VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-01332
Package ID: USCOURTS-cofc-1_19-vv-01332
Petitioner: Terry Petty
Filed: 2019-08-30
Decided: 2025-02-05
Vaccine: influenza
Vaccination date: 2016-09-13
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Terry Petty filed a petition alleging that an influenza vaccine received on September 13, 2016, caused a shoulder injury related to vaccine administration (SIRVA), a Table injury. Mr. Petty, a 63-year-old retail district manager, reported left shoulder pain with decreased function within 24 hours of vaccination. He sought medical attention, and his physicians noted pain with motion but consistently found full range of motion in his left shoulder. The medical records indicated a rotator cuff tear diagnosed via MRI in November 2017. The respondent contested entitlement, arguing Mr. Petty failed to demonstrate symptom onset within 48 hours and that his injury did not meet the severity requirement of the Vaccine Act, specifically the loss of range of motion. The court found that while Mr. Petty experienced pain, the medical records did not reflect a demonstrated reduction in range of motion, which is a requirement for a Table SIRVA claim. Therefore, the court dismissed the Table SIRVA claim but granted Mr. Petty an opportunity to pursue an off-Table claim based on the same facts. The decision was issued on February 5, 2025.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-01332-0
Date issued/filed: 2025-02-05
Pages: 8
Docket text: PUBLIC ORDER/RULING (Originally filed: 09/24/2024) regarding 23 Findings of Fact & Conclusions of Law ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:19-vv-01332-UNJ Document 26 Filed 02/05/25 Page 1 of 8
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1332V
TERRY PETTY,
Chief Special Master Corcoran
Petitioner,
v.
SECRETARY OF HEALTH AND Filed: September 24, 2024
HUMAN SERVICES,
Respondent.
David J. Carney, Green & Schafle, LLC, Philadelphia, PA, for Petitioner.
Camille J. Webster, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW DISMISSING TABLE CASE1
On August 30, 2019, Terry Petty 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 alleged that as a result of an influenza (“flu”) vaccine received
on September 13, 2016, he suffered a shoulder injury related to vaccine administration
(“SIRVA”) a Vaccine Table injury. Petition (ECF No. 1) at Preamble. The case was
assigned to the Special Processing Unit (“SPU”) of the Office of Special Masters.
For the reasons discussed below, I find that the evidence preponderates against
the conclusion that the vaccination at issue caused any reduced range of motion,
1 Because this ruling and decision contains a reasoned explanation for the action in this case, I am 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 this Ruling/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, I
agree that the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).

Case 1:19-vv-01332-UNJ Document 26 Filed 02/05/25 Page 2 of 8
meaning Petitioner’s Table claim is not viable. Petitioner will, however, be given an
opportunity to establish an “off-Table” claim, based on the same facts.
I. Relevant Procedural History
The claim was initiated on August 30, 2019, and the relevant medical records were
filed on September 3, 2019. ECF Nos. 1, 5. Between June and December 2020,
Respondent filed two status reports requesting additional time to review the case and
prepare his position. ECF Nