VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-00451
Package ID: USCOURTS-cofc-1_17-vv-00451
Petitioner: Larry Wolford
Filed: 2017-03-29
Decided: 2022-08-05
Vaccine: influenza
Vaccination date: 2015-11-11
Condition: right shoulder injury related to vaccine administration (SIRVA)
Outcome: compensated
Award amount USD: 71971

AI-assisted case summary:
On March 29, 2017, Larry Wolford filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that an influenza vaccine administered on November 11, 2015, caused a right shoulder injury related to vaccine administration (SIRVA). Mr. Wolford, who was 53 years old at the time of vaccination, reported experiencing aching and stiffness the evening of the vaccination, with pain disturbing his sleep and worsening over the next day or two. He testified that the administering nurse felt the needle "tighten up" and "jerk" during administration. His wife corroborated that the nurse commented on the "jerk" and warned of soreness. Mr. Wolford began using a compression sock as a sling and found relief with Tylenol, ibuprofen, and Icy Hot. He was unable to comb his hair due to restricted arm movement. Due to Dr. Patel's unavailability, Mr. Wolford did not see another medical provider until February 16, 2016, approximately 97 days after vaccination, when he presented to chiropractor Dr. Jarrod Thacker with severe shoulder and arm pain. Dr. Thacker diagnosed impingement syndrome and bursitis, providing exercises and stretches. Mr. Wolford continued treatment with Dr. Thacker through November 2016. An MRI of his right shoulder on March 1, 2016, showed changes consistent with impingement syndrome or bursitis. Orthopedist Dr. Jamie Varney, whom Mr. Wolford saw on April 18, 2016, diagnosed impingement syndrome and bursitis, noting that while MRIs showed chronic tendinopathy and bursitis, it was unlikely the flu shot caused the damage, suggesting pre-existing conditions and a downward sloping acromion. Dr. Varney administered a cortisone injection. Petitioner's experts, Dr. Jeffrey Boyd and Dr. Tony Korman, opined that the flu vaccine caused Mr. Wolford's SIRVA through an immune-mediated inflammatory reaction due to unintentional injection into synovial tissues. They noted that pre-existing conditions could be aggravated by vaccination. Respondent's expert, Dr. Paul Cagle, opined that the flu vaccination did not cause Mr. Wolford's symptoms, attributing them to pre-existing conditions and occupational history, and questioning whether a standard needle could over-penetrate the deltoid muscle. Special Master Nora Beth Dorsey issued a Ruling on Entitlement on July 9, 2021, finding that Mr. Wolford proved by a preponderance of the evidence that the flu vaccine caused his right shoulder injury, satisfying all three prongs of the Althen test. A separate damages decision was issued on August 5, 2022. The Special Master awarded Mr. Wolford $70,000.00 for pain and suffering and $1,971.85 for out-of-pocket medical expenses, totaling $71,971.85.

Theory of causation field:
Larry Wolford, age 53, received an influenza vaccine on November 11, 2015. He alleged and proved by a preponderance of the evidence that the vaccine caused a right shoulder injury related to vaccine administration (SIRVA), specifically impingement syndrome and bursitis. Petitioner's experts, Dr. Jeffrey Boyd and Dr. Tony Korman, proposed a mechanism involving unintentional injection of antigenic material into synovial tissues, leading to an immune-mediated inflammatory reaction and subsequent bursitis and impingement syndrome, consistent with the "Off-Table" theory for SIRVA. They argued that pre-existing conditions, while present, were asymptomatic prior to vaccination and were aggravated by the vaccine. Respondent's expert, Dr. Paul Cagle, disagreed, attributing the symptoms to pre-existing conditions and occupational history, and questioning the likelihood of needle over-penetration. Special Master Nora Beth Dorsey found that Mr. Wolford satisfied the three prongs of the Althen test: a sound medical theory (supported by Atanasoff et al. and respondent's own recognition of SIRVA as a vaccine-related injury), a logical sequence of cause and effect (onset of symptoms within 48 hours of vaccination, with a clear progression of shoulder pain and limitations despite pre-existing conditions), and a proximate temporal relationship (symptoms beginning the evening of vaccination). The Special Master awarded $70,000.00 for pain and suffering and $1,971.85 for out-of-pocket medical expenses, totaling $71,971.85. Petitioner was represented by Isaiah Richard Kalinowski and Kyle Edward Pozza. Respondent was represented by Kyle Edward Pozza. Special Master Nora Beth Dorsey issued the entitlement ruling on July 9, 2021, and the damages decision on August 5, 2022.

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_17-vv-00451-0
Date issued/filed: 2019-10-17
Pages: 13
Docket text: PUBLIC ORDER/RULING (Originally filed: 07/08/2019) regarding 56 Findings of Fact & Conclusions of Law Signed by Special Master Nora Beth Dorsey. (sw) Service on parties made.
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Case 1:17-vv-00451-UNJ Document 59 Filed 10/17/19 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-0451V
Filed: July 8, 2019
UNPUBLISHED
LARRY WOLFORD,
Special Processing Unit (SPU); Fact
Petitioner, Hearing; Findings of Fact; Onset;
v. Post-Hearing Briefing Not Required;
Influenza (Flu) Vaccine; Shoulder
SECRETARY OF HEALTH Injury Related to Vaccine
AND HUMAN SERVICES, Administration (SIRVA); No Other
Condition or Abnormality
Respondent.
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent.
FACT RULING1
Dorsey, Chief Special Master:
On March 29, 2017, Larry Wolford (“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
caused by an influenza (“flu”) vaccination he received on November 11, 2015. Petition
at 1-2. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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 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).

Case 1:17-vv-00451-UNJ Document 59 Filed 10/17/19 Page 2 of 13
For the reasons discussed below, the undersigned finds that the onset of
petitioner’s right shoulder injury occurred within 48 hours of his November 11, 2015
vaccination.
I. Procedural History
The petition in this case was filed on March 29, 2017. On January 16, 2018,
respondent filed a Rule 4(c) report indicating that respondent did not consider this case
to be appropriate for compensation (ECF No. 26). Respondent asserted that petitioner
had not established that the onset of his symptoms began within 48 hours of his
vaccination. Respondent further argued that petitioner had pre-existing cervical and
upper thoracic issues and that his pain was not limited to his right shoulder. Specifically
concerning onset, respondent argued:
Petitioner did not seek medical care for his alleged vaccine injury
until February 16, 2016, over three months post-vaccination. When he did
present to chiropractor Jarrod Thacker, DC, petitioner said that his right
arm pain began one week after receiving a flu vaccination in November
2015. Ex. 5 at 3. As a result, the medical records do not establish that
petitioner suffered the first symptoms or manifestation of onset of a
shoulder injury within 48 hours of the November 2015 flu vaccination.
Respondent’s Rule 4(c) report at 5.
On February 20, 2018, petitioner filed Exhibit 11, Affidavit of Larry Wolford, and
Exhibit 12, Affidavit of Patty Wolford (ECF No. 28). On October 23, 2018, petitioner
filed Exhibit 13, Expert Opinion of Jeffrey Boyd, M.D., Regarding Larry Wolford (ECF
No. 38). On November 28, 2018, the parties and an OSM staff attorney held a
telephonic status conference to discuss how to proceed. At the parties’ request, the
undersigned scheduled a videoconference fact hearing on the issue of onset for May
14, 2019. Pre-Hearing Order, issued Dec. 7, 2018 (ECF No. 39).
Approximately two weeks before the hearing, on April 29, 2019, respondent filed
a status report requesting a pre-hearing status conference. Respondent’s Status
Report, filed April 29, 2019 (ECF No. 44). Respondent noted that he had requested
telephone records from petitioner that had not yet been filed. Id. On the same day,
petitioner filed a status report indicating that he had been making efforts to obtain these
records. Petitioner’s Status Report, filed April 29, 2019 (ECF No. 45).
On April 30, 2019, a telephonic status conference was held with counsel for both
parties and an OSM staff attorney. Following the status conference, the undersigned
issued an order directing petitioner to file a motion for a subpoena and the records.
Scheduling Order, issued April 30, 2019 (ECF No. 47). The undersigned stated that
other than the items listed in the order, evidence not filed by the date set for the record
on onset to close would not be admitted absent compelling circumstances. Id.
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On May 1, 2019, petitioner filed Pet. Ex. 21, a declaration from the custodian of
records for Dinkar Patel, M.D., indicating that no phone records were produced. Pet.
Ex. 21 at 2. On June 5, 2019, petitioner filed Pet. Ex. 22, containing phone records with
several calls highlighted. Pet. Ex. 22 at 6-7.
On May 14, 2019, the undersigned held a fact hearing on the issue of onset. The
petitioner, Larry Wolford, and his wife, Patty Wolford, were witnesses and appeared via
videoconference with petitioner’s attorney.
On May 23, 2019, the undersigned held a telephonic status conference with the
parties. Isaiah Kalinowski appeared on behalf of petitioner, and Kyle Pozza appeared
on behalf of respondent. During the status conference, the undersigned indicated that if
it was acceptable to the parties, she would issue an oral ruling as to onset during the
status conference. Mr. Kalinowski agreed to this approach. Mr. Pozza stated that he
thought that there would be briefing before a ruling was issued. The undersigned
responded that onset was a factual issue and that the undersigned did not need briefs
to resolve onset. The undersigned then proceeded to state her ruling on onset as well
as the supporting evidence. The undersigned indicated that the ruling would be
memorialized in writing.
Following the May 23, 2019 status conference, the undersigned issued a
scheduling order directing petitioner to file additional medical records, an expert report,
social security disability records, and employment records. Scheduling Order, issued
May 24, 2019 (ECF No. 51).
On June 12, 2019, respondent filed a status report concerning the May 24, 2019
scheduling order. Respondent’s Status Report, filed June 12, 2019 (ECF No. 55). In
his status report, respondent’s counsel noted that during the May 23, 2019 status
conference he stated that post-hearing briefing would be appropriate. Id. Respondent
noted that the May 24, 2019 scheduling order did not reference respondent’s request for
post-hearing briefing. Id.
II. Evidence from Medical Records, Affidavits, and Hearing Testimony
While the undersigned has reviewed the entire record, because this ruling
concerns only onset, only evidence relevant to onset is summarized herein.
On November 11, 2015, petitioner was seen by his primary care physician, Dr.
Dinkar Patel. Pet. Ex. 4 at 34. The record indicates chief complaints of diabetes
mellitus and hypercholesterolemia. Id. Under “History of Present Illness,” the record
indicates that petitioner complained of backache, came in for check up on blood sugar,
had itching and rash on his right arm, and wanted the flu vaccine. Id.
Petitioner testified that he had not previously had the flu vaccine, but that there
were advertisements on television that “if you had sugar [diabetes] it would be bad on
you if you didn’t take it . . . so I went up there . . . just to take a shot.” Transcript of May
14, 2019 Hearing (“Tr.”) at 15-16, 88. The record documents, “Flu vaccine given. No
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reaction noted.” Pet. Ex. 4 at 35. Petitioner’s detailed immunization record indicates
that his flu shot on this date was administered intramuscularly into his right deltoid. Pet.
Ex. 10.
At the hearing, petitioner testified that when the vaccine was administered, the
nurse “said she felt it tighten up on me, so I don’t know where she did or what, but she
said she felt it tighten up on me.” Tr. at 17. He explained that “when she pulled the
needle out, she said it tightened up on her . . . she felt it jerk, the muscle tightened up
and everything.” Id. at 109-10.
Petitioner testified that he began experiencing aching and stiffness the evening of
the vaccination. Id. at 19. He testified that the shoulder pain disturbed his sleep and
awoke him at night beginning the first night following the vaccination. Id. at 35. He had
to start driving with one hand “[r]ight after the vaccine.” Id. at 36. He explained that a
day or two later he developed a stabbing pain. Id. at 26. He then made a “sleeve,” or
sling, out of a compression sock that, when worn as a sleeve, warmed his arm and
reduced his discomfort. Id. at 19-20, 26, 31-33.
When asked why he did not go to the emergency room, petitioner testified,
“[p]robably because they’d probably tell her to give you a pain shot and stuff, and I didn’t
want no more shots in the arm.” Id. at 117; see also id. at 123 (“they’d probably want to
administrate a shot . . . I didn’t want no more shots”). He thought they would probably
“say they want you to go to another doctor . . . so don’t make no difference.” Id. He
further explained that a couple of days after vaccination, he did not go to the emergency
room because “it would get better with treating – with my treating myself, Tylenol,
ibuprofen . . . [and] I’d go ahead and everything and put the sleeve on it too, so it would
make it, like I say, feel a little better.” Id. at 118. He added that he also used Icy Hot
during this time. Id. at 119.
Petitioner testified that his wife usually took care of making medical appointments
and filling out medical forms. Tr. at 27, 152-53. He testified that his wife also usually
did more of the talking than him. Id. at 152. Petitioner testified that at some point he
asked his wife to start calling doctors to see if he could be examined, but that he did not
recall exactly when that was. Id. at 44. He testified that “it’s hard to see doctors
anymore” and that “he’s hard to see and so, but you ought to hang on to what doctor
you got right now.” Id. at 121-22. Petitioner testified that he lives in a remote area and
his primary care physician’s office is 35 minutes away. Id. at 15.
At the hearing, Ms. Wolford testified that “when she [the nurse in Dr. Patel’s
office] gave him [petitioner] his shot she just kind of – I guess laughed a little bit and
said he’d probably get sore because I felt it jerk.” Id. at 157-58; see also id. at 199. Ms.
Wolford testified that she was present during the entire visit with Dr. Patel on November
11, 2015 when petitioner received his flu shot and that she also received a flu shot
during this visit. Id. at 157. She testified that the nurse who administered the vaccine
was named Lynette but that she did not know the nurse’s last name. Id. at 199. The
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vaccine administration record indicates that the vaccine was administered by Lynette
Gibson. Pet. Ex. 10.
Ms. Wolford testified, “after we got home, he was complaining with it being sore,
just like sore, a dull, aching sore, and – but he thought, you know, it was just normal.”
Tr. at 158. She testified that she did not call Dr. Patel’s office that day about her
husband’s pain because the nurse “said it was going to get sore, so he just thought it
would be normal.” Id. at 201. She testified that the soreness did not go away but
worsened. Id. at 158-59. She stated that the next day, “he just all of a sudden would be
hollering, ouch, and grabbing to his arm.” Id. at 159. However, she testified that he
“thought it was just normal from the shot, you know, because she said he’d get sore.”
Id.
Ms. Wolford testified that petitioner used Icy Hot, ibuprofen, and Tylenol for the
pain, and made a sleeve to put on to lessen his pain. Id. at 159. She testified that as
time went on in November and December, petitioner would “treat it for a while and then
it would go away, and it’d like just come back . . . . I remember him propping it up on,
like, a pillow to ease the pain. And I think we took rolled-up quilts, too, to put up under
his arm to hold it up where it was sore.” Id. at 160. She recalled seeing him “trying to
comb his hair, and he couldn’t get his arm up over his head to comb his hair, like he
was having trouble moving his arm.” Id. at 161. She could not recall when she
observed this but stated that it was before April 2016 and possibly before February
2016. Id. at 161, 173-74.
Ms. Wolford testified that she was not sure when she first called Dr. Patel’s
office, but believes it was sometime around mid-November or Thanksgiving. Tr. at 162-
63, 202. She testified that she was told that Dr. Patel “was out of the country at that
time” and that he would be gone for a month. Id. at 163, 205.
Petitioner’s phone records indicate that calls were made from a number
registered to petitioner to the same number in Grundy, VA, (276) 935-6444, 20 times
between November 20-24, 2015 and twice on January 15, 2016. Pet. Ex. 22 at 6-7.
The phone records also indicate that two calls were made to (276) 935-8620 in Grundy,
VA on January 11, 2016. Pet. Ex. 22 at 7. There is no evidence in the record of who
these phone numbers belong to. The main number of the clinic where Dr. Patel
practices in Grundy, VA is (276) 935-2148. See, e.g., Pet. Ex. 9 at 1.
Petitioner’s wife testified that petitioner did not see another doctor in the practice
because Dr. Patel had “been his doctor for years. He’s the only one he sees” and they
planned to “wait for him to come back.” Tr. at 163-64. She testified that she did not
initially look for other doctors because petitioner was treating himself and the pain was
coming and going. Id. at 164.
In a later record, Dr. Patel included a note stating:
Patient states he came to see me in Nov 2015, I seen him on 11-11-15 but
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he came again to see me and I was out of town and he seen Jerry
Thacker for right shoulder pain and received physical therapy.
Pet. Ex. 7 at 5 (ECF No. 5-8); see also Pet. Ex. 9 at 5 (handwritten version of similar
note).3
Ms. Wolford testified that eventually she started calling other doctors in the area
that she identified by going through a phone book. Tr. at 164. She could not recall the
names of the offices she called but stated that there were “a few” and that “they couldn’t
get him in because . . . they wanted a referral or where it was the holidays and stuff,
they wanted it two or three months down the road.” Id. at 185. Petitioner’s wife testified
that they did not go to the emergency room because “he was already treating himself
anyways. If he went to the emergency room, they just wouldn’t probably have done no
more than what he’s already done.” Id. at 185. She testified that there are not many
medical providers in the area. Id. at 203.
She contacted the office of chiropractor Dr. Thacker and was told that he could
see petitioner. Id. at 165. She could not recall the interval between when she called Dr.
Thacker’s office and when petitioner was first seen by Dr. Thacker, but said that “it
wasn’t that long. Probably a couple of days . . . they got him in quick.” Id.
On February 16, 2016, petitioner presented to chiropractor Jarrod Thacker, DC
for an examination. Pet. Ex. 5 at 3. The record states:
Patient presents with severe upper thoracic/right shoulder/arm/elbow
thumb pain. Patient explains the pain started after receiving a flu shot in
November 2015. Patient has pain daily 4/5 times a day made worse with
certain movements. Pain ranges from 2-8/10 on a pain scale. Onset:
acute, one week after flu shot was administered. Cause of symptoms: flu
shot.
Pet. Ex. 5 at 3.
On examination, Dr. Thacker found that petitioner presented with “severe
guarding of the neck and right shoulder.” Id. Dr. Thacker treated petitioner to relieve
pain, decrease inflammation, and to improve function, strength, and range of motion.
Id. at 4. Petitioner was given shoulder exercises and stretches for impingement
syndrome. Id.
Petitioner testified that when he saw Dr. Thacker, he told him the reason for his
visit was his arm and the flu shot. Tr. at 45. He testified that he did not tell Dr. Thacker
when the pain began but that his wife did. Id. at 47. Petitioner testified that the
notation stating the onset was one week after the flu shot is not accurate. Id. at 49,
127-28. On cross-examination, respondent’s counsel asked whether petitioner told Dr.
3 Pet. Ex. 7 may be found at ECF No. 5-8. Because Pet. Ex. 7 is not paginated, the reference to page 5
above refers to the page of the PDF when downloaded from CM/ECF.
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Thacker that the onset of his right shoulder pain was acute and was one week after the
flu vaccine was administered. Id. at 128. Petitioner initially responded “yes,” but then
immediately added, “If that’s what – is that what acute means? What does acute
mean?” Id. Respondent’s counsel then asked if petitioner told Dr. Thacker that his right
shoulder pain began one week after the flu shot was given to him, and petitioner replied
“No, no, no. No, no, no, no.” Id. Ms. Wolford testified that “the first time he [petitioner]
seen Dr. Thacker, he told Dr. Thacker that it – it got sore that day he took the shot and
then it got worse that week.” Id. at 206-07.
On February 29, 2016, petitioner saw Dr. Patel with chief complaints of diabetes
mellitus and hypercholesterolemia. Pet. Ex. 4 at 36. The record further indicates that
he had “neck pain, numbness in right arm.” Id. In relation to the neck pain and right
arm numbness, the record indicates that he was “[b]eing followed by chiropractor.” Id.
He was assessed as having “neck pain with probable degenerative disc disease c spine
cervical radicular syndrome right side” as well as osteoarthritis and non-insulin
dependent diabetes mellitus II. Id. at 37. The plan indicated that Dr. Patel “[a]dvised
mri of the c spine, Patient states chiropractor is going to do it.” Id.
At the hearing, petitioner testified that he told Dr. Patel that the shoulder pain
began “[w]hen his nurse had give me the shot, the flu shot.” Tr. at 65. Ms. Wolford
testified that she recalled petitioner “telling him [Dr. Patel] that his – he was having
some trouble out of his arm after the shot, after he took that shot . . . he told him that his
shoulder had been giving him some trouble since he had the shot.” Id. at 169.
On April 11, 2016, petitioner was seen by Dr. Patel. Pet. Ex. 4 at 38. The record
indicates that he presented for a check of his blood sugar and that he had “right
shoulder pain with restricted shoulder movements. Multiple joint pains.” Id. He was
assessed as having “right shoulder pain etiology to be determined,” osteoarthritis, acute
bronchitis, and diabetes mellitus II without complication. Id. at 39. The record indicates
that Dr. Patel. “[a]dvised mri of the right shoulder and Patient is being followed by Dr.
Jarrod Thacker.” Id. Dr. Patel recommended that petitioner restrict his activity and
continue physical therapy. Id.
On April 18, 2016, petitioner was seen by orthopedist Dr. Jamie Varney, MD.
Pet. Ex. 2 at 3. The record indicated that the visit was due to right shoulder pain and
that he stated that “the symptoms began as the result of started hurting after flu shot.”
Id. On examination, petitioner was found to have positive signs on the Hawkins and
Neer’s impingement tests and the cross body test for shoulder joint pathology. Id. at 5.
Dr. Varney’s records indicate that he “[d]iscussed that it is unlikely that the flu shot
actually caused any damage to his shoulder” and noted that an MRI showed chronic
tendinopathy with some tendinitis and bursitis and a downward sloping acromion “that
causes rotator cuff impingement”. Id. at 7. Dr. Varney considered that the “[p]revious
injection [which appears to refer to the flu shot] may have caused some inflammation of
his underlying problems.” Id. Dr. Varney administered a steroid injection into
petitioner’s right shoulder subacromial space. Id. at 6-7.
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Dr. Varney’s records include an Orthopedic Information Sheet filled in by hand.
Pet. Ex. 2 at 10-13. Petitioner and his wife both testified that the handwriting on the
form belongs to petitioner’s wife. Tr. at 73, 175. The completed form indicates that the
appointment was for an injury from a flu shot that occurred at Dr. Patel’s office on
November 11, 2015. Pet. Ex. 2 at 11. The “reason for visit” response indicates pain in
right shoulder, numbness in thumb. Id. In response to a question about when
symptoms started, the answer is “same night got sore.” Id. Petitioner’s wife confirmed
this statement in her testimony. Tr. at 175.
At the hearing, petitioner was questioned about why he accepted a steroid
injection from Dr. Varney but avoided going to the emergency room because he did not
want another shot. Petitioner testified that the steroid injection “was supposed to help
my pain go and everything, but he did make my sugar go up.” Tr. at 135. He further
explained that the shot from Dr. Varney was “in the side of the shoulder . . . . It wasn’t
straight right here up front . . . . I told him I didn’t want to take it there.” Id. at 136.
Petitioner testified that he would not have agreed to the injection if Dr. Varney had tried
to put it in the front of his deltoid. Id. at 137.
Petitioner submitted an expert report from Jeffrey Boyd, M.D., a practicing
diagnostic radiologist specializing in musculoskeletal radiology. Pet. Ex. 13 at 1. Dr.
Boyd stated, “it is my opinion to a reasonable degree of probability that Mr. Wolford’s
MRI findings are consistent with having suffered from a SIRVA, for which the onset of
injury occurred four months prior to the scan.” Id. at 6. Petitioner’s MRI was done on
March 1, 2016, meaning that four months prior to the MRI would be early November.
Pet. Ex. 3 at 2.
III. Legal Standard
Pursuant to Vaccine Act § 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
§ 11(c)(1). A special master may find that the first symptom or manifestation of onset of
an injury occurred “within the time period described in the Vaccine Injury Table even
though the occurrence of such symptom or manifestation was not recorded or was
incorrectly recorded as having occurred outside such period.” Vaccine Act § 13(b)(2).
“Such a finding may be made only upon demonstration by a preponderance of the
evidence that the onset [of the injury] . . . did in fact occur within the time period
described in the Vaccine Injury Table.” Id.
A special master must consider, but is not bound by, any diagnosis, conclusion,
judgment, test result, report, or summary concerning the nature, causation, and
aggravation of petitioner’s injury or illness that is contained in a medical record.
Vaccine Act § 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
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also generally contemporaneous to the medical events.” Curcuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
IV. Finding of Fact
To establish a Table SIRVA claim, a petitioner must establish, inter alia, that
petitioner’s pain occurred within 48 hours of vaccination. See Vaccine Injury Table;
Qualifications and Aids to Interpretation, 42 C.F.R. § 100.3(c)(10). The parties dispute
whether this criterion is met in this case.
In his Rule 4(c) report, respondent argued that petitioner had not established that
the onset of his symptoms occurred within 48 hours of vaccination. Respondent cited
the fact that petitioner did not seek medical care for his asserted vaccine injury until
over three months after vaccination, on February 16, 2016, and that at this visit he
reported that his right arm pain began one week after his November 2015 flu
vaccination. Respondent’s Rule 4(c) report, filed Jan. 16, 2018, at 5 (ECF No. 26).
During the May 23, 2019 status conference, the undersigned ruled that the onset
of petitioner’s symptoms occurred on the evening of November 11, 2015, the night of
the day on which petitioner received his flu vaccination. The undersigned bases her
ruling on the following evidence.
First, on the handwritten orthopedic information sheet, completed by Ms.
Wolford, it states that the injury date was 11-11-15, lists as the injury “flu shot,” and in
response to the pre-printed question of when the symptoms started states “same night
got sore.” Pet. Ex. 2 at 11. Second, Dr. Varney’s note for petitioner’s April 18, 2016
visit indicates “Larry states that the symptoms began as the result of started hurting
after flu shot.” Pet. Ex. 2 at 3. This evidence is supported by the testimony of petitioner
and Ms. Wolford that the nurse told him it would probably be sore, that petitioner’s pain
began the evening of the day he received the vaccine, and that the pain disturbed his
sleep during that first night. Tr. at 17-19, 35, 157-59.
Third, the note of chiropractor Dr. Thacker dated February 16, 2016 states,
“Patient explains the pain started after receiving a flu shot in November 2015.” Pet. Ex.
5 at 3. This record further indicates that the onset was “acute, one week after flu shot
was administered.” Id.
At the hearing, Ms. Wolford testified that her husband reported to Dr. Thacker
that his shoulder “got sore that day he took the shot and then it got worse that week.”
Tr. at 206-07. Dr. Thacker’s note indicating that onset was acute and within one week
is consistent with Ms. Wolford’s explanation of the pain. The undersigned found that
Ms. Wolford’s explanation for why Dr. Thacker’s note noted onset of one week was
reasonable. Although petitioner initially responded “yes” to respondent’s counsel’s
question about whether he reported to Dr. Thacker that the onset was acute, one week
after the flu shot, after obtaining clarification and being asked simply whether he
reported that the onset was one week after the flu shot, petitioner emphatically
responded that this was not correct.
Fourth, petitioner and his wife testified in their affidavits and at the hearing that
petitioner’s pain began on the evening of the flu vaccine, November 11, 2015.
9

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Specifically, Pet. Ex. 11 at ¶¶ 6-7 and the testimony of petitioner and his wife during the
hearing support a finding that the onset of petitioner’s symptoms was the evening of
November 11, 2015. Petitioner testified that when the vaccine was administered, the
nurse “said she felt it tighten up on me, so I don’t know where she did or what, but she
said she felt it tighten up on me.” Tr. at 17. Petitioner testified that he began
experiencing aching and stiffness the evening of the vaccination. Tr. at 19. He testified
that the shoulder pain disturbed his sleep and awoke him at night beginning the first
night following the vaccination. Tr. at 35. Although Mr. Wolford’s testimony was difficult
to understand, he consistently placed the onset of his symptoms at the evening of the
vaccination.
Ms. Wolford’s testimony also consistently placed onset of petitioner’s symptoms
as occurring by the evening of the day the vaccine was administered. Ms. Wolford
recalled that when the nurse gave petitioner his shot, “she just, kind of like said, he’d
probably be a little sore because I felt it jerk.” Tr. at 157. She recalled the first name of
the nurse who administered the vaccine, which is supported by the vaccine
administration record. She testified, “after we got home, he was complaining with it
being sore, just like sore, a dull, aching sore, and – but he thought, you know, it was just
normal.” Tr. at 158. She testified that she did not call Dr. Patel’s office that day about
her husband’s pain because the nurse “said it was going to get sore, so he just thought
it would be normal.” Tr. at 201.
Dr. Boyd’s expert report found that petitioner’s MRI findings were consistent with
him having suffered a SIRVA in early November. This provides further support for the
undersigned’s finding that petitioner’s onset occurred soon after his November 11, 2015
vaccination.
Respondent places great weight on the fact that petitioner did not seek medical
care for approximately three months after vaccination. The undersigned notes that a
delay in seeking care is not uncommon in SIRVA cases and is not dispositive. See
Cooper v. Sec’y of Health and Human Servs., No. 16-1387V, 2018 WL 1835179, at *6
(Fed. Cl. Spec. Mstr. Jan. 18, 2018) (“the undersigned does not find a delay in
treatment of several months to be dispositive in and of itself regarding the question of
onset in a SIRVA case such as this”); see also Tenneson v. Sec’y of Health & Human
Servs., No. 16-1664V, 2018 WL 3083140 (Fed. Cl. Spec. Mstr. Mar. 30, 2018); Ray v.
Sec’y of Health and Human Servs., No. 16-1388V, 2018 WL 7051571, at *6 (Fed. Cl.
Spec. Mstr. Dec. 17, 2018) (citing Cooper). The Vaccine Act “does not mandate that
the time of first onset be determined by the earliest entry” in the medical records. Lopez
v. Sec’y of Health & Human Servs., No. 90-12V, 1990 WL 293414 (Cl. Ct. Spec. Mstr.
Dec. 10, 1990).
In this case, petitioner and Ms. Wolford testified that they live in a remote area
with few doctors. They testified that the nurse told petitioner that the injection site may
be painful as she had noted it “jerk” when she administered the vaccine. They testified
that because it was anticipated that petitioner’s shoulder would be sore, petitioner did
not pursue medical treatment immediately. They testified that when petitioner did
10

Case 1:17-vv-00451-UNJ Document 59 Filed 10/17/19 Page 11 of 13
attempt to obtain care, his primary care physician was away for an extended period of
time.
The phone records filed by petitioner demonstrate that numerous calls were
made from their phone number to two numbers in Grundy, VA between the date of
vaccination and the date when petitioner first saw Dr. Thacker. The lack of record
evidence establishing who these phone numbers belong to limits the value of this piece
of evidence. Nonetheless, these phone records serve to bolster the testimony of
petitioner and his wife.
Petitioner and his wife testified that, because these events took place over the
holidays, other doctors were unable to fit him in promptly. During this time, petitioner
self-treated to alleviate his pain by using over the counter medications and a homemade
sling made from a sock.
Under these circumstances, the undersigned finds that a three-month delay in
receiving medical treatment is reasonable and does not cast doubt on whether
petitioner’s injury occurred within 48 hours of vaccination.
Respondent also emphasizes that Dr. Thacker’s record indicates that the onset
of petitioner’s symptoms occurred one week after the flu vaccination. While Dr.
Thacker’s record does state that onset was one week after the flu vaccine, that is not
dispositive. The Vaccine Act contemplates that a record may incorrectly record onset or
fail to record onset and provides that:
The special master or court may find the first symptom or manifestation of
onset or significant aggravation of an injury, disability, illness, condition, or
death described in a petition occurred within the time period described in
the Vaccine Injury Table even though the occurrence of such symptom or
manifestation was not recorded or was incorrectly recorded as having
occurred outside such period.
Vaccine Act § 13(b)(2) (emphasis added)
Thus, the exact circumstances present in this case are contemplated by the
Vaccine Act. The fact that a medical record does not record onset or records a time of
onset outside of the Table provisions does not automatically eliminate the possibility
that a petitioner can establish a Table claim. Rather, petitioner may still prove a Table
claim if he demonstrates, by a preponderance of the evidence, that onset occurred
within the time set forth in the Table. In this case, petitioner has done so.
The undersigned found that Ms. Wolford’s explanation, that petitioner reported to
Dr. Thacker onset of pain the evening of November 11, 2015 and reported that the
symptoms worsened over the week following the flu shot, provides a reasonable
explanation for Dr. Thacker’s recorded time of onset. See, e.g., Stevens v. Sec’y of
Health & Human Servs., 90-221V, 1990 WL 608693, at *3 (Cl. Ct. Spec. Mstr. 1990)
11

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(noting that clear, cogent, and consistent testimony can overcome missing or
contradictory medical records).
Based on the undersigned’s review of the record as a whole, in particular the
portions cited herein, the undersigned finds that that the fact that (1) petitioner did not
receive medical care until three months after vaccination and (2) the medical record
from petitioner’s February 16, 2016 appointment with Dr. Thacker lists onset as one
week after the flu shot, do not establish that the onset of petitioner’s shoulder pain did
not occur within 48 hours of vaccination. After a review of all evidence, the undersigned
finds that petitioner has established, by a preponderance of the evidence, that the onset
of his shoulder pain occurred within 48 hours of his November 11, 2015 flu vaccination.
V. Respondent’s Request for Post-Hearing Briefing
The undersigned acknowledges that during the May 23, 2019 status conference
and in his June 12, 2019 status report, respondent indicated an interest in post-hearing
briefing. The undersigned determines that there is sufficient record evidence for a ruling
on the record on onset and that, in this case, briefing would not be helpful in evaluating
the evidence and determining the factual issue of onset.
Pursuant to Vaccine Rule 8(a), a special master is required “to determine the
format for taking evidence and hearing argument based on the specific circumstances
of each case and after consultation with the parties.” Vaccine Rule 8(a). “In any matter
not specifically addressed by the Vaccine Rules, the special master or the court may
regulate the applicable practice, consistent with these rules and with the purpose of the
Vaccine Act, to decide the case promptly and efficiently.” Vaccine Rule 1(b). In
conducting proceedings, a special master is responsible for “endeavoring to make the
proceedings expeditious, flexible, and less adversarial, while at the same time affording
each party a full and fair opportunity to present its case.” Vaccine Rule 3(b)(2).
The Vaccine Rules do not provide for routine briefing on factual issues and do
not require or contemplate post-hearing briefing. Rather, the rules provide special
masters with considerable flexibility in determining the appropriate procedures on a
case by case basis. In so doing, the special master is to select procedures that are
consistent with the program’s goal of making proceedings expeditious and less
adversarial while ensuring that all parties are given the opportunity to present their case.
In other cases, special masters have made onset rulings in other cases without
post-hearing briefing. See, e.g., Sherbine (Tinley) v. Sec’y of Health and Human
Servs., No. 17-0413, 2018 WL 5276612 (Fed. Cl. Spec. Mstr. Sept. 5, 2018); Brown v.
Sec’y of Health and Human Servs., No. 13-766, 2015 WL 4626797 (Fed. Cl. Spec. Mstr.
July 14, 2015) (issuing ruling on onset following fact hearing without briefing); see also
Caron v. Sec’y of Health and Human Servs., No. 15-0777, 2016 WL 7664309 (Fed. Cl.
Spec. Mstr. Dec. 14, 2016) (resolving onset without post-hearing briefing, although
onset was briefed prior to hearing).
12

Case 1:17-vv-00451-UNJ Document 59 Filed 10/17/19 Page 13 of 13
In this case, respondent filed his Rule 4(c) report contesting entitlement based in
part on concerns about onset nearly 18 months ago. Both parties have had ample
opportunity to present their case since that time. In this case in particular, the
undersigned finds that the record contains sufficient evidence to make a ruling on onset
without the need for briefs. Thus, the undersigned determines that post-hearing briefs
are not necessary or appropriate in this case.
VI. Conclusion
In light of all of the above, and in view of the submitted evidence, including the
medical records, witness testimony, and affidavits, the undersigned finds that the
onset of petitioner’s right shoulder injuries was within 48 hours of vaccination.
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
13

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_17-vv-00451-1
Date issued/filed: 2021-08-03
Pages: 20
Docket text: PUBLIC ORDER/RULING (Originally filed: 7/9/2021) regarding 80 Ruling on Entitlement. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made. (Main Document 83 replaced on 9/20/2021 to correct petitioner's counsel firm and location) (sw).
--------------------------------------------------------------------------------
Case 1:17-vv-00451-UNJ Document 83 Filed 08/03/21 Page 1 of 20
CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 9, 2021
* * * * * * * * * * * * * * * * * * * * * * * * *
LARRY WOLFORD, * PUBLISHED
*
Petitioner, * No. 17-451V
*
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”).
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Isaiah Richard Kalinowski, Maglio Christopher and Toale, PA, Washington, DC, for petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On March 29, 2017, Larry Wolford (“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
the result of an influenza (“flu”) vaccination administered on November 11, 2015. Petition at 1-
3 (ECF No. 1).
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 1:17-vv-00451-UNJ Document 83 Filed 08/03/21 Page 2 of 20
After carefully analyzing and weighing the evidence presented in this case in accordance
with the applicable legal standards, the undersigned finds that petitioner has provided
preponderant evidence that the flu vaccine caused his right shoulder injury, 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 March 29, 2017, alleging that he sustained a right shoulder
injury caused by a flu vaccine administered on November 11, 2015. Petition at 1-3. The early
procedural history from March 2017 through June 2019 was set forth in the undersigned’s Fact
Ruling and will not be repeated here. Fact Ruling dated July 8, 2019, at 2-3 (ECF No. 56).
Thereafter, this case was removed from the Special Processing Unit (“SPU”). Petitioner
filed additional documentation between August and December 2019. Pet. Exs. 30-32. On March
20, 2020, petitioner filed an expert report from Dr. Tony Korman. Pet. Ex. 33. Respondent filed
an expert report from Dr. Paul Cagle on July 27, 2020. Resp. Ex. A.
On September 22, 2020, petitioner filed a memorandum in support of petitioner’s
entitlement to compensation. Memorandum in Support of Petitioner’s Entitlement to
Compensation (“Pet. Memo.”), filed Sept. 22, 2020 (ECF No. 75). Respondent filed his
response on November 13, 2020. Respondent’s Response to Pet. Motion for Ruling on the
Record (“Resp. Response”), filed Nov. 13, 2020 (ECF No. 78). Petitioner filed a reply on
December 1, 2020. Reply Memo. in Support of Pet. Entitlement to Compensation (“Pet.
Reply”), filed Dec. 1, 2020 (ECF No. 79).
This matter is now ripe for adjudication.
II. FACTUAL HISTORY
A. Pre-Vaccination Medical History
Petitioner’s pre-vaccination medical history is significant for non-insulin dependent
diabetes mellitus, diabetic neuropathy, weakness, fatigue, numbness in hands and legs, backache,
multiple joint pains, gastroesophageal reflux disease, depression, and osteoarthritis. Pet. Ex. 4 at
4-5, 7, 16, 26, 28.
On November 9, 2005, while working in the coal mines as a fine clean coal operator,
petitioner injured his lower back when lifting 55 gallon wood barrels. Pet. Ex. 31 at 9-10, 19, 59.
In his worker’s compensation claim,3 he explained that by November 14, the pain was so severe
he sought medical treatment. Id. at 10. At the time he filed his claim on April 27, 2006, he was
undergoing physical therapy, taking pain medications, and unable to return to work. Id. at 10-11.
3 In his 2006 workers compensation claim, petitioner indicated he filed another worker’s
compensation claim in 1985 after cutting his leg with a chainsaw. Pet. Ex. 31 at 11.
2

Case 1:17-vv-00451-UNJ Document 83 Filed 08/03/21 Page 3 of 20
According to petitioner’s workers compensation file and social security records,
petitioner’s complaints of multiple joint pain began in 2005. Pet. Ex. 31 at 141; Pet. Ex. 32 at
167. Petitioner was diagnosed with osteoarthritis.4 Id. In physical therapy records from 2005,
petitioner reported a history of osteoarthritis in right hip and knee. Pet. Ex. 32 at 110. No
records indicate that petitioner had right shoulder pain prior to vaccination.
B. Post-Vaccination Medical History
The Fact Ruling set forth a summary of petitioner’s medical records, affidavits, and
hearing testimony relative to onset of his right shoulder injury. See Fact Ruling at 3-8. Only the
relevant portions will be repeated here. In the Fact Ruling, the undersigned found the onset of
petitioner’s right shoulder injury was within 48 hours of vaccination. Id. at 13.
On November 11, 2015, at fifty-three years old, petitioner was seen by his primary care
physician, Dr. Patel. Pet. Ex. 4 at 34. Current medications included Ultram,5 Cymbalta,6 and
Neurontin.7 Id. at 34-35. Chief complaints were diabetes mellitus and hypercholesterolemia. Id.
at 34. Petitioner also complained of backache and itching and rash on his right arm. Id. He
came for a check up on his blood sugar and wanted a flu vaccine. Id. Physical examination by
Dr. Patel revealed tenderness in lower back, dermatitis on right arm, and normal range of motion.
4 Osteoarthritis is “a noninflammatory degenerative joint disease seen mainly in older persons,
characterized by degeneration of the articular cartilage, hypertrophy of bone at the margins, and
changes in the synovial membrane,” and “[i]t is accompanied by pain.” Osteoarthritis, Dorland’s
Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=35780 (last
visited June 23, 2021).
5 Ultram is a trademark for tramadol hydrochloride, “an opioid analgesic used for the treatment
of moderate to moderately sever pain following surgical procedures and oral surgery.” Ultram,
Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=
51748 (last visited June 23, 2021); Tramadol Hydrochloride, Dorland’s Med. Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=50542 (last visited June 23, 2021).
6 Cymbalta, a trademark for duloxetine hydrochloride, is used for “the relief of pain in diabetic
neuropathy.” Cymbalta, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/
dorland/definition?id=12214 (last visited June 23, 2021); Duloxetine Hydrochloride, Dorland’s
Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=15011 (last
visited June 23, 2021).
7 Neurontin, or gabapentin, is used to treat and manage postherpetic neuralgia, or “persistent
burning pain and hyperesthesia along the distribution of a cutaneous nerve.” Neurontin,
Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=
33803 (last visited June 23, 2021); Gabapentin, Dorland’s Med. Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=19523 (last visited June 23, 2021);
Postherpetic Neuralgia, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/
dorland/definition?id=92490 (last visited June 23, 2021).
3

Case 1:17-vv-00451-UNJ Document 83 Filed 08/03/21 Page 4 of 20
Id. At this visit, Ms. Lynette Gibson administered a flu vaccine in petitioner’s right deltoid. Pet.
Ex. 10 at 1. Dr. Patel documented, “Flu Vaccine given. No reaction noted.” Pet. Ex. 4 at 35.
At the fact hearing, petitioner testified that when the vaccine was administered, the nurse
“said she felt it tighten up on [him], so [he did not] know where she did or what, but she said she
felt it tighten up on [him].” Tr. 17. He explained that “when she pulled the needle out, she said
it tightened up on her . . . she felt it jerk, the muscle tightened up and everything.” Tr. 109-10.
Ms. Wolford testified that “when [the nurse] gave [petitioner] his shot she just kind of—I guess
laughed a little bit and said he’d probably get sore because [she] felt it jerk.” Tr. 157-58, 199.
Ms. Wolford testified that she was present during the entire visit with Dr. Patel on November 11,
2015 when petitioner received his flu shot and that she also received a flu shot during this visit.
Tr. 157.
Petitioner testified that he began experiencing aching and stiffness the evening of the
vaccination. Tr. 19. His shoulder pain disturbed his sleep and woke him up at night beginning
the first night following the vaccination. Tr. 35. He had to start driving with one hand “[r]ight
after the vaccine.” Tr. 36. He explained that a day or two later he developed a stabbing pain.
Tr. 26.
Ms. Wolford testified that after they got home, petitioner complained of his shoulder
being “sore, a dull, aching sore,” but they thought it was normal. Tr. 158. She testified that she
did not call Dr. Patel’s office that day about petitioner’s pain because the nurse “said it was
going to get sore, so he just thought it would be normal.” Tr. 201; see also Tr. 159. She
explained, however, the soreness did not go away but worsened. Tr. 158-59. The day after
vaccination, “[petitioner] just all of a sudden would be hollering, ouch, and grabbing to his arm.”
Tr. 159.
Petitioner explained that he made a “sleeve,” or sling, out of a compression sock that,
when worn as a sleeve, warmed his arm and reduced his discomfort. Tr. 19-20, 26, 31-33. His
pain also got better with Tylenol, ibuprofen, and Icy Hot. Tr. 118-19. Ms. Wolford also testified
to these facts. Tr. 159.
Ms. Wolford testified that as time went on in November and December 2015, petitioner
would “treat it for a while and then it would go away, and it’d like just come back . . . . [She]
remember[ed] him propping it up on, like, a pillow to ease the pain.” Tr. 160. They also did this
with other items like quilts. Id. Ms. Wolford recalled seeing petitioner “trying to comb his hair,
and he couldn’t get his arm up over his head to comb his hair, like he was having trouble moving
his arm.” Tr. 161. She could not recall when she observed this but stated that it was before
April 2016 and possibly before February 2016. Tr. 161, 173-74.
Ms. Wolford testified that she was not sure when she first called Dr. Patel’s office, but
believed it was sometime around mid-November or Thanksgiving. Tr. 162-63, 202. She
testified that she was told that Dr. Patel “was out of the country at that time” and that he would
4

Case 1:17-vv-00451-UNJ Document 83 Filed 08/03/21 Page 5 of 20
be gone for a month.8 Tr. 163, 205. Petitioner’s wife testified that petitioner did not see another
doctor in the practice because Dr. Patel had “been his doctor for years. He’s the only one he
sees” and they planned to “wait for him to come back.” Tr. 163-64. She testified that she did
not initially look for other doctors because petitioner was treating himself and the pain was
coming and going. Tr. 164.
Ms. Wolford testified that eventually she started calling other doctors in the area that she
identified by going through a phone book. Tr. 164. She could not recall the names of the offices
she called but stated that there were “a few” and that “they couldn’t get him in because . . . they
wanted a referral or where it was the holidays and stuff, they wanted it two or three months down
the road.” Tr. 185. She contacted the office of chiropractor Dr. Jarrod Thacker and was told that
he could see petitioner. Tr. 165. She could not recall the interval between when she called Dr.
Thacker’s office and when petitioner was first seen by Dr. Thacker, but said that “it wasn’t that
long. Probably a couple of days . . . they got him in quick.” Id.
Petitioner presented to Dr. Thacker on February 16, 2016 with “severe upper
thoracic/right shoulder/arm/elbow thumb pain” that “started after receiving a flu shot in
November 2015.” Pet. Ex. 5 at 3. Petitioner noted onset as “acute, one week after flu shot was
administered.”9 Id. Petitioner reported “pain daily 4/5 times a day [and] made worse with
certain movements. Pain ranges from 2-8/10 on a pain scale.” Id. Pain was described as “achy,
burning, dull, sharp, stiff, throbbing,” and moderate. Id. Petitioner further reported numbness in
right hand, severe spasms in right cervical paraspinal and right trapezius, right upper extremity
weakness, and decreased cervical motion. Id. He indicated he was only able to lift 25 pounds
and his sleep was affected. Id. On physical examination, Dr. Thacker wrote petitioner “presents
with severe [guarding] of the neck and right shoulder.” Id. Petitioner had decreased range of
motion. Id. Dr. Thacker treated petitioner to relieve pain, decrease inflammation, and to
improve function, strength, and range of motion. Id. at 4. Petitioner was given shoulder
exercises and stretches for impingement syndrome. Id.
Petitioner returned to Dr. Thacker numerous times from February to November 2016.
Pet. Ex. 5 at 6-56; Pet. Ex. 6 at 2-22, 24-32. During the February 24, 2016 visit, Dr. Thacker
wrote “[a] MRI consult was discussed with [petitioner] because progression not optimal.
8 In a later record, Dr. Patel included a note stating, “[petitioner] states he came to see me in
Nov[ember] 2015, I [saw] him on 11-11-15 but he came again to see me and I was out of town
and he [saw] Jerry Thacker for right shoulder pain and received physical therapy.” Pet. Ex. 7 at
5; see also Pet. Ex. 9 at 5 (handwritten version of similar note).
9 Petitioner testified that the notation stating the onset was one week after the flu shot is not
accurate. Tr. 49, 127-28, 206-07.
5

Case 1:17-vv-00451-UNJ Document 83 Filed 08/03/21 Page 6 of 20
[Petitioner] would need to visit PCP (Dr. D Patel) to obtain order form [for] R shoulder MRI.”10
Pet. Ex. 5 at 13.
On February 29, 2016, petitioner returned to Dr. Patel’s office11 with a chief complaint of
diabetes mellitus and hypercholesterolemia. Pet. Ex. 4 at 36. Under review of systems,
petitioner complained of neck pain and numbness in right arm and reported seeing a
chiropractor. Id. Physical examination revealed tenderness in back of neck with painful neck
movements, no stiffness in neck, and normal range of motion. Id. Assessment included “neck
pain with probable degenerative disc disease c spine,” “cervical radicular syndrome right side,”
and osteoarthritis. Id. at 37. Petitioner was advised to have an MRI of his cervical spine done.12
Id.
An MRI of petitioner’s right shoulder was conducted on March 1, 2016. Pet. Ex. 3 at 2.
Diagnosis was listed as shoulder pain and soreness after flu shot. Id. The impression was
“[s]omewhat inferiorly projecting acromion process with mild increased signal intensity changes
in the subacromial bursa could represent impingement syndrome[13] or from bursitis. [14] Study
otherwise is negative for rotator cuff tear.” Id.
Dr. Thacker’s examinations in March and April 2016 “show[ed] minimal to no
improvement in [petitioner’s] subjective or objective complaints/findings.” Pet. Ex. 5 at 24, 48.
Dr. Thacker discussed a referral to an orthopedist for an injection. Id.
10 Dr. Thacker’s additional patient notes regarding petitioner’s shoulder MRI are as follows:
4-7-16: Appointment with patient PCP was set up for 4-13-16 to obtain order for
right shoulder MRI. Patient progress not showing expected results. Patient still
suffering from severe pain when certain motions are sought (Mostly
overhead/abduction/adduction to R shoulder).
4/14/16: Patient had follow up visit with PCP to get a MRI on R shoulder.
4/28/16: Patient was referred to orthopedist for consultation of cortisone injection
into right shoulder. Injection was administered by Dr. Varney at PMC.
Pet. Ex. 5 at 2.
11 It is not clear from the record who petitioner saw during this visit.
12 No records were provided indicating petitioner received a cervical spine MRI. Based on the
medical records, it appears petitioner received only a right shoulder MRI.
13 Impingement syndrome results from “mechanical impingement by the acromion,
coracoacromial ligament, coracoid process, or acromioclavicular joint against the rotator cuff.”
Impingement Syndrome, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/
dorland/definition?id=110796 (last visited July 6, 2021).
14 Bursitis is “inflammation of a bursa.” Bursitis, Dorland’s Med. Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=7315 (last visited July 6, 2021).
6

Case 1:17-vv-00451-UNJ Document 83 Filed 08/03/21 Page 7 of 20
Petitioner returned to Dr. Patel’s office15 on April 11, 2016. Pet. Ex. 4 at 38. Petitioner
complained of “right shoulder pain with restricted shoulder movements” as well as multiple joint
pain. Id. Physical examination revealed right shoulder tenderness with marked restricted
movements and normal range of motion. Id. Assessment included “right shoulder pain etiology
to be determined.” Id. at 39. Under plan, the record indicates “[a]dvised mri of the right
shoulder and [petitioner] is being followed by Dr. [] Thacker.” Id. Petitioner was instructed to
continue physical therapy. Id.
On April 18, 2016, petitioner saw orthopedist Dr. Jamie Varney at Pikeville Medical
Center complaining of right shoulder pain. Pet. Ex. 2 at 3, 7. Petitioner stated “the symptoms
have been chronic non-traumatic,” occur intermittently, and “began . . . after flu shot.” Id. at 3.
He described the pain as “piercing” and reported additional pain in his right thumb. Id. at 3, 12.
He indicated his “symptoms are aggravated by daily activities and reaching overhead,” but are
“relieved by physical therapy.” Id. At the time of the visit, petitioner reported his symptoms
were moderate and his pain was a 2/10. Id. at 3, 11. In a handwritten orthopedic information
sheet completed on April 18, 2016,16 petitioner related his injury back to the flu vaccine received
on November 11, 2015 and listed his reason for visit as “pain in right shoulder [and] numbness in
thumb.” Id. at 11. For when his symptoms started, he wrote “same night got sore.” Id. He also
described the pain as stabbing and noted it “randomly” goes from 2/10 to 8/10. Id.
Physical examination revealed positive signs on Hawkins and Neer’s tests and the cross
body test for shoulder joint pathology. Pet. Ex. 2 at 5. Range of motion in petitioner’s left
shoulder was normal, but there was “pain in impingement arc” noted with regard to petitioner’s
right shoulder. Id. at 6. Elbow and wrist range of motion in both extremities was normal. Id.
Upper extremity strength was normal except for “mild decreased right supraspinatus due to
pain.” Id. Neurovascular upper extremity examination was normal, although petitioner reported
“some decreased sensation on the inner aspect of his thumb.” Id. Assessment was impingement
syndrome and bursitis of right shoulder. Id. Petitioner received a cortisone injection in the
subacromial space in his right shoulder. Id. Dr. Varney stated, “it is unlikely that the flu shot
actually caused any damage to his shoulder. MRIs . . . show[] chronic tendinopathy of
supraspinatus with some tendinitis and bursitis. Also has a downward sloping acromion that
causes rotator cuff impingement. Previous injection may have [] caused some inflammation of
his underlying problems.”17 Id. at 7. Petitioner was advised to continue home exercises and
physical therapy and ice and take anti-inflammatories as needed. Id.
On August 16, 2016, petitioner returned to Dr. Patel for diabetes mellitus and
hypercholesterolemia. Pet. Ex. 7 at 2. Petitioner did not complain of shoulder pain at this visit.
See id. Physical examination revealed normal range of motion. Id.
15 Again, it is not clear from the record who petitioner saw during this visit.
16 Petitioner and his wife both testified that the handwriting on the form belongs to petitioner’s
wife. Tr. 73, 175.
17 Dr. Varney does not define “previous injection.” It appears, however, based on the context of
the note, that Dr. Varney was referring to the flu vaccination.
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On July 21, 2016, petitioner saw Dr. Thacker who noted petitioner “re-injured right
shoulder after hanging drywall for 4 hours [on] 7/18/16.” Pet. Ex. 6 at 17.
Petitioner saw Dr. Patel on October 4, 2016, complaining of “rash on the arm with itching
backache, numbness in legs. Came for check up on blood sugar. Cough, chest congestion.” Pet.
Ex. 7 at 4. On physical examination, range of motion was normal. Id. Dr. Patel noted petitioner
saw Dr. Thacker for right shoulder pain and received physical therapy. Id. at 5.
Petitioner complained of diabetes mellitus, hypercholesterolemia, multiple join pain,
numbness in legs, and a cough during a visit to Dr. Patel on December 7, 2016. Pet. Ex. 7 at 6.
Petitioner did not complain of right shoulder pain during this visit. See id. Range of motion was
normal on physical examination. Id.
Petitioner saw Dr. Patel next on March 9, 2017. Pet. Ex. 9 at 1-2. No complaints of right
shoulder pain were noted. See id. Physical examination revealed normal range of motion. Id. at
1. “Right elbow region pain” and “normal range of motion” were noted in petitioner’s next visit
to Dr. Patel on June 14, 2017. Id. at 3-4.
No additional medical records were provided.
III. EXPERT REPORTS
A. Petitioner’s Expert, Dr. Jeffrey Boyd
1. Background and Qualifications
Dr. Boyd is a practicing diagnostic radiologist specializing in musculoskeletal radiology.
Pet. Ex. 13 at 1. He is board certified in diagnostic radiology. Id. Dr. Boyd received his B.A. in
Biochemistry in 2001 and his M.D. in 2005 from the University of Mississippi. Pet. Ex. 14 at 1.
Thereafter, he completed an internship in internal medicine, residency in diagnostic radiology,
and a fellowship in musculoskeletal radiology. Id. He holds licenses in Kentucky, Indiana,
Mississippi, Tennessee, and Arkansas. Id.
2. Opinion
Dr. Boyd opined that more likely than not petitioner’s November 11, 2015 flu
vaccination caused petitioner to experience a shoulder injury related to vaccine administration
(“SIRVA”), which he continues to suffer from. Pet. Ex. 13 at 8.
For support that a flu vaccine can cause a SIRVA, Dr. Boyd cited Atanasoff et al.18 Pet.
Ex. 13 at 5. In Atanasoff et al., the authors identified thirteen cases filed in the database of
claims submitted to the Vaccine Program between 2006 to 2010 where “vaccine administration
led to significant shoulder pain and dysfunction.” Pet. Ex. 15 at 1-2. Based on their
18 S. Atanasoff et al., Shoulder Injury Related to Vaccine Administration (SIRVA), 28 Vaccine
8049 (2010).
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investigation, the authors’ proposed mechanism “is the unintentional injection of antigenic
material into synovial tissues resulting 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. Boyd agreed with the March 1, 2016 right shoulder MRI findings and opined that the
findings are consistent with a SIRVA injury. Pet. Ex. 13 at 3, 6. He acknowledged that
petitioner’s findings of mild tendinopathy in his supraspinatus and infraspinatus tendons, mild
degenerative changes in his acromioclavicular joint, and lateral downsloping of his acromial
process are consistent with normal aging and a labor-intensive career. Id. at 6. Although
“arthrosis of the acromioclavicular joint and a lateral downsloping acromion can predispose []
subacromial impingement and inflammation in the bursa,” Dr. Boyd opined that it did not in
petitioner’s case because petitioner was asymptomatic prior to his flu vaccination. Id. at 6-7.
Petitioner’s MRI showed inflammation of the subacromial/subdeltoid bursa, which Dr. Boyd
believed was most likely the source of petitioner symptoms. Id. at 7. He found “no evidence of
any other internal derangement of the shoulder to explain [petitioner’s] symptoms.” Id. at 3.
Knowing that petitioner received a vaccine in the right shoulder and that he was asymptomatic
prior to vaccination, Dr. Boyd opined that “SIRVA would have to be included as a leading
differential consideration for the source of his bursal inflammation.” Id.
Dr. Boyd opined that the placement of injection “may likely” have affected petitioner.
Pet. Ex. 13 at 7. He cited to the administering nurse’s note that documented a “jerk” upon
administration and that fact that she warned petitioner of a likelihood of soreness due to the
abnormality in administration. Id.
With regard to onset, Dr. Boyd opined that petitioner consistently attributed the onset of
his systems to his November 2015 flu vaccination. Pet. Ex. 13 at 7. Such a timeframe is
consistent with the SIRVA medical literature. Id. at 7-8. Dr. Boyd found petitioner’s initial pain
due to direct needle trauma and petitioner’s worsening pain due to persistent immune-mediated
inflammatory response. Id. at 8.
Petitioner’s injury is further consistent with a SIRVA diagnosis because he suffered from
pain and limited or painful range of motion in his right shoulder. Pet. Ex. 13 at 7. He opined
that petitioner’s reduced range of motion is consistent with subacromial/subdeltoid bursitis,
which can occur after a SIRVA, but not with a radiculopathy. Id. at 8.
Dr. Boyd found no evidence to support a neurologic etiology. Pet. Ex. 13 at 8. Nor did
he find any evidence of another condition to explain petitioner’s pain or loss of range of motion
in his shoulder. Id. He opined petitioner had no prior injury or chronic condition that could
explain his symptoms, and there was no other contemporaneous injury other than vaccination to
explain his symptoms. Id.
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B. Petitioner’s Expert, Dr. Tony M. Korman
1. Background and Qualifications
Dr. Korman is the Director of Infectious Diseases and Director of Microbiology at
Monash Health as well as an Adjunct Clinical Professor and Microbiologist at Monash
University in Australia. Pet. Ex. 33 at 2; Pet. Ex. 34 at 1. He received his Bachelor of Medicine
in 1988, then completed an internship, residency, and multiple fellowships from 1989 to 1997.
Pet. Ex. 34 at 3. He has authored or co-authored numerous publications, participates as a
reviewer for multiple journals, and is a member of various committees and societies. Id. at 4-40,
47, 53-54.
2. Opinion
Dr. Korman opined that petitioner, more likely than not, developed subacromial bursitis
and impingement syndrome as a direct result of, and within 12 hours of, his flu vaccination. Pet.
Ex. 33 at 4-5.
Like Dr. Boyd, Dr. Korman cited to Atanasoff et al. for support of the proposed
mechanism of injury in SIRVA cases. Pet. Ex. 33 at 2-3. He explained the mechanism is “the
unintentional injection of antigenic material into synovial tissues resulting in an immune-
mediated inflammatory reaction.” Id. (quoting Pet. Ex. 15 at 1). Dr. Korman added that “[a]
robust and prolonged reaction may be the response of a sensitised population who have had
antigenic exposure from previous vaccination or previous infection.” Id. at 4. An
“[u]nintentional injection into the synovial bursa or the glenohumeral joint can induce an intense
immune and inflammatory response in the shoulder capsule and bursitis.” Id.
Dr. Korman also discussed how SIRVA can be associated with vaccine administration
technique. Pet. Ex. 33 at 4. For example, vaccines have been reported to have been
administered “very high” in the arm, between 1 and 3 cm from the acromion. Id. Dr. Korman
cited to Bodor and Montalvo19 as evidence that vaccines have been “unintentionally delivered
into the subdeltoid bursa or glenohumeral joint space because of its proximity to the deltoid
muscle.” Id. In Bodor and Montalvo, the authors 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. 18 at 1-2.
They explained, “[g]iven 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. at 2. 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 vaccination-related shoulder dysfunction . . . [should] be considered in patients
presenting with shoulder pain and weakness following a vaccine injection.” Id.
19 Marko Bodor & Enoch Montalvo, Vaccination-Related Shoulder Dysfunction, 25 Vaccine 585
(2007).
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With regard to petitioner’s shoulder injury, Dr Korman opined petitioner had no prior
history of shoulder pain or limitations with range of motion. Pet. Ex. 33 at 4. Dr. Korman found
petitioner’s shoulder MRI showing subacromial bursitis or impingement syndrome was
consistent with a SIRVA. Id. He found petitioner’s complaints of shoulder pain when reaching
overhead to be associated with the injury suffered by petitioner. Id. at 5. Additionally, although
petitioner had some improvement in his pain after a corticosteroid injection in April 2016, he
continued to experience limited range of motion through August 2016. Id. Dr. Korman
concluded that petitioner continues to suffer from his shoulder injury. Id. at 6.
Additionally, Dr. Korman opined there was no other condition to explain petitioner’s pain
and loss of range of motion. Pet. Ex. 33 at 4. Although there is an entry from Dr. Thacker
stating petitioner reinjured his shoulder after hanging drywall, Dr. Korman noted that petitioner
testified that he had not hung drywall for 20 years. Id. at 5. Assuming Dr. Thacker’s record is
accurate, he found Dr. Thacker determined this was a “re-injury” to the SIRVA injury. Id. Thus,
he opined it was “reasonable to conclude that this ‘re-injury’ would not have occurred were it not
for the earlier vaccination and the resultant shoulder injury, which could have been aggravated
by rigorous use, and activities like hanging drywall certainly comport with that description.” Id.
Dr. Korman also opined that petitioner suffered a typical SIRVA, where a previously
asymptomatic shoulder condition is aggravated by an injection of a flu vaccine into the bursa,
which was accompanied by secondary neurologic symptoms due to the effect and possible
additional trauma to axillary nerve. Pet. Ex. 33 at 5. He found petitioner’s injury was not
neurologic, “even if there were second-order neurologic symptoms that arose after the shoulder
was injured by the vaccination.” Id. Dr. Korman found “[p]ain or numbness in the neck and
hand on the side where [petitioner’s] vaccination was administered is readily attributable to
direct injury to the axillary nerve and/or as a secondary effect from the immobilization and
guarding of the arm after the injury first occurred.” Id. Thus, he concluded that “[r]egardless of
the precise etiology of [petitioner’s] neurologic symptoms,” petitioner’s symptoms and clinical
course are consistent with a SIRVA. Id.
He cited medical literature to support the proposition that direct nerve injuries can occur
due to needle trauma. Pet. Ex. 33 at 5. For example, Cook20 developed an evidence-based
protocol for safe vaccine administration into the deltoid muscle “by making anthropometric
measurements of the surface anatomical landmarks” in 536 adults and “mapping the position of
structures potentially injured by vaccine administration in relation to these landmarks.” Pet. Ex.
24 at 1, 3. Cook found injections administered in certain locations “have the potential to cause
injury to the subdeltoid/subacromial bursa and/or the anterior branch of the axillary nerve with
the arm in the neutral position.” Id. at 4. Cook also determined the radial nerve can be
compromised when vaccines are administered outside the recommended area. Id.
Dr. Korman found the short onset interval between vaccination and pain, along with the
lack of an alternative etiology, to be “convincing evidence linking [petitioner’s] shoulder pain
associated with subacromial bursitis and vaccine administration.” Pet. Ex. 33 at 5. Thus, for all
20 Ian F. Cook, An Evidence Based Protocol for the Prevention of Upper Arm Injury Related to
Vaccine Administration (UAIRVA), 7 Human Vaccines 845 (2011).
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the reasons stated above, Dr. Korman concluded that more likely than not, petitioner’s flu
vaccination caused his shoulder injury. Id. at 4-5.
C. Respondent’s Expert, Dr. Paul J. Cagle
1. Background and Qualifications
Dr. Cagle is a board-certified orthopaedic surgeon. Resp. Ex. A at 1. He currently works
as an Assistant Professor and Associate Program Director in the Department of Orthopaedic
Surgery at the Icahn School of Medicine at Mount Sinai. Id. He received his B.S. in Biology
from St. Ambrose University in 2004 and his M.D. from Loyola University in 2008. Resp. Ex. B
at 2. Thereafter, he completed an orthopaedic surgery residency at the University of Minnesota,
a shoulder and elbow fellowship at Mount Sinai Hospital, and a shoulder fellowship in France.
Id. Dr. Cagle has received various honors, has co-authored various publications, and held
multiple leadership and professional membership positions throughout his career. Id. at 2-3, 11-
14.
2. Opinion
Dr. Cagle opined that petitioner’s bursitis, shoulder pain and range of motion, neck pain,
back pain, and cervical spine and neck pain are not correlated with or caused by the flu
vaccination at issue. Resp. Ex. A at 4. Dr. Cagle based his opinion on three reasons:21 (1) no
information regarding needle size or technique were provided and it is not conceivable that a
standard needle would have over penetrated petitioner’s deltoid muscle; (2) petitioner’s
preexisting conditions can explain petitioner’s symptoms; and (3) petitioner’s MRI findings do
not support a SIRVA. Id. at 3-4.
First, Dr. Cagle found the most common mechanism associated with SIRVA is “over
penetration of the vaccination injection needle causing a mechanical injury and/or over
penetration leading to the injection of the vaccine antigen/adjuvant into the bursa/tissue causing
an immune reaction.” Resp. Ex. A at 3. For this to occur, he opined that a long needle or
inappropriate technique must have been used. Id.
Dr. Cagle noted that in petitioner’s case, no information regarding needle size or
technique were provided. Id. Assuming the needle used on petitioner was the standard needle
length of one inch, he opined that “it is not conceivable how a standard needle would have led to
an over penetration event” based on the medical literature and petitioner’s weight on the date of
vaccination (220 lbs or 100 kg). Id. Dr. Cagle explained that the “Centers for Disease Control
and Prevention guidelines recommend a 1-inch (25mm) needle length for all patients except
women over 200 [lbs], males over 260 lbs (113 kg)[,] and newborns.” Id.
21 Dr. Cagle also opined there is no evidence associating vaccination with the onset of
petitioner’s shoulder injury within 48 hours. Resp. Ex. A at 3. However, because the
undersigned previously issued a ruling finding petitioner’s onset was within 48 hours of
vaccination, this issue is not addressed in this Ruling.
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Dr. Cagle also cited to Poland et al.22 and Koster et al.23 to support his proposition that a
needle over one inch would be necessary to penetrate the bursa. Resp. Ex. A at 3. In Poland et
al., the authors conducted a study of 220 people, 126 women and 94 men, to determine the
optimal needle length for deltoid intramuscular immunization in healthy adults. Resp. Ex. A,
Tab 27 at 1. They found a one-inch needle sufficient to allow at least 5 mm of muscle
penetration in men between 60-118 kg. Id. at 3. Koster et al. examined 141 subjects between the
ages of 11 and 15, 55% being female, to determine appropriate needle length for intramuscular
injection. Resp. Ex. A, Tab 28 at 1. They found a one-inch needle appropriate for subjects
between 60 and 70kg. Id. at 4. They also determined that “body weight is an excellent predictor
of required needle length.” Id. Notably, this study examined adolescents, and not adults. Id. at
1. And because only seven subjects weighed more than 70 kg, the authors made no
recommendations for this group. Id. at 4.
Next, Dr. Cagle opined that petitioner had a “long standing and well documented history”
of joint and back pain that could explain petitioner’s pain. Resp. Ex. A at 3-4. Dr. Cagle cited to
medical records from Dr. Patel and Dr. Thacker as support. Id. He noted Dr. Patel’s diagnosis
of peripheral neuropathy “clearly explain[s] why [petitioner] was having numbness in his hand
as documented during his visits with [Dr. Thacker].” Id. at 3. Additionally, Dr. Thacker
documented a long standing history of cervical pain,24 which Dr. Cagle opined is an “additional
and common reason for hand numbness” and “demonstrates a self-reported history of episodic
pain . . . off and on for year” that is associated with petitioner’s strenuous job. Id. at 4. Thus, Dr.
Cagle opined that given petitioner’s “long standing episodic history of joint and back pain,” he
disagreed with Dr. Korman that no other explanation exists to explain petitioner’s symptoms. Id.
He added that Dr. Korman did not explain how petitioner’s numbness that Dr. Korman
associated with the bursitis is different than petitioner’s years of documented numbness. Id.
Lastly, Dr. Cagle opined that petitioner’s MRI findings do not support a finding of
SIRVA. Resp. Ex. A at 4. The MRI showed a downsloping acromion, which has been found to
cause bursitis and impingement syndrome. Id. Thus, he found petitioner was predisposed to
shoulder bursitis and impingement syndrome due to his “bony morphology” and “occupational
history of heavy work.” Id. Dr. Cagle concluded that the combination of petitioner’s bony
morphology and occupational work explains the etiology of petitioner’s shoulder issues. Id.
22 Gregory A. Poland et al., Determination of Deltoid Fat Pad Thickness: Implications for Needle
Length in Adult Immunization, 277 JAMA 1709 (1997).
23 Michael Philip Koster et al., Needle Length for Immunization of Early Adolescents as
Determined by Ultrasound, 124 Pediatrics 667 (2009).
24 Dr. Thacker’s record does not document a long standing history of cervical pain. See Pet. Ex.
5 at 3. Dr. Thacker documented, “[petitioner] has suffered from upper thoracic pain for many
years. [Petitioner] explain[ed] that he has worked throughout his life in strenuous job setting that
have placed above normal amounts of tension stress to upper thoracic spine.” Id.
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Dr. Cagle concluded that petitioner’s flu vaccination did not cause petitioner’s symptoms.
Resp. Ex. A at 4. He found petitioner’s medical records documented his history of joint pain and
his MRI supports a finding that petitioner was predisposed to bursitis due to the shape of his
shoulder and occupation. 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).
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)).
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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 &
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
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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
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 the medical literature filed in this
case. In Atanasoff, the authors propose that the causal mechanism “is the unintentional injection
of antigenic material into synovial tissues resulting in an immune-mediated inflammatory
reaction.” Pet. Ex. 15 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.
MRI findings supported the conclusion that shoulder impairments, such as rotator cuff tears,
“may have been present prior to vaccination and became symptomatic as a result of vaccination-
associated synovial inflammation.” Id. Similarly, Bodor and Montalvo proposed that a “vaccine
was injected into the subdeltoid bursa, causing a robust local immune and inflammatory
response.” Pet. Ex. 18 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).
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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).
Moreover, petitioner submitted the expert opinions of Drs. Boyd and Korman who
provided a sound and reliable medical and scientific theory of causation supported by medical
literature. In summary, Dr. Korman explained that the “injection of antigenic material into
synovial tissues [can result] in an immune-mediated inflammatory reaction,” leading to “[a]
robust and prolonged reaction” and the development of subacromial bursitis and impingement
syndrome. Pet. Ex. 33 at 3-4.
For all of the above reasons, the undersigned finds petitioner has provided by
preponderant evidence a sound and reliable theory that the flu vaccine administered
intramuscularly can cause 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 a preponderance
of evidence in the record to support a logical sequence of cause and effect showing the
November 11, 2015 flu vaccination to be the cause of petitioner’s right shoulder pain. See
Althen, 418 F.3d at 1278.
Petitioner received the flu vaccine at issue on November 11, 2015. The first time he was
seen by a medical doctor was on February 29, 2016, at Dr. Patel’s office. While earlier records
reference neck pain, the focus soon became petitioner’s right shoulder pain. A shoulder MRI
17

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was ordered, and performed on March 1, 2016. The MRI of petitioner’s right shoulder showed
“[s]omewhat inferiorly projecting acromion process with mild increased signal intensity changes
in the subacromial bursa [that] could represent impingement syndrome or [] bursitis.” Pet. Ex. 3
at 2. Dr. Thacker’s records continued to document decreased range of motion in March and
April 2016. Pet. Ex. 5 at 24, 48.
Dr. Patel’s office, on April 11, 2016, documented right shoulder tenderness with marked
restricted movements and normal range of motion. Pet. Ex. 4 at 38. Assessment included “right
shoulder pain etiology to be determined.” Id. at 39. Additional visits to Dr. Patel in 2016 and
2017 revealed normal range of motion on physical examination. Pet. Ex. 7 at 2, 4, 6; Pet. Ex. 9
at 1, 3-4. For each of these visits, however, petitioner presented to Dr. Patel for issues other than
his right shoulder pain. It is reasonable that petitioner would not discuss his right shoulder pain
during these visits when he presented for other reasons and was also seeing Dr. Thacker during
most of 2016 for his shoulder issues.
On April 18, 2016, petitioner saw orthopedist Dr. Jamie Varney. Pet. Ex. 2 at 3, 7.
Physical examination revealed positive signs on Hawkins and Neer’s tests and the cross body test
for shoulder joint pathology. Id. at 5. “[P]ain in impingement arc” was noted in petitioner’s
right shoulder. Id. at 6. Upper extremity strength was normal except for “mild decreased right
supraspinatus due to pain.” Id. Assessment was impingement syndrome and bursitis of right
shoulder. Id.
Based on a review of all of the records in context, while petitioner’s treating physicians
may have initially documented concerns with the neck or cervical spine, they soon thereafter
focused on his right shoulder as the primary problem. Dr. Patel initially considered degenerative
disease of cervical spine; however, it does not appear he ever ordered a cervical spine MRI. The
medical records do not include any such study, and only an MRI of petitioner’s right shoulder
was performed. Additionally, Dr. Thacker’s records show his primary concern was petitioner’s
right shoulder pain and pathology, not the cervical spine. Likewise, Dr. Varney’s records focus
on petitioner’s shoulder.
Thus, based on all of the evidence, the undersigned finds petitioner developed a SIRVA,
specifically impingement syndrome and bursitis, consistent with Dr. Varney’s assessment. This
finding is also consistent with the evidence presented by petitioner and his experts.
Respondent’s expert, Dr. Cagle opined that petitioner had a “long standing and well
documented history” of joint and back pain that could explain petitioner’s pain. Resp. Ex. A at
3-4. He found Dr. Patel’s diagnosis of peripheral neuropathy explains petitioner’s hand
numbness. Id. at 3. Additionally, he found Dr. Thacker’s documentation of a long standing
history of cervical pain an “additional and common reason for hand numbness.” Id. at 4.
However, Dr. Thacker’s record does not document a long standing history of cervical pain. See
Pet. Ex. 5 at 3. Instead, Dr. Thacker documented, “[petitioner] has suffered from upper thoracic
pain for many years. [Petitioner] explain[ed] that he has worked throughout his life in strenuous
job setting that have placed above normal amounts of tension stress to upper thoracic spine.” Id.
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Dr. Cagle also opined petitioner was predisposed to shoulder bursitis and impingement
syndrome due to his “bony morphology” and “occupational history of heavy work.” Resp. Ex. A
at 4. Thus, he attributed petitioner’s shoulder issues to his bone structure and work history. Id.
Petitioner’s experts disagreed. Dr. Boyd found no evidence to support a neurologic
etiology and no evidence of another condition to explain petitioner’s pain or loss of range of
motion in his shoulder. Pet. Ex. 13 at 8. He opined petitioner had no prior injury or chronic
condition that could explain his shoulder symptoms, and there was no other contemporaneous
injury other than vaccination to explain his symptoms. Id.
Likewise, Dr. Korman found no other condition to explain petitioner’s shoulder pain and
loss of range of motion. Pet. Ex. 33 at 4. He opined petitioner’s complaints of numbness were
more likely than not a result of his SIRVA. Id. at 5. He found petitioner’s injury was not
neurologic, “even if there were second-order neurologic symptoms that arose after the shoulder
was injured by the vaccination.” Id. The “[p]ain or numbness in the neck and hand on the side
where [petitioner’s] vaccination was administered is readily attributable to direct injury to the
axillary nerve and/or as a secondary effect from the immobilization and guarding of the arm after
the injury first occurred.” Id. And therefore, “[r]egardless of the precise etiology of
[petitioner’s] neurologic symptoms,” petitioner’s symptoms and clinical course are consistent
with a SIRVA. Id.
The undersigned acknowledges that petitioner had a history of back and joint pain,
diabetic neuropathy, and a labor-intensive job. However, Atanasoff et al. stated that in many
cases, conditions including “impingement syndrome, rotator cuff tear, biceps tendonitis,
osteoarthritis[,] and adhesive capsulitis[,] . . . may cause no symptoms until provoked by trauma
or other events.” Pet. Ex. 15 at 3. The authors concluded that “some of the MRI findings . . .
may have been present prior to vaccination and became symptomatic as a result of vaccination-
associated synovial inflammation.” Id. Here, petitioner may have had pre-existing pathology,
but he was not symptomatic until after vaccination.
While petitioner’s job and pre-vaccination history may have made it more likely for him
to have suffered a shoulder injury, the undersigned finds that it was not an alternative cause, or
factor unrelated to vaccination, which caused petitioner’s symptoms. As Dr. Boyd explained,
petitioner’s shoulder symptoms began only after vaccination, which is further supported by
Atanasoff et al. Thus, the undersigned finds petitioner’s vaccination 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, 165 F.3d at 1352-53).
In conclusion, 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
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“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 found 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.
The undersigned finds the evidence discussed in the prior Fact Ruling establishes that 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.
D. Alternative Causation
Because the undersigned concludes that petitioner has established a prima facie case,
petitioner is entitled to compensation unless respondent can put forth preponderant evidence
“that [petitioner’s] injury was in fact caused by factors unrelated to the vaccine.” Whitecotton v.
Sec’y of Health & Hum. Servs., 17 F.3d 374, 376 (Fed. Cir. 1994), rev’d on other grounds sub
nom., Shalala v. Whitecotton, 514 U.S. 268 (1995); see also Walther v. Sec’y of Health & Hum.
Servs., 485 F.3d 1146, 1151 (Fed. Cir. 2007). As discussed above in the analysis related to
Althen Prong Two, the undersigned found the respondent failed to establish evidence to show
that petitioner’s SIRVA injury was caused by a source other than his vaccination. Thus,
respondent did not prove by a preponderance of evidence that petitioner’s injury is “due to
factors unrelated to the administration of the vaccine.” § 13(a)(1)(B).
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 November 11, 2015 flu vaccination caused his right shoulder injury. 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
20

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DOCUMENT 3: USCOURTS-cofc-1_17-vv-00451-2
Date issued/filed: 2022-08-05
Pages: 16
Docket text: PUBLIC DECISION (Originally filed: 7/11/2022) regarding 107 DECISION of Special Master. Signed by Special Master Nora Beth Dorsey. (mjf) Service on parties made.
--------------------------------------------------------------------------------
Case 1:17-vv-00451-UNJ Document 108 Filed 08/05/22 Page 1 of 16
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: July 11, 2022
* * * * * * * * * * * * * * * * * * * * * * * * *
LARRY WOLFORD, * PUBLISHED
*
Petitioner, * No. 17-451V
*
v. * Special Master Nora Beth Dorsey
*
SECRETARY OF HEALTH * Damages Decision; Influenza (“Flu”)
AND HUMAN SERVICES, * Vaccine; Shoulder Injury Related to Vaccine
* Administration (“SIRVA”).
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Isaiah Richard Kalinowski, Bosson Legal Group, Fairfax, VA, for petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent.
DAMAGES DECISION1
On March 29, 2017, Larry Wolford (“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
related to vaccine administration (“SIRVA”) as the result of an influenza (“flu”) vaccination
administered on November 11, 2015. Petition at 1-3 (ECF No. 1). On July 9, 2021, the
undersigned issued a ruling on entitlement, finding that petitioner was entitled to compensation.
Ruling on Entitlement dated July 9, 2021 (ECF No. 80).
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.

Case 1:17-vv-00451-UNJ Document 108 Filed 08/05/22 Page 2 of 16
The parties were unable to resolve damages and requested that the Court enter a schedule
for damages briefs. Since then, the parties’ briefs have been filed.
After consideration of all of the evidence, and for the reasons described below, the
undersigned finds that petitioner is entitled to $70,000.00 for actual pain and suffering, and
$1,971.853 for out-of-pocket medical expenses, for a total award of $71,971.85.
I. PROCEDURAL HISTORY
Petitioner filed his petition on March 29, 2017, alleging that he sustained a right shoulder
injury caused by a flu vaccine administered on November 11, 2015. Petition at 1-3. The early
procedural history from March 2017 through July 2021 was set forth in the undersigned’s Fact
Ruling and Ruling on Entitlement and will not be repeated here. See Fact Ruling dated July 8,
2019, at 2-3 (ECF No. 56); Ruling on Entitlement at 2.
Thereafter, the parties engaged in settlement discussions but were not able to resolve this
matter informally. Petitioner’s (“Pet.”) Status Report (Rept.”), filed Feb. 8, 2022 (ECF No. 98).
The parties agreed to submit the issue of pain and suffering to the Court’s resolution by briefing.
Joint Status Rept., filed Feb. 16, 2022 (ECF No. 100).
On March 4, 2022, petitioner filed a memorandum of law regarding damages. Pet.
Opening Memorandum of Law Regarding Damages (“Pet. Mem.”), filed Mar. 4, 2022 (ECF No.
103). Respondent filed his response on May 2, 2022. Respondent’s Brief on Damages (“Resp.
Br.”), filed May 2, 2022 (ECF No. 105). Petitioner filed a reply on May 9, 2022. Pet. Reply
Memorandum of Law Regarding Damages (“Pet. Reply Mem.”), filed May 9, 2022 (ECF No.
106).
This matter is now ripe for adjudication.
II. FACTUAL HISTORY4
A. Pre-Vaccination Medical History
Petitioner’s pre-vaccination medical history is significant for non-insulin dependent
diabetes mellitus, diabetic neuropathy, weakness, fatigue, numbness in hands and legs, backache,
multiple joint pains, gastroesophageal reflux disease, depression, and osteoarthritis. Pet. Ex. 4 at
4-5, 7, 16, 26, 28. No records indicate that petitioner had right shoulder pain prior to
vaccination.
3 The parties agreed on the total out-of-pocket expenses in the amount of $1,971.85.
Respondent’s Brief on Damages (“Resp. Br.”), filed May 2, 2022, at 2, 2 n.1 (ECF No. 105).
4 In the interest of efficiency, this summary is taken from relevant portions of the undersigned’s
Ruling on Entitlement. See Ruling on Entitlement at 2-8.
2

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B. Post-Vaccination Medical History
The Fact Ruling set forth a summary of petitioner’s medical records, affidavits, and
hearing testimony relative to onset of his right shoulder injury. See Fact Ruling at 3-8. Only the
relevant portions will be repeated here. In the Fact Ruling, the undersigned found the onset of
petitioner’s right shoulder injury was within 48 hours of vaccination. Id. at 13.
On November 11, 2015, at fifty-three years old, petitioner was seen by his primary care
physician, Dr. Dinkar Patel. Pet. Ex. 4 at 34. Current medications included Ultram, Cymbalta,
and Neurontin. Id. at 34-35. Chief complaints were diabetes mellitus and hypercholesterolemia.
Id. at 34. Petitioner also complained of backache and itching and rash on his right arm. Id. He
came for a check up on his blood sugar and wanted a flu vaccine. Id. Physical examination by
Dr. Patel revealed tenderness in lower back, dermatitis on right arm, and normal range of motion.
Id. At this visit, Ms. Lynette Gibson administered a flu vaccine in petitioner’s right deltoid. Pet.
Ex. 10 at 1. Dr. Patel documented, “Flu Vaccine given. No reaction noted.” Pet. Ex. 4 at 35.
At the fact hearing, petitioner testified that when the vaccine was administered, the nurse
“said she felt it tighten up on [him].” Transcript (“Tr.”) 17. He explained that “when she pulled
the needle out, she said it tightened up on her . . . she felt it jerk, the muscle tightened up and
everything.” Tr. 109-10. Ms. Wolford testified that “when [the nurse] gave [petitioner] his shot
she just kind of—I guess laughed a little bit and said he’d probably get sore because [she] felt it
jerk.” Tr. 157-58, 199. Ms. Wolford testified that she was present during the entire visit with
Dr. Patel on November 11, 2015 when petitioner received his flu shot and that she also received
a flu shot during this visit. Tr. 157.
Petitioner testified that he began experiencing aching and stiffness the evening of the
vaccination. Tr. 19. His shoulder pain disturbed his sleep and woke him up at night beginning
the first night following the vaccination. Tr. 35. He had to start driving with one hand “[r]ight
after the vaccine.” Tr. 36. He explained that a day or two later he developed a stabbing pain.
Tr. 26.
Ms. Wolford testified that after they got home, petitioner complained of his shoulder
being “sore, a dull, aching sore,” but they thought it was normal. Tr. 158. She testified that she
did not call Dr. Patel’s office that day about petitioner’s pain because the nurse “said it was
going to get sore, so he just thought it would be normal.” Tr. 201; see also Tr. 159. She
explained, however, the soreness did not go away but worsened. Tr. 158-59. The day after
vaccination, “[petitioner] just all of a sudden would be hollering, ouch, and grabbing to his arm.”
Tr. 159.
Petitioner explained that he made a “sleeve,” or sling, out of a compression sock that,
when worn as a sleeve, warmed his arm and reduced his discomfort. Tr. 19-20, 26, 31-33. His
pain also got better with Tylenol, ibuprofen, and Icy Hot. Tr. 118-19. Ms. Wolford also testified
to these facts. Tr. 159.
Ms. Wolford testified that as time went on in November and December 2015, petitioner
would “treat it for a while and then it would go away, and it’d like just come back . . . . [She]
3

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remember[ed] him propping it up on, like, a pillow to ease the pain.” Tr. 160. They also did this
with other items like quilts. Id. Ms. Wolford recalled seeing petitioner “trying to comb his hair,
and he couldn’t get his arm up over his head to comb his hair, like he was having trouble moving
his arm.” Tr. 161. She could not recall when she observed this but stated that it was before
April 2016 and possibly before February 2016. Tr. 161, 173-74.
Ms. Wolford testified that she was not sure when she first called Dr. Patel’s office, but
believed it was sometime around mid-November or Thanksgiving. Tr. 162-63, 202. She
testified that she was told that Dr. Patel “was out of the country at that time” and that he would
be gone for a month.5 Tr. 163, 205. Petitioner’s wife testified that petitioner did not see another
doctor in the practice because Dr. Patel had “been his doctor for years. He’s the only one he
sees” and they planned to “wait for him to come back.” Tr. 163-64. She testified that she did
not initially look for other doctors because petitioner was treating himself and the pain was
coming and going. Tr. 164.
Ms. Wolford testified that eventually she started calling other doctors in the area that she
identified by going through a phone book. Tr. 164. She could not recall the names of the offices
she called but stated that there were “a few” and that “they couldn’t get him in because . . . they
wanted a referral or where it was the holidays and stuff, they wanted it two or three months down
the road.” Tr. 185. She contacted the office of chiropractor Dr. Jarrod Thacker and was told that
he could see petitioner. Tr. 165. She could not recall the interval between when she called Dr.
Thacker’s office and when petitioner was first seen by Dr. Thacker, but said that “it wasn’t that
long. Probably a couple of days . . . they got him in quick.” Id.
Petitioner presented to chiropractor, Dr. Thacker, on February 16, 2016 with “severe
upper thoracic/right shoulder/arm/elbow thumb pain” that “started after receiving a flu shot in
November 2015.” Pet. Ex. 5 at 3. Petitioner noted onset as “acute, one week after flu shot was
administered.”6 Id. Petitioner reported “pain daily 4/5 times a day [and] made worse with
certain movements. Pain ranges from 2-8/10 on a pain scale.” Id. Pain was described as “achy,
burning, dull, sharp, stiff, throbbing,” and moderate. Id. Petitioner further reported numbness in
right hand, severe spasms in right cervical paraspinal and right trapezius, right upper extremity
weakness, and decreased cervical motion. Id. He indicated he was only able to lift 25 pounds
and his sleep was affected. Id. On physical examination, Dr. Thacker wrote petitioner “presents
with severe [guarding] of the neck and right shoulder.” Id. Petitioner had decreased range of
motion. Id. Dr. Thacker treated petitioner to relieve pain, decrease inflammation, and to
improve function, strength, and range of motion. Id. at 4. Petitioner was given shoulder
exercises and stretches for impingement syndrome. Id.
5 In a later record, Dr. Patel included a note stating, “[petitioner] states he came to see me in
Nov[ember] 2015, I [saw] him on 11-11-15 but he came again to see me and I was out of town
and he [saw] Jerry Thacker for right shoulder pain and received physical therapy.” Pet. Ex. 7 at
5; see also Pet. Ex. 9 at 5 (handwritten version of similar note).
6 Petitioner testified that the notation stating the onset was one week after the flu shot is not
accurate. Tr. 49, 127-28, 206-07.
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Petitioner returned to Dr. Thacker 27 times from February 18, 2016 to November 4,
2016. Pet. Ex. 5 at 6-56; Pet. Ex. 6 at 2-22, 24-32. During the February 24, 2016 visit, Dr.
Thacker wrote “[a] [magnetic resonance imaging (“MRI”)] consult was discussed with
[petitioner] because progression [was] not optimal. [Petitioner] would need to visit [primary care
physician (“PCP”)] (Dr. D Patel) to obtain order form [for] R shoulder MRI.”7 Pet. Ex. 5 at 13.
On February 29, 2016, petitioner returned to Dr. Patel’s office8 with a chief complaint of
diabetes mellitus and hypercholesterolemia. Pet. Ex. 4 at 36. Under review of systems,
petitioner complained of neck pain and numbness in right arm and reported seeing a
chiropractor. Id. Physical examination revealed tenderness in back of neck with painful neck
movements, no stiffness in neck, and normal range of motion. Id. Assessment included “neck
pain with probable degenerative disc disease c spine,” “cervical radicular syndrome right side,”
and osteoarthritis. Id. at 37. Petitioner was advised to have an MRI of his cervical spine done.9
Id.
An MRI of petitioner’s right shoulder was conducted on March 1, 2016. Pet. Ex. 3 at 2.
Diagnosis was listed as shoulder pain and soreness after flu shot. Id. The impression was
“[s]omewhat inferiorly projecting acromion process with mild increased signal intensity changes
in the subacromial bursa could represent impingement syndrome[10] or from bursitis.[11] Study
otherwise is negative for rotator cuff tear.” Id.
7 Dr. Thacker’s additional patient notes regarding petitioner’s shoulder MRI are as follows:
4-7-16: Appointment with patient PCP was set up for 4-13-16 to obtain order for
right shoulder MRI. Patient progress not showing expected results. Patient still
suffering from severe pain when certain motions are sought (Mostly
overhead/abduction/adduction to R shoulder).
4/14/16: Patient had follow up visit with PCP to get a MRI on R shoulder.
4/28/16: Patient was referred to orthopedist for consultation of cortisone injection
into right shoulder. Injection was administered by Dr. Varney at PMC.
Pet. Ex. 5 at 2.
8 It is not clear from the record who petitioner saw during this visit.
9 No records were provided indicating petitioner received a cervical spine MRI. Based on the
medical records, it appears petitioner received only a right shoulder MRI.
10 Impingement syndrome results from “mechanical impingement by the acromion,
coracoacromial ligament, coracoid process, or acromioclavicular joint against the rotator cuff.”
Impingement Syndrome, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/
dorland/definition?id=110796 (last visited July 6, 2022).
11 Bursitis is “inflammation of a bursa.” Bursitis, Dorland’s Med. Dictionary Online,
https://www.dorlandsonline.com/dorland/definition?id=7315 (last visited July 6, 2022).
5

