Fact Ruling at 3-5. Those summaries will not be repeated here. In the Fact
Ruling, the undersigned found petitioner established that he suffered the residual effects of his
vaccine-related injury for at least six months as required by the Vaccine Act. Id. at 7.
After the Fact Ruling issued, petitioner filed two additional affidavits. See Pet. Exs. 13-
14. Petitioner averred that “[a]lmost immediately after receiving the injection for the [flu]
vaccination, [he] began to suffer pain in [his] right shoulder, making it difficult to move the
shoulder and use [his] right arm.” Pet. Ex. 13 at ¶ 6. Petitioner declared that he had no right
shoulder injury prior to his October 2014 vaccination. Pet. Ex. 14 at ¶ 3. He tried to manage the
pain himself for about six weeks before he saw a physician who referred him to physical therapy.
Pet. Ex. 13 at ¶¶ 7-8. Due to the injury, he was unable to continue to work as a painter. Id. at ¶
9.
Petitioner also explained that since his October 2014 flu vaccination, “[his] right shoulder
has never been completely pain free,” but has “hurt less” over the years and “[he] ha[s] learned
what activities to avoid.” Pet. Ex. 14 at ¶ 6. He stated that his right shoulder hurts when he lifts
items over his head, especially when they are heavy. Id. at ¶ 7. His shoulder also hurts when he
sleeps on his right side. Id. He takes ibuprofen for the pain. Id.
As of July 9, 2020, the date on which the petitioner executed his third affidavit, he
explained that “[o]n good days, [his] right should injury does not [a]ffect [him] much, [but] on
bad days [he] ha[s] a sore shoulder, but [he] live[s] with it.” Pet. Ex. 14 at ¶ 8.
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III. EXPERT REPORTS
A. Petitioner’s Expert, Dr. G. Russell Huffman
1. Background and Qualifications
Dr. Huffman is a shoulder and elbow surgeon and an Associate Professor of Orthopedic
Surgery and Director of the Shoulder and Elbow Surgery Fellowship at the University of
Pennsylvania Medical Center. Pet. Ex. 11 at 1; Pet. Ex. 12 at 1. Dr. Huffman earned his M.D. at
Duke University School of Medicine, completed his surgical internship and orthopaedic surgery
residency at the University of California, San Francisco, and completed shoulder and elbow
fellowships at the University of Southern California and Mayo Clinic. Pet. Ex. 12 at 1. Dr.
Huffman “oversee[s] 3,000 patient office visits a year and perform[s] over 450 surgeries per
year.” Pet. Ex. 11 at 1. He has authored over 100 publications and lectured nationally and
internationally. Id. He researches shoulder and elbow issues and has diagnosed and treated
patients with SIRVA for over eight years. Id. Dr. Huffman is currently investigating a SIRVA
protocol at the University of Pennsylvania. Id.
2. Opinion
Dr. Huffman opined that “within a reasonable degree of medical certainty,” petitioner
developed a SIRVA injury immediately after vaccination. Pet. Ex. 11 at 4.
Citing Ryan,4 Dr. Huffman explained that
a vaccine recipient shall be considered to have suffered SIRVA if such recipient
manifests all of the following . . .
• No prior history of pain, inflammation or dysfunction of the affected
shoulder prior to vaccine administration;
• Pain occurs within the specified time-frame;
• Pain and reduced range of motion are limited to the shoulder in which the
vaccine was administered; and
• No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
Pet. Ex. 11 at 3 (citing Pet. Ex. 28 at 5). He opined that petitioner meets all of these criteria. Id.
at 4. He added that Ryan expanded SIRVA to include “conditions that cause a ‘prolonged
restriction of [shoulder] function.’” Id. at 3 (quoting Pet. Ex. 28 at 7).
Dr. Huffman found no evidence that petitioner had a shoulder injury prior to his
vaccination in October 2014. Pet. Ex. 11 at 3. Based on petitioner’s history and treatment, Dr.
4 Tom Ryan, Injection-Related Work Grp., Dep’t of Health & Hum. Servs., 2011 Institute of
Medicine (IOM) Report Generated Proposals for Updates to the Vaccine Injury Table (VIT)
(2011).
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Huffman found a temporal relationship between petitioner’s October 15, 2014 vaccination and
his shoulder injury. Id. He found petitioner’s pain began immediately after vaccination. Id. at 4.
B. Petitioner’s Expert, Dr. Marko Bodor
1. Background and Qualifications
Dr. Bodor is “a board-certified Physical Medicine and Rehabilitation specialist with
subspecialty board certifications in Sports Medicine and Pain Medicine.” Pet. Ex. 15 at 1. Dr.
Bodor received his M.D. from the University of Cincinnati, and then completed a surgical
internship at the University of California, San Diego and a physical medicine and rehabilitation
residency at the University of Michigan. Pet. Ex. 16 at 1. He currently holds various positions
including Voluntary Assistant Professor in the Department of Neurological Surgery at the
University of California, San Francisco and in the Department of Physical Medicine and
Rehabilitation at the University of California, Davis. Id. Dr. Bodor also runs his own private
practice where he sees various patients with SIRVA injuries. Id.; Pet. Ex. 15 at 1. He has
authored or co-authored over 30 publications, given more than 30 lectures and presentations, and
serves on various professional publications and organizations. Pet. Ex. 16 at 2-5, 7-9.
2. Opinion
Dr. Bodor opined that petitioner suffered a SIRVA injury to his right shoulder at the time
of his flu vaccination on October 15, 2014. Pet. Ex. 15 at 3. Before reaching his opinions, Dr.
Bodor reviewed petitioner’s medical records and affidavits and cited supporting medical
literature. Id. at 1-2, 4.
Dr. Bodor opined that petitioner’s flu vaccination was administered too high in his
shoulder, demonstrated by documentation from Jeremiah Noggle, FNP, describing the shot as
given “2 fingerbreadths below the acromion process/proper injection site.” Pet. Ex. 15 at 2
(quoting Pet. Ex. 3 at 1). Dr. Bodor, citing Bodor and Montalvo,5 explained that petitioner’s
vaccination was administered within the region of the subdeltoid bursa. Id.
Bodor and Montalvo examined two patients with shoulder pain and weakness following
vaccination and hypothesized that the “vaccine was injected into the subdeltoid bursa, causing a
robust local immune and inflammatory response.” Pet. Ex. 17 at 1-2. After examining the two
patients along with 21 other volunteers, they “defined the subdeltoid bursa as being located in the
potential space between the deltoid muscle and supraspinatus tendon extending from the
acromion to the insertion of the supraspinatus tendon at the anatomical neck of the humerus.” Id.
at 2. “Given that the subdeltoid bursa is contiguous with the subacromial bursa, this led to
subacromial bursitis, bicipital tendonitis, and inflammation of the shoulder capsule,” as well as
“adhesive capsulitis.” Id. Because multiple structures within the shoulder were involved in both
patients, Bodor and Montalvo found this suggested “a primary inflammatory etiology rather than
a mechanical overuse problem.” Id. at 3. The authors concluded that “the diagnosis of
5 Marko Bodor & Enoch Montalvo, Vaccination-Related Shoulder Dysfunction, 25 Vaccine 585
(2007).
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vaccination-related shoulder dysfunction . . . [should] be considered in patients presenting with
shoulder pain and weakness following a vaccine injection.” Id.
Dr. Bodor also cited Atanasoff et al.,6 where the authors identified thirteen cases where
“vaccine administration led to significant shoulder pain and dysfunction.” Pet. Ex. 18 at 1-2.
Based on their investigation, the authors proposed that “the unintentional injection of antigenic
material into synovial tissues result[s] in an immune-mediated inflammatory reaction.” Id. at 1.
“[T]he rapid onset of pain with limited range of motion following vaccination . . . is consistent
with a robust and prolonged immune response.” Id. at 3. The authors noted that some of their
MRI findings “may have been present prior to vaccination and became symptomatic as a result
of vaccination-associated synovial inflammation. Other findings such as fluid collections,
localized tendon inflammation, and bursitis are more consistent with the vaccine needle over-
penetration mechanism.” Id. at 3-4.
Dr. Bodor noted that prior to the vaccination at issue, petitioner had no history of right
shoulder pain or dysfunction. Pet. Ex. 15 at 2. After vaccination, petitioner immediately
developed pain. Id. Given petitioner’s age, Dr. Bodor found osteoarthritis and rotator cuff
disease “very rare.” Id. at 2-3. Thus, he concluded that “[petitioner’s] findings are most
consistent with a chronic inflammatory problem such as adhesive capsulitis or SIRVA.” Id. at 3.
Dr. Bodor addressed petitioner’s “normal examinations” with Mr. Noggle on November
6 and Dr. Karen Barton on November 17, 2014. Pet. Ex. 15 at 3. On November 6, 2014,
petitioner presented to Mr. Noggle for shoulder pain from a flu vaccination one month prior.
Pet. Ex. 3 at 1. Mr. Noggle found “normal active [range of motion]” and “[n]o tenderness or
induration with palpation of injection site.” Id. Petitioner presented to Dr. Barton on November
17, 2014 with complaints of “[r]ight lateral shoulder pain acute onset since flu vaccine 6 weeks
ago.” Pet. Ex. 2 at 7. Dr. Barton’s musculoskeletal exam of petitioner was normal and
petitioner’s range of motion exam showed no pain, crepitation, or contracture. Id. at 9. Dr.
Bodor argued neither “examiner[] has expertise in musculoskeletal disorders” and “their
examinations were non-specific and very brief.” Pet. Ex. 15 at 3. He suspected that neither
examiner noticed key findings of loss of range of motion, pain, and weakness, and thus argued
these comments should not be relied on in evaluating petitioner’s claim. Id.
IV. DISCUSSION
A. Standards for Adjudication
The Vaccine Act was established to compensate vaccine-related injuries and deaths. §
10(a). “Congress designed the Vaccine Program to supplement the state law civil tort system as
a simple, fair and expeditious means for compensating vaccine-related injured persons. The
Program was established to award ‘vaccine-injured persons quickly, easily, and with certainty
and generosity.’” Rooks v. Sec’y of Health & Hum. Servs., 35 Fed. Cl. 1, 7 (1996) (quoting
H.R. Rep. No. 908 at 3, reprinted in 1986 U.S.C.C.A.N. at 6287, 6344).
6 S. Atanasoff et al., Shoulder Injury Related to Vaccine Administration (SIRVA), 28 Vaccine
8049 (2010).
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Petitioner’s burden of proof is by a preponderance of the evidence. § 13(a)(1). The
preponderance standard requires a petitioner to demonstrate that it is more likely than not that the
vaccine at issue caused the injury. Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315,
1322 n.2 (Fed. Cir. 2010). Proof of medical certainty is not required. Bunting v. Sec’y of Health
& Hum. Servs., 931 F.2d 867, 873 (Fed. Cir. 1991). In particular, petitioner must prove that the
vaccine was “not only [the] but-for cause of the injury but also a substantial factor in bringing
about the injury.” Moberly, 592 F.3d at 1321 (quoting Shyface v. Sec’y of Health & Hum.
Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)); see also Pafford v. Sec’y of Health & Hum.
Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006). The received vaccine, however, need not be the
predominant cause of the injury. Shyface, 165 F.3d at 1351. A petitioner who satisfies this
burden is entitled to compensation unless respondent can prove, by a preponderance of the
evidence, that the vaccinee’s injury is “due to factors unrelated to the administration of the
vaccine.” § 13(a)(1)(B).
B. Factual Issues
A petitioner must prove, by a preponderance of the evidence, the factual circumstances
surrounding his claim. § 13(a)(1)(A). 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 & Hum. 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). Contemporaneous medical records are presumed to be
accurate. See Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
To overcome the presumptive accuracy of medical records, a petitioner may present testimony
which is “consistent, clear, cogent, and compelling.” Sanchez v. Sec’y of Health & Hum. Servs.,
No. 11-685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013) (citing Blutstein v.
Sec’y of Health & Hum. Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr.
June 30, 1998)).
There are situations in which compelling testimony may be more persuasive than written
records, such as where records are deemed to be incomplete or inaccurate. Campbell v. Sec’y of
Health & Hum. Servs., 69 Fed. Cl. 775, 779 (2006) (“[L]ike any norm based upon common
sense and experience, this rule should not be treated as an absolute and must yield where the
factual predicates for its application are weak or lacking.”); Lowrie v. Sec’y of Health & Hum.
Servs., No. 03-1585V, 2005 WL 6117475, at *19 (Fed. Cl. Spec. Mstr. Dec. 12, 2005)
(“[W]ritten records which are, themselves, inconsistent, should be accorded less deference than
those which are internally consistent.” (quoting Murphy v. Sec’y of Health & Hum. Servs., 23
Cl. Ct. 726, 733 (1991), aff’d per curiam, 968 F.2d 1226 (Fed. Cir. 1992))). Ultimately, a
determination regarding a witness’s credibility is needed when determining the weight that such
testimony should be afforded. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1379
(Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum. Servs., 991 F.2d 1570, 1575 (Fed. Cir.
1993).
Despite the weight afforded medical records, special masters are not bound rigidly by
those records in determining onset of a petitioner’s symptoms. Valenzuela v. Sec’y of Health &
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Hum. Servs., No. 90-1002V, 1991 WL 182241, at *3 (Fed. Cl. Spec. Mstr. Aug. 30, 1991); see
also Eng v. Sec’y of Health & Hum. Servs., No. 90-1754V, 1994 WL 67704, at *3 (Fed. Cl.
Spec. Mstr. Feb. 18, 1994) (Section 13(b)(2) “must be construed so as to give effect also to §
13(b)(1) which directs the special master or court to consider the medical records (reports,
diagnosis, conclusions, medical judgment, test reports, etc.), but does not require the special
master or court to be bound by them”).
C. Causation
To receive compensation through the Program, petitioner must prove either (1) that he
suffered a “Table Injury”—i.e., an injury listed on the Vaccine Injury Table—corresponding to a
vaccine that he received, or (2) that he suffered an injury that was actually caused by a
vaccination. See §§ 11(c)(1), 13(a)(1)(A); Capizzano v. Sec’y of Health & Hum. Servs., 440
F.3d 1317, 1319-20 (Fed. Cir. 2006). Because petitioner’s claim predates the inclusion of
SIRVA on the Table, he must prove his claim by showing that his injury was caused-in-fact by
the vaccination in question. § 11(c)(1)(C)(ii). To do so, petitioner must establish, by
preponderant evidence: “(1) a medical theory causally connecting the vaccination and the injury;
(2) a logical sequence of cause and effect showing that the vaccination was the reason for the
injury; and (3) a showing of a proximate temporal relationship between vaccination and injury.”
Althen, 418 F.3d at 1278.
The causation theory must relate to the injury alleged. The petitioner must provide a
sound and reliable medical or scientific explanation that pertains specifically to this case,
although the explanation need only be “legally probable, not medically or scientifically certain.”
Knudsen v. Sec’y of Health & Hum. Servs., 35 F.3d 543, 548-49 (Fed. Cir. 1994). Petitioner
cannot establish entitlement to compensation based solely on his assertions; rather, a vaccine
claim must be supported either by medical records or by the opinion of a medical doctor. §
13(a)(1). In determining whether petitioner is entitled to compensation, the special master shall
consider all material in the record, including “any . . . conclusion, [or] medical judgment . . .
which is contained in the record regarding . . . causation.” § 13(b)(1)(A). The undersigned must
weigh the submitted evidence and the testimony of the parties’ proffered experts and rule in
petitioner’s favor when the evidence weighs in his favor. See Moberly, 592 F.3d at 1325-26
(“Finders of fact are entitled—indeed, expected—to make determinations as to the reliability of
the evidence presented to them and, if appropriate, as to the credibility of the persons presenting
that evidence.”); Althen, 418 F.3d at 1280 (noting that “close calls” are resolved in petitioner’s
favor).
V. CAUSATION ANALYSIS
A. Althen Prong One
Under Althen Prong One, petitioner must set forth a medical theory explaining how the
received vaccine could have caused the sustained injury. Andreu, 569 F.3d at 1375; Pafford, 451
F.3d at 1355-56. Petitioner’s theory of causation need not be medically or scientifically certain,
but it must be informed by a “sound and reliable” medical or scientific explanation. Boatmon v.
Sec’y of Health & Hum. Servs., 941 F.3d 1351, 1359 (Fed. Cir. 2019); see also Knudsen, 35
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F.3d at 548; Veryzer v. Sec’y of Health & Hum. Servs., 98 Fed. Cl. 214, 223 (2011) (noting that
special masters are bound by both § 13(b)(1) and Vaccine Rule 8(b)(1) to consider only evidence
that is both “relevant” and “reliable”). If petitioner relies upon a medical opinion to support his
theory, the basis for the opinion and the reliability of that basis must be considered in the
determination of how much weight to afford the offered opinion. See Broekelschen v. Sec’y of
Health & Hum. Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (“The special master’s decision
often times is based on the credibility of the experts and the relative persuasiveness of their
competing theories.”); Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 n.6 (Fed.
Cir. 1994) (stating that an “expert opinion is no better than the soundness of the reasons
supporting it” (citing Fehrs v. United States, 620 F.2d 255, 265 (Ct. Cl. 1980))).
The mechanism for a SIRVA injury is well described in medical literature filed in this
case. In summary, the Atanasoff authors’ proposed mechanism “is the unintentional injection of
antigenic material into synovial tissues resulting in an immune-mediated inflammatory reaction.”
Pet. Ex. 18 at 1. They found “rapid onset of pain with limited range of motion following
vaccination . . . is consistent with a robust and prolonged immune response.” Id. at 3. Bodor and
Montalvo proposed that a “vaccine was injected into the subdeltoid bursa, causing a robust local
immune and inflammatory response.” Pet. Ex. 17 at 1-2. They found multiple structures within
the shoulder involved, which suggested “a primary inflammatory etiology rather than a
mechanical overuse problem.” Id. at 3.
Further, when proposing the addition of SIRVA to the Vaccine Table, respondent
discussed the mechanism by which this injury is caused. See National Vaccine Injury
Compensation Program: Revisions to the Vaccine Injury Table, 80 Fed. Reg. 45132, 45137 (July
29, 2015).
The undersigned takes judicial notice of the fact that respondent has added SIRVA after
receipt of an intramuscularly administered flu vaccine to the Table. Such recognition of the
causal association between vaccine and injury has been held to support the establishment of the
theory required by the first Althen prong. See Doe 21 v. Sec’y of Health & Hum. Servs., 88 Fed.
Cl. 178, 193 (2009), rev’d on other grounds, 527 F. App’x. 875 (Fed. Cir. 2013).
Additionally, the undersigned notes that, prior to the adoption of the revised Table, which
is effective for petitions filed on March 21, 2017 and later, respondent conceded entitlement in
numerous SIRVA cases alleging causation by an intramuscularly administered flu vaccine. See,
e.g., Cothern v. Sec’y of Health & Hum. Servs., No. 14-574V, 2014 WL 6609687 (Fed. Cl. Spec.
Mstr. Oct. 15, 2014); MacLaughlin v. Sec’y of Health & Hum. Servs., No. 17-57V, 2018 WL
3030269 (Fed. Cl. Spec. Mstr. Mar. 16, 2018). Even after the revised Table became effective,
respondent continued to concede cases which may not have met the Table criteria, but in which
respondent, nevertheless, believed causation had been established. See, e.g., Buras v. Sec’y of
Health & Hum. Servs., No. 17-1012V, 2018 WL 4042194 (Fed. Cl. Spec. Mstr. Apr. 13, 2018).
Moreover, petitioner submitted the expert opinions of Dr. Huffman and Dr. Bodor who
provided a sound and reliable medical and scientific theory of causation supported by medical
literature. Dr. Bodor explained that the injection was administered too high in the shoulder into
the subdeltoid bursa. Pet. Ex. 15 at 2. Like petitioner, the patients in Bodor and Montalvo were
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administered a vaccine into the subdeltoid bursa, which “caus[ed] a robust local immune and
inflammatory response.” Pet. Ex. 17 at 1-2; see also Pet. Ex. 15 at 2. Bodor and Montalvo
found multiple structures within the shoulder to be involved which suggested “a primary
inflammatory etiology.” Pet. Ex. 17 at 3.
The undersigned finds petitioner has provided by preponderant evidence a sound and
reliable theory that the flu vaccine administered intramuscularly can cause a SIRVA, and
therefore, petitioner has satisfied the first Althen prong.
B. Althen Prong Two
Under Althen Prong Two, petitioner must prove by a preponderance of the evidence that
there is a “logical sequence of cause and effect showing that the vaccination was the reason for
the injury.” Capizzano, 440 F.3d at 1324 (quoting Althen, 418 F.3d at 1278). “Petitioner must
show that the vaccine was the ‘but for’ cause of the harm . . . or in other words, that the vaccine
was the ‘reason for the injury.’” Pafford, 451 F.3d at 1356 (internal citations omitted).