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Dr. Thacker’s examinations in March and April 2016 “show[ed] minimal to no
improvement in [petitioner’s] subjective or objective complaints/findings.” Pet. Ex. 5 at 24, 48.
Dr. Thacker discussed a referral to an orthopedist for an injection. Id.
Petitioner returned to Dr. Patel’s office12 on April 11, 2016. Pet. Ex. 4 at 38. Petitioner
complained of “right shoulder pain with restricted shoulder movements” as well as multiple joint
pain. Id. Physical examination revealed right shoulder tenderness with marked restricted
movements and normal range of motion. Id. Assessment included “right shoulder pain etiology
to be determined.” Id. at 39. Under plan, the record indicates “[a]dvised mri of the right
shoulder and [petitioner] is being followed by Dr. [] Thacker.” Id. Petitioner was instructed to
continue physical therapy. Id.
On April 18, 2016, petitioner saw orthopedist Dr. Jamie Varney at Pikeville Medical
Center complaining of right shoulder pain. Pet. Ex. 2 at 3, 7. Petitioner stated “the symptoms
have been chronic non-traumatic,” occur intermittently, and “began . . . after flu shot.” Id. at 3.
He described the pain as “piercing” and reported additional pain in his right thumb. Id. at 3, 12.
He indicated his “symptoms are aggravated by daily activities and reaching overhead,” but are
“relieved by physical therapy.” Id. At the time of the visit, petitioner reported his symptoms
were moderate and his pain was a 2/10. Id. at 3, 11. In a handwritten orthopedic information
sheet completed on April 18, 2016,13 petitioner related his injury back to the flu vaccine received
on November 11, 2015 and listed his reason for visit as “pain in right shoulder [and] numbness in
thumb.” Id. at 11. For when his symptoms started, he wrote “same night got sore.” Id. He also
described the pain as stabbing and noted it “randomly” goes from 2/10 to 8/10. Id.
Physical examination revealed positive signs on Hawkins and Neer’s tests and the cross
body test for shoulder joint pathology. Pet. Ex. 2 at 5. Range of motion in petitioner’s left
shoulder was normal, but there was “pain in impingement arc” noted with regard to petitioner’s
right shoulder. Id. at 6. Elbow and wrist range of motion in both extremities was normal. Id.
Upper extremity strength was normal except for “mild decreased right supraspinatus due to
pain.” Id. Neurovascular upper extremity examination was normal, although petitioner reported
“some decreased sensation on the inner aspect of his thumb.” Id. Assessment was impingement
syndrome and bursitis of right shoulder. Id. Petitioner received a cortisone injection in the
subacromial space in his right shoulder. Id. Dr. Varney stated, “it is unlikely that the flu shot
actually caused any damage to his shoulder. MRIs . . . show[] chronic tendinopathy of
supraspinatus with some tendinitis and bursitis. Also has a downward sloping acromion that
causes rotator cuff impingement. Previous injection may have [] caused some inflammation of
his underlying problems.”14 Id. at 7. Petitioner was advised to continue home exercises and
physical therapy and ice and take anti-inflammatories as needed. Id.
12 Again, it is not clear from the record who petitioner saw during this visit.
13 Petitioner and his wife both testified that the handwriting on the form belongs to petitioner’s
wife. Tr. 73, 175.
14 Dr. Varney does not define “previous injection.” It appears, however, based on the context of
the note, that Dr. Varney was referring to the flu vaccination.
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On July 21, 2016, petitioner saw Dr. Thacker who noted petitioner “re-injured right
shoulder after hanging drywall for 4 hours [on] 7/18/16.” Pet. Ex. 6 at 17.
On August 16, 2016, petitioner returned to Dr. Patel for diabetes mellitus and
hypercholesterolemia. Pet. Ex. 7 at 2. Petitioner did not complain of shoulder pain at this visit.
See id. Physical examination revealed normal range of motion. Id.
Petitioner saw Dr. Patel on October 4, 2016, complaining of “rash on the arm with itching
backache, numbness in legs. Came for check up on blood sugar. Cough, chest congestion.” Pet.
Ex. 7 at 4. On physical examination, range of motion was normal. Id. Dr. Patel noted petitioner
was seeing Dr. Thacker for right shoulder pain and physical therapy. Id. at 5.
Petitioner last saw Dr. Thacker on November 4, 2016. Pet. Ex. 6 at 30-32. There is no
indication as to why this was petitioner’s last visit.
Petitioner complained of diabetes mellitus, hypercholesterolemia, multiple joint pain,
numbness in legs, and a cough during a visit to Dr. Patel on December 7, 2016. Pet. Ex. 7 at 6.
Petitioner did not complain of right shoulder pain during this visit. See id. Range of motion was
normal on physical examination. Id.
Petitioner saw Dr. Patel next on March 9, 2017. Pet. Ex. 9 at 1-2. No complaints of right
shoulder pain were noted. See id. Physical examination revealed normal range of motion. Id. at
1. “Right elbow region pain” and “normal range of motion” were noted in petitioner’s next visit
to Dr. Patel on June 14, 2017. Id. at 3-4.
No additional medical records were provided.
III. PARTIES’ CONTENTIONS
A. Petitioner’s Contentions
Petitioner requests a pain and suffering award of $70,000.00. Pet. Mem. at 11; Pet. Reply
Mem. at 10. Petitioner contends his “injury follows the more typical pattern in SIRVA cases.”
Pet. Mem. at 11.
Petitioner acknowledges that he first saw his treating chiropractor, Dr. Thacker, 97 days
after vaccination. Pet. Mem. at 10. However, petitioner contends he first contacted his doctor
nine days after vaccination, and “[t]he only reason [p]etitioner was not assessed and treated for
his pain earlier was due to the unavailability of a doctor to see him.” Id. Petitioner argues this
gap in onset and his first visit to a medical provider “is not indicative of the absence of pain and
suffering and emotional distress.” Pet. Reply Mem. at 3.
Petitioner also disputes respondent’s argument that petitioner’s shoulder and arm pain
was not noted in visits later in 2016. Pet. Reply Mem. at 3. “Given that the shoulder injury was
gradually improving without further acute incident, it is neither remarkable or relevant that Dr.
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Patel did not further reference the injury in later visits.” Id. Petitioner contends his continued
chiropractic visits are more instructive to the question of pain and suffering. Id. Additionally, at
the fact hearing in 2019, petitioner testified he continued to suffer residual effects. Id.
Citing Johnson, petitioner notes that in the lower end of the spectrum of SIRVA cases,
pain and suffering awards average between $55,000.00 and $75,000.00. Pet. Mem. at 10 (citing
Johnson v. Sec’y of Health & Hum. Servs., No. 18-1486V, 2021 WL 836891, at *5 (Fed. Cl.
Spec. Mstr. Jan. 25, 2021)). Petitioners in those cases delayed seeking treatment, and their pain
and limitations in range of motion remained mild to moderate. Id. (citing Johnson, 2021 WL
836891 at *5). Petitioner also notes mild cases typically resolve after one to two cortisone
injections and two months or less of physical therapy, and pain lasted an average of nine months.
Id. (citing Johnson, 2021 WL 836891 at *5).
In Johnson, the petitioner suffered significant pain upon vaccination, but overall suffered
a moderate SIRVA injury. Johnson, 2021 WL 836891 at *7. Petitioner took oral steroids,
attended six physical therapy sessions, and received one cortisone injection, after which pain
levels decreased. Id. “By six months after vaccination, [p]etitioner reported only minor
discomfort with certain movements.” Id. Additionally, the special master noted petitioner
“exhibited normal strength, and the reduction in [range of motion] was never significant,” and
petitioner “had an unrelated condition which constituted an additional source of pain.” Id. at *7-
8. Given these facts, the special master awarded petitioner $65,000.00 in pain and suffering. Id.
at *8.
Along with Johnson, petitioner cited George v. Secretary of Health & Human Services,
No. 18-0426V, 2020 WL 4692451 (Fed. Cl. Spec. Mstr. July 10, 2020) and T.E. v. Secretary of
Health & Human Services, No. 19-0633V, 2021 WL 2935751 (Fed. Cl. Spec. Mstr. May 7,
2021) for support. Pet. Mem. at 11.
The petitioner in George did not undergo surgery, received one cortisone injection,
attended 40 sessions of physical therapy, and had an “initial course of treatment last[ing]
approximately seven months.” George, 2020 WL 4692451 at *3. An MRI revealed minimal
bursitis and mild tendinopathy of the infraspinatus tendon. Id. at *2. The special master found
“[p]etitioner’s injury was on the ‘mild’ end of the spectrum” and awarded petitioner $67,000.00
in pain and suffering. Id. at *2-3.
In T.E., petitioner did not undergo surgery, was treated with one cortisone injection,
attended seven sessions of physical therapy, “experienced mild to moderate restrictions in her
range of motion and pain with motion,” and did not seek further evaluation or treatment after six
months post-vaccination. T.E., 2021 WL 2935751 at *4-6. The petitioner received two MRIs
and an ultrasound, which her treating physician found did not show “signs of a high-grade partial
thickness tear.” Id. at *5. The special master found the facts “support[d] a slightly below-
median award” and awarded $70,000.00 in pain and suffering. Id. at *4, *6.
Lastly, petitioner notes “[r]espondent failed to provide any comparable cases for the
Court’s consideration of damages in this case” and failed to provide “any reference to reasoned
authority” for respondent’s chosen offered amount. Pet. Reply Mem. at 5 (emphasis omitted).
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Petitioner asserts “[r]espondent can offer no analogous case to support the amount proposed,”
while “[p]etitioner’s reference to analogous damages rulings places this case within the broader
context and backdrop of other cases properly adjudicated by this Court.” Id. at 10.
B. Respondent’s Contentions
Respondent argues that based on the facts of this case, petitioner should be awarded
$30,000.00 for pain and suffering. Resp. Br. at 7. Respondent contends the medical records
reflect a “relatively mild SIRVA injury.” Id. First, because petitioner did not see a medical
provider for over three months, “[p]etitioner’s shoulder pain was not severe enough to require
immediate treatment or hospitalization.” Id. Next, respondent asserts petitioner’s treatment was
limited to chiropractic care and one cortisone injection, with treatment occurring within one year.
Id.
Respondent argues George and T.E. are not factually analogous to petitioner’s case.
Resp. Br. at 8. In George, “petitioner presented to a medical provider three weeks after
vaccination, and an MRI revealed minimal bursitis and mild tendinopathy,” while petitioner here
“waited a little more than three months to seek treatment, and his orthopedist noted . . . [the]
MRI . . . show[ed] chronic tendinopathy of supraspinatus with some tendinitis and bursitis.” Id.
(internal quotations omitted). Respondent, citing Rayborn, notes “a longer delay in seeking
initial treatment suggests petitioner’s pain was manageable and did not require immediate
medical attention.” Id. (citing Rayborn v. Sec’y of Health & Hum. Servs., No. 18-0226V, 2020
WL 5522948, at *12 (Fed. Cl. Spec. Mstr. Aug. 14, 2020) (awarding $55,000.00 for actual pain
and suffering)). Additionally, the petitioner in George attended forty physical therapy sessions,
unlike petitioner here. Id. Regarding T.E., respondent asserts petitioner’s reliance is misplaced
because T.E. “is a conceded case that does not discuss the age of petitioner or the time interval of
her first appointment.” Id.
Respondent concludes that “under the totality of the circumstances, an award of
$30,000.00 for pain and suffering is just and fair compensation.” Resp. Br. at 8. Respondent
does not cite to any factually analogous cases for support of such award.
IV. LEGAL FRAMEWORK
Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and
projected pain and suffering and emotional distress from the vaccine-related injury, an award not
to exceed $250,000.” § 15(a)(4). Additionally, petitioner may recover “actual unreimbursable
expenses incurred before the date of judgment,” including those that “(i) resulted from the
vaccine-related injury for which petitioner seeks compensation, (ii) were incurred by or on behalf
of the person who suffered such injury, and (iii) were for diagnosis, medical or other remedial
care, rehabilitation . . . determined to be reasonably necessary.” § 15(a)(1)(B). Petitioner bears
the burden of proof with respect to each element of compensation requested. Brewer v. Sec’y of
Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar.
18, 1996).
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There is no formula for assigning a monetary value to a person’s pain and suffering and
emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at
*9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for emotional distress are inherently subjective
and cannot be determined by using a mathematical formula.”); Stansfield v. Sec’y of Health &
Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996)
(“[T]he assessment of pain and suffering is inherently a subjective evaluation.”). Factors to be
considered when determining an award for pain and suffering include: (i) awareness of the
injury; (ii) severity of the injury; and (iii) duration of the suffering. I.D., 2013 WL 2448125, at
*9 (quoting McAllister v. Sec’y of Health & Hum. Servs., No. 91-1037V, 1993 WL 777030, at
*3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated and remanded on other grounds, 70 F.3d 1240
(Fed. Cir. 1995)).
The undersigned may look to prior pain and suffering awards to aid in the resolution of
the appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v.
Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is nothing
improper in the chief special master’s decision to refer to damages for pain and suffering
awarded in other cases as an aid in determining the proper amount of damages in this case”).
The undersigned may also rely on her experience adjudicating similar claims.15 Hodges v. Sec’y
of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated
the special masters would use their accumulated expertise in the field of vaccine injuries to judge
the merits of individual claims). Importantly, however, it must also be stressed that pain and
suffering is not determined based on a continuum. See Graves v. Sec’y of Health & Hum.
Servs., 109 Fed. Cl. 579 (2013).
In Graves, Judge Merrow rejected the special master’s approach of awarding
compensation for pain and suffering based on a spectrum from $0.00 to the statutory
$250,000.00 cap. Judge Merrow noted that this constituted “the forcing of all suffering awards
into a global comparative scale in which the individual petitioner’s suffering is compared to the
most extreme cases and reduced accordingly.” Graves, 109 Fed. Cl. at 589-90. Instead, Judge
Merrow assessed pain and suffering by looking to the record evidence, prior pain and suffering
awards within the Vaccine Program, and a survey of similar injury claims outside of the Vaccine
Program. Id. at 595.
15 From July 2014 until September 2015, the SPU was overseen by former Chief Special Master
Vowell. For the next four years, until September 30, 2019, all SPU cases, including the majority
of SIRVA claims, were assigned to the undersigned as the former Chief Special Master, now
Special Master Dorsey. Since that time, SPU cases have been assigned to Chief Special Master
Corcoran.
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Although this case was removed from the Special Processing Unit (“SPU”) on September
30, 2019, the undersigned finds statistical data from SIRVA cases resolved in SPU to be
informative, as they have an extensive history of informal resolution within the SPU.16
V. PRIOR SIRVA COMPENSATION WITHIN SPU