In evaluating whether this prong is satisfied, the opinions and views of the vaccinee’s
treating physicians are entitled to some weight. Andreu, 569 F.3d at 1367; Capizzano, 440 F.3d
at 1326 (“[M]edical records and medical opinion testimony are favored in vaccine cases, as
treating physicians are likely to be in the best position to determine whether a ‘logical sequence
of cause and effect show[s] that the vaccination was the reason for the injury.’” (quoting Althen,
418 F.3d at 1280)). Medical records are generally viewed as trustworthy evidence, since they are
created contemporaneously with the treatment of the vaccinee. Cucuras, 993 F.2d at 1528. The
petitioner need not make a specific type of evidentiary showing, i.e., “epidemiologic studies,
rechallenge, the presence of pathological markers or genetic predisposition, or general
acceptance in the scientific or medical communities to establish a logical sequence of cause and
effect.” Capizzano, 440 F.3d at 1325. Instead, petitioner may satisfy his burden by presenting
circumstantial evidence and reliable medical opinions. Id. at 1325-26.
With regard to the second Althen prong, the undersigned finds there is preponderant
evidence in the record to support a logical sequence of cause and effect showing the October 15,
2014 flu vaccination to be the cause of petitioner’s right shoulder pain. See Althen, 418 F.3d at
1278. First, Dr. Huffman’s report and the medical literature provide a framework for evaluating
whether petitioner’s claim is consistent with SIRVA. The criteria are as follows:
a vaccine recipient shall be considered to have suffered SIRVA if such recipient
manifests all of the following . . .
• No prior history of pain, inflammation or dysfunction of the affected
shoulder prior to vaccine administration;
• Pain occurs within the specified time-frame;
• Pain and reduced range of motion are limited to the shoulder in which the
vaccine was administered; and
• No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
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Pet. Ex. 11 at 3 (citing Pet. Ex. 28 at 5). A vaccinee is considered to have suffered from a
SIRVA injury if he manifests all four of the above criteria. Id.
1. Prior Condition
Based upon a review of the record as a whole, including the medical records, affidavits,
and expert reports, the undersigned finds there is no evidence that petitioner experienced any
issues with his right shoulder prior to vaccination.
2. Pain Onset
Respondent argues that Dr. Huffman summarily concluded that petitioner’s shoulder pain
began within 48 hours based on petitioner’s statements. Resp. Response at 10 n.12. Petitioner
argues his pain began immediately and “clearly within 48 hours of the vaccination.” Pet. Mot. at
2. Petitioner’s experts also opined that petitioner’s right shoulder began “immediately” after
vaccination and “within the requisite 48-hour window.” Pet. Ex. 11 at 4; see also Pet. Ex. 15 at
2.
Based on the evidence, the undersigned finds petitioner’s pain began within 48 hours of
vaccination. The earliest in time document regarding onset is petitioner’s visit to Jeremiah
Noggle, FNP on November 6, 2014, three weeks and one day after vaccination. Petitioner
complained of “[s]houlder pain from shot” with “shooting pain/weakness/decreased [range of
motion]” in his right deltoid. Pet. Ex. 3 at 1. Mr. Noggle added that petitioner “pointed to the
area where the shot was given in the right deltoid 2 fingerbrea[d]ths below the [acromion]
process/proper injection site.” Id.
On November 17, 2014, petitioner was seen by Dr. Barton for “[r]ight lateral shoulder
pain acute onset since flu vaccine 6 weeks ago.” Pet. Ex. 2 at 7. Petitioner stated the “[p]ain
occurred within seconds of injection.” Id.
On November 21, 2014, petitioner had an initial physical therapy assessment for right
shoulder pain at Robinson Rehab Center & Sport Clinic. Pet. Ex. 1 at 4. At his November 24,
2014 visit, his physical therapist documented that petitioner’s right shoulder has hurt since his
vaccination. Id. at 3.
Additionally, petitioner averred that “[a]lmost immediately after receiving the injection
for the [flu] vaccination, [he] began to suffer pain in [his] right shoulder, making it difficult to
move the shoulder and use [his] right arm.” Pet. Ex. 13 at ¶ 6.
Based on the contemporaneous medical records and affidavits, the undersigned finds the
onset of petitioner’s shoulder pain began immediately after vaccination, and well within two
days or 48 hours of his October 2014 vaccination.
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3. Scope of Pain and Limited Range of Motion
Based on the petitioner’s affidavits and medical records, petitioner’s vaccine-related
symptoms were limited to his right shoulder. Petitioner’s November 2014 visits document pain
in petitioner’s right shoulder. Pet. Ex. 2 at 7; Pet. Ex. 3 at 1. Records from petitioner’s physical
therapy sessions also document right shoulder pain. Pet. Ex. 1 at 2-3. On December 21, 2016,
petitioner was seen by Dr. Edward Scott and was diagnosed with shoulder tendonitis. Pet. Ex. 7
at 1. Although the record does not specify which shoulder, it does reflect that petitioner was
referred to physical therapy to evaluate and treat for improved range of motion. Id. at 3. On
January 26, 2017, petitioner was seen at University Hospitals Rehabilitation Services for
physical therapy, where his diagnosis was shoulder tendonitis. Pet. Ex. 9 at 1. Throughout the
physical therapy records, petitioner’s shoulder pain is continuously noted to be in his right
shoulder and an examination noted decreased range of motion in the right shoulder. See id. at 1-
3. Relative to the right shoulder injury alleged in the petition, there is no indication that
petitioner experienced pain or limited range of motion in any area other than his right shoulder.
4. Other Condition or Abnormality
Drs. Huffman and Bodor identify no other condition or abnormality to explain
petitioner’s symptoms. Pet. Ex. 11 at 4; Pet. Ex. 15 at 2-3.
The undersigned finds there is nothing in the record that points to another condition or
abnormality as the cause of petitioner’s symptoms.
In conclusion, petitioner’s injury meets the criteria for SIRVA and petitioner’s clinical
course mirrors a typical SIRVA injury. Therefore, the undersigned finds petitioner has proven
by preponderant evidence a logical sequence of cause and effect and has satisfied the second
Althen prong.
C. Althen Prong Three
Althen Prong Three requires petitioner to establish a “proximate temporal relationship”
between the vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has been
equated to mean a “medically acceptable temporal relationship.” Id. The petitioner must offer
“preponderant proof that the onset of symptoms occurred within a timeframe which, given the
medical understanding of the disease’s etiology, it is medically acceptable to infer causation-in-
fact.” De Bazan v. Sec’y of Health & Hum. Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The
explanation for what is a medically acceptable time frame must also coincide with the theory of
how the relevant vaccine can cause the injury alleged (under Althen Prong One). Id.; Koehn v.
Sec’y of Health & Hum. Servs., 773 F.3d 1239, 1243 (Fed. Cir. 2014); Shapiro v. Sec’y of
Health & Hum. Servs., 101 Fed. Cl. 532, 542 (2011), recons. den’d after remand, 105 Fed. Cl.
353 (2012), aff’d mem., 503 F. App’x 952 (Fed. Cir. 2013).
As stated above, the undersigned finds the onset of petitioner’s right shoulder pain
occurred within 48 hours of vaccination. The timing of onset shows a proximate temporal
relationship between vaccination and injury. See Althen, 418 F.3d at 1278.
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The undersigned finds the evidence discussed in this Ruling qualifies as preponderant
evidence to show the flu vaccine caused petitioner’s shoulder injury within the time frame
required. The temporal association is appropriate given the mechanism of injury. Thus,
petitioner has satisfied the third Althen prong.
VI. CONCLUSION
Based on the record as a whole and for the reasons discussed above, the undersigned
finds there is preponderant evidence to satisfy all three Althen prongs and to establish
petitioner’s October 15, 2014 flu vaccination caused his right shoulder pain and limited range of
motion. Thus, the undersigned finds that petitioner has established by preponderant evidence
that he is entitled to compensation. A separate damages order will issue.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
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DOCUMENT 3: USCOURTS-cofc-1_16-vv-00593-2
Date issued/filed: 2021-08-23
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 7/27/2021) regarding 111 DECISION Proffer. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made.
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Case 1:16-vv-00593-UNJ Document 116 Filed 08/23/21 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 27, 2021
* * * * * * * * * * * * * * * * * * * * * * * *
JEFFREY SCHAFER, * UNPUBLISHED
*
Petitioner, * No. 16-593V
*
v. * Special Master Dorsey
*
SECRETARY OF HEALTH * Damages Award; Proffer; Influenza (“Flu”)
AND HUMAN SERVICES, * Vaccine; Shoulder Injury Related to Vaccine
* Administration (“SIRVA”).
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * *
Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.
Jennifer Leigh Reynaud, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES1
On May 19, 2016, Jeffrey Schafer (“petitioner”) filed a petition for compensation under
the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42
U.S.C. § 300aa-10 et seq. (2012).2 Petitioner alleged that he suffered a right shoulder injury as
1 Because this Decision contains a reasoned explanation for the action in this case, the
undersigned is required 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). 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such
material from public access.
2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National
Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended,
42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this Decision to individual sections of the
Vaccine Act are to 42 U.S.C. § 300aa.