A. Data Regarding Compensation in SPU SIRVA Cases
SIRVA cases have an extensive history of informal resolution within the SPU. As of July
1, 2022, 2,723 SPU SIRVA cases have resolved since the inception of SPU on July 1, 2014.
Compensation was awarded in 2,651 of these cases, with the remaining 72 cases dismissed.
Of the compensated cases, 1,513 SPU SIRVA cases involved a prior ruling that petitioner
was entitled to compensation. In only 114 of these cases was the amount of damages determined
by a special master in a reasoned decision. These written decisions setting forth such
determinations, prepared by neutral judicial officers (the special masters themselves), provide the
most reliable precedent setting forth what similarly-situated claimants should also receive.17
1,371 of this subset of post-entitlement determination, compensation-awarding cases,
were the product of informal settlement—cases via proffer and 28 cases via stipulation.
Although all proposed amounts denote an agreement reached by the parties, those presented by
stipulation derive more from compromise than any formal agreement or acknowledgment by
respondent that the settlement sum itself is a fair measure of damages. Of course, even though
any such informally-resolved case must still be approved by a special master, these
determinations do not provide the same judicial guidance or insight obtained from a reasoned
decision. But given the aggregate number of such cases, these determinations nevertheless
“provide some evidence of the kinds of awards received overall in comparable cases.” Sakovits
v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4 (Fed. Cl. Spec. Mstr.
June 4, 2020) (emphasis in original).
The remaining 1,138 compensated SIRVA cases were resolved via stipulated agreement
of the parties without a prior ruling on entitlement. These agreements are often described as
“litigative risk” settlements, and thus represent a reduced percentage of the compensation which
otherwise would be awarded. Due to the complexity of these settlement discussions, many
16 Prior decisions awarding damages, including those resolved by settlement or proffer, are made
public and can be searched on the U.S. Court of Federal Claims’ website by keyword and/or by
special master. On the Court’s main page, click on “Opinions/Orders” to access the database.
All figures included in this Decision are derived from a review of the decisions awarding
damages within SPU. All decisions reviewed are, or will be, available publicly. All figures and
calculations cited are approximations.
17 See, e.g., Sakovits v. Sec’y of Health & Hum. Servs., No. 17-1028V, 2020 WL 3729420, at *4
(Fed. Cl. Spec. Mstr. June 4, 2020) (discussing the difference between cases in which damages
are agreed upon by the parties and cases in which damages are determined by a special master).
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which involve multiple competing factors, these awards do not constitute a reliable gauge of the
appropriate amount of compensation to be awarded in other SPU SIRVA cases.
The data for all groups described above reflect the expected differences in outcome,
summarized as follows:
Damages Proffered Stipulated Stipulated18
Decisions by Damages Damages Agreement
Special Master
Total Cases 114 1,371 28 1,138
Lowest $40,757.91 $25,000.00 $45,000.00 $5,000.00
1st Quartile $72,354.81 $67,472.00 $90,000.00 $40,000.00
Median $102,479.12 $86,927.85 $122,886.42 $60,000.00
3rd Quartile $125,343.45 $115,000.00 $161,001.79 $115,000.00
Largest $265,034.87 $1,845,047.00 $1,500,000.00 $550,000.00
B. Pain and Suffering Awards in Reasoned Decisions
In the 114 SPU SIRVA cases which required a reasoned damages decision, compensation
for a petitioner’s actual or past pain and suffering varied from $40,000.00 to $210,000.00, with
$100,000.00 as the median amount. Only five of these cases involved an award for future pain
and suffering, with yearly awards ranging from $250.00 to $1,500.00.19
In cases with lower awards for past pain and suffering, many petitioners commonly
demonstrated only mild to moderate levels of pain throughout their injury course. This lack of
significant pain is often evidenced by a delay in seeking treatment—over six months in one case.
In cases with more significant initial pain, petitioners experienced this greater pain for three
months or less. All petitioners displayed only mild to moderate limitations in range of motion,
and MRI imaging showed evidence of mild to moderate pathologies such as tendinosis, bursitis,
or edema. Many petitioners suffered from unrelated conditions to which a portion of their pain
and suffering could be attributed. These SIRVAs usually resolved after one to two cortisone
injections and two months or less of physical therapy. None required surgery. The duration of
the injury ranged from six to 30 months, with most petitioners averaging approximately nine
months of pain. Although some petitioners asserted residual pain, the prognosis in these cases
was positive. Only one petitioner provided evidence of an ongoing SIRVA, and it was expected
to resolve within the subsequent year.
18 Two awards were for an annuity only, the exact amounts which were not determined at the
time of judgment.
19 Additionally, a first-year future pain and suffering award of $10,000.00 was made in one case.
Dhanoa v. Sec’y of Health & Hum. Servs., No. 15-1011V, 2018 WL 1221922 (Fed. Cl. Spec.
Mstr. Feb. 1, 2018).
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Cases with higher awards for past pain and suffering involved petitioners who suffered
more significant levels of pain and SIRVAs of longer duration. Most of these petitioners
subjectively rated their pain within the upper half of a ten-point pain scale and sought treatment
of their SIRVAs more immediately, often within 30 days of vaccination. All experienced
moderate to severe limitations in range of motion. MRI imaging showed more significant
findings, with the majority showing evidence of partial tearing. Surgery or significant
conservative treatment, up to 133 physical therapy sessions over a duration of more than three
years and multiple cortisone injections, was required in these cases. In four cases, petitioners
provided sufficient evidence of permanent injuries to warrant yearly compensation for future or
projected pain and suffering.
VI. APPROPRIATE COMPENSATION IN THIS SIRVA CASE
A. Actual Pain and Suffering
In this case, awareness of the injury is not in dispute. The record reflects that at all times
petitioner was a competent adult with no impairments that would impact his awareness of his
injury. Therefore, the undersigned’s analysis will focus principally on the severity and duration
of petitioner’s injury.
When performing this analysis, the undersigned reviews the record as a whole, including
the medical records, affidavits, testimony, and any expert opinions. The undersigned also takes
into account prior awards for pain and suffering in both SPU and non-SPU SIRVA cases, as well
as her experience adjudicating these cases. The undersigned bases her decision as to the
appropriate amount of damages on the particular facts and circumstances of this specific case.
The medical records establish that petitioner first sought treatment on February 16, 2016,
97 days after his vaccination on November 11, 2015. Respondent argues that this delay in
seeking treatment is evidence that “[p]etitioner’s shoulder pain was not severe enough to require
immediate treatment or hospitalization.” Resp. Br. at 7. However, the medical records and
testimony at the fact hearing show petitioner had reasonable reasons for his delay in seeking
treatment. For example, petitioner tried to see his primary care physician, Dr. Patel, but he was
unavailable because he was out of the country. Additionally, petitioner tried to find another
doctor, but as petitioner’s wife explained, “they couldn’t get him in because . . . they wanted a
referral or where it was the holidays and stuff, they wanted it two or three months down the
road.” Tr. 185. Thus, under these circumstances, the undersigned finds that petitioner has a
reasonable explanation for his three-month delay in receiving medical treatment, and that this
factor alone cannot be used to discount the severity of petitioner’s pain during that time.
A review of the records reveals petitioner’s pain is described as significant from
November 11, 2015, the date of vaccination, to April 2016, after petitioner received a cortisone
injection. Beginning on the night of November 11, 2015, the date of vaccination, petitioner
experienced aching and stiffness, and the pain woke him up during the night. A day or two later,
he developed stabbing pain.
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On February 16, 2016, petitioner saw chiropractor, Dr. Thacker for “severe upper
thoracic/right shoulder/arm/elbow thumb pain” that “started after receiving a flu shot in
November 2015.” Pet. Ex. 5 at 3. Petitioner reported “pain daily 4/5 times a day [and] made
worse with certain movements. Pain ranges from 2-8/10 on a pain scale.” Id. Pain was
described as “achy, burning, dull, sharp, stiff, throbbing,” and moderate. Id. Physical
examination revealed “severe [guarding] of the neck and right shoulder” and decreased range of
motion. Id.
From February 18, 2016 to November 4, 2016, petitioner visited chiropractor Dr. Thacker
27 additional times for physical therapy. At the February 24, 2016 visit, Dr. Thacker noted
“progression not optimal.” Pet. Ex. 5 at 13.
An MRI of petitioner’s right shoulder was conducted on March 1, 2016, and the
impression was “[s]omewhat inferiorly projecting acromion process with mild increased signal
intensity changes in the subacromial bursa could represent impingement syndrome or from
bursitis. Study otherwise is negative for rotator cuff tear.” Pet. Ex. 3 at 2.
Dr. Thacker’s examinations in March and April 2016 “show[ed] minimal to no
improvement in [petitioner’s] subjective or objective complaints/findings.” Pet. Ex. 5 at 24, 48.
On April 7, 2016, Dr. Thacker wrote, “[p]atient progress not showing expected results. Patient
still suffering from severe pain when certain motions are sought . . . .” Id. at 2. Dr. Thacker
discussed a referral to an orthopedist for an injection.
On April 11, 2016, at a visit to Dr. Patel, petitioner complained of “right shoulder pain
with restricted shoulder movement.” Pet. Ex. 4 at 38. Physical examination revealed right
shoulder tenderness with marked restricted movements.
On April 18, 2016, petitioner saw orthopedist Dr. Varney, where petitioner reported “the
symptoms have been chronic non-traumatic,” occur intermittently, and “began . . . after flu shot.”
Pet. Ex. 2 at 3. He described the pain as “piercing” and “stabbing,” indicated his “symptoms are
aggravated by daily activities and reaching overhead,” and noted the pain “randomly” goes from
2/10 to 8/10. Id. at 3, 11-12. At the time of the visit, petitioner reported his symptoms were
moderate and his pain was a 2/10. Dr. Varney administered a cortisone injection. Dr. Varney
stated “MRIs . . . show[] chronic tendinopathy of supraspinatus with some tendinitis and bursitis.
Also has a downward sloping acromion that causes rotator cuff impingement.” Id. at 7.
After the cortisone injection, petitioner continued to see Dr. Thacker until November
2016. Medical records filed after November 2016 do not document complaints of shoulder pain
and physical examinations reveal normal range of motion.
In summary, the evidence establishes that petitioner had significant pain for
approximately five months, from his vaccination in November 2015 to his cortisone injection in
April 2016. Petitioner’s period of treatment totals approximately one year, until November
2016. During this year, petitioner visited a chiropractor for physical therapy 28 times, underwent
one MRI study, and received one cortisone injection. The undersigned finds petitioner’s visits to
and treatment by a chiropractor is similar to that of a physical therapist. Petitioner’s medical
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records show that his physician instructed petitioner to continue physical therapy with Dr.
Thacker or referred to petitioner’s visits with Dr. Thacker as physical therapy. See Pet. Ex. 2 at
7; Pet. Ex. 4 at 39; Pet. Ex. 7 at 5.
The undersigned has reviewed the cases cited by petitioner to support his position on the
appropriate amount for an award of actual pain and suffering. The undersigned finds this case is
similar to Johnson and George.
The petitioner in Johnson took oral steroids, attended six physical therapy sessions, and
received one cortisone injection, after which her pain levels decreased. Johnson, 2021 WL
836891 at *7. Similarly, petitioner here received one cortisone injection around five months
after vaccination; however, petitioner here visited a chiropractor a total of 28 times, which is 22
more visits than the petitioner in Johnson. The Johnson petitioner also “reported only minor
discomfort with certain movements” six months post-vaccination, while petitioner in this case
continued to see a chiropractor until around one year post-vaccination. Id. Because of the
petitioner’s additional visits to a chiropractor and extended treatment period, the undersigned
finds an award greater than the Johnson petitioner received ($65,000.00) is appropriate.
The petitioner in George, like petitioner here, did not undergo surgery and received one
cortisone injection. George, 2020 WL 4692451 at *3. The petitioner in George attended more
physical therapy sessions (40 total, 12 more than petitioner here); however, the “initial course of
treatment lasted approximately seven months” in George, while petitioner’s lasted one year. Id.
Additionally, an MRI in George revealed minimal bursitis and mild tendinopathy of the
infraspinatus tendon, and petitioner’s MRI revealed “chronic tendinopathy of supraspinatus with
some tendinitis and bursitis.” Id. at *2; Pet. Ex. 2 at 7. Given the longer treatment period and
MRI differences, the undersigned finds an award greater than George ($67,000.00) appropriate.
Based on a review of the entire record and consideration of the facts and circumstances
presented here, as well as the cases cited by the parties, the undersigned awards $70,000.00 in
compensation for petitioner’s pain and suffering. Petitioner does not seek compensation for
future pain and suffering, and the evidence does not support such damages.
B. Award for Past Unreimbursed Expenses
Petitioner’s past unreimbursable medical expenses are uncontested. Both parties agree
petitioner’s past unreimbursable medical expenses equals $1,971.85, and thus, the undersigned
finds petitioner is entitled to receive an award of $1,971.85 for past unreimbursable medical
expenses.
VII. CONCLUSION
In determining an award in this case, the undersigned does not rely on a single decision
or case. Rather, the undersigned has reviewed the particular facts and circumstances in this case,
giving due consideration to the circumstances and damages in other cases cited by the parties and
other relevant cases, as well as her knowledge and experience adjudicating similar cases.
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Case 1:17-vv-00451-UNJ Document 108 Filed 08/05/22 Page 16 of 16
For all the reasons discussed above, the undersigned awards the following compensation:
A lump sum payment of $71,971.85, representing $70,000.00 for petitioner’s actual
pain and suffering and $1,971.85 for related out-of-pocket medical expenses, in the
form of a check payable to petitioner, Larry Wolford.
This amount represents compensation for all damages available under § 15(a).
The Clerk of Court is directed to enter judgment in accordance with this Decision.20
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Special Master
20 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing
of notice renouncing the right to seek review.
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