1

Case 1:16-vv-00593-UNJ Document 116 Filed 08/23/21 Page 2 of 5
the result of an influenza (“flu”) vaccination administered on October 15, 2014.3 Amended
(“Am.”) Petition at 1 (ECF No. 37). On January 25, 2021, the undersigned issued a ruling
finding petitioner entitled to compensation. Ruling on Entitlement dated Jan. 25, 2021 (ECF No.
91).
On July 26, 2021, respondent filed a Proffer on Award of Compensation (“Proffer”),
attached hereto as Appendix A. In the Proffer, respondent represented that petitioner agrees with
the proffered award. Proffer at 2. Based on the record as a whole, the undersigned finds that
petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards petitioner:
(1) A lump sum payment of $45,000.00 in the form of a check made payable to
petitioner, Jeffrey Schafer.
Proffer at 2.
In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of
the Court SHALL ENTER JUDGMENT herewith.4
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
3 The amended petition alleges petitioner received his flu vaccination on October 6, 2014. Am.
Petition at 1. However, petitioner’s vaccination record indicates that petitioner received the
vaccine on October 15, 2014. Petitioner’s Exhibit (“Pet. Ex.”) 6. Both petitioner and respondent
also state petitioner received the flu vaccine on October 15, 2014, and thus the date of
vaccination is not in dispute. See Pet. Motion for Ruling on the Record (“Pet. Mot.”), filed July
16, 2020, at 1 (ECF No. 80); Respondent’s Response to Pet. Mot. (“Resp. Response”), filed Aug.
17, 2020, at 2 n.2 (ECF No. 81); see also Order Denying Respondent’s Motion to Dismiss and
Fact Ruling on Six Month Requirement dated Aug. 28, 2019 (“Fact Ruling”) dated Aug. 28,
2019, at 1 n.3 (ECF No. 57).
4 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of
notice renouncing the right to seek review.
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Case 1:16-vv-00593-UNJ Document 116 Filed 08/23/21 Page 3 of 5
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
JEFFREY SCHAFER,
Petitioner,
v.
No. 16-593V
SECRETARY OF HEALTH AND
Special Master Dorsey
HUMAN SERVICES,
ECF
Respondent.
PROFFER ON AWARD OF DAMAGES
On May 19, 2016, Jeffrey Schafer (“petitioner”) filed a petition for compensation
(“Petition”) under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -
34 (“Vaccine Act” or “Act”), as amended. Petitioner alleged that he suffered a left Shoulder
Injury Related to Vaccine Administration (“SIRVA”),1 resulting from an influenza (“flu”)
vaccination administered on October 6, 2014. Amended Petition at 2. On January 25, 2021, the
Court issued a Ruling on Entitlement finding petitioner entitled to compensation. ECF No. 91.
I. Amount of Compensation
Respondent now proffers that, based on the Court’s entitlement decision and the evidence
of record, petitioner should be awarded $45,000.00.2 This lump sum payment represents all
1 Petitioner amended his petition on March 19, 2018, to allege a Table injury. However,
because this claim was filed prior to March 21, 2017, petitioner was required to proceed on a
causation-in-fact claim. See 82 Fed. Reg. 6294 (Jan. 19, 2017) (to be codified at 42 C.F.R. Pt.
100).
2 The parties have no objection to the amount of the proffered award of damages. Assuming the
special master issues a damages decision in conformity with this proffer, the parties waive their
right to seek review of such damages decision. However, respondent reserves his right, pursuant
to 42 U.S.C. § 300aa-12(e), to seek review of the Special Master’s January 25, 2021 entitlement
decision.

Case 1:16-vv-00593-UNJ Document 116 Filed 08/23/21 Page 4 of 5
elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a).
Petitioner agrees.
II. Form of the Award
Respondent recommends that the compensation provided to petitioner should be made
through a lump sum payment of $45,000.00, in the form of a check made payable to petitioner.3
Petitioner agrees.
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
C.SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
3 Should petitioner die prior to the entry of judgment, the parties reserve the right to move the
Court for appropriate relief. In particular, respondent would oppose any award for future
medical expenses, future lost earnings, and future pain and suffering.
2

Case 1:16-vv-00593-UNJ Document 116 Filed 08/23/21 Page 5 of 5
s/Jennifer L. Reynaud
JENNIFER L. REYNAUD
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146
Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 305-1586
DATED: July 26, 2021 Jennifer.L.Reynaud@usdoj.gov
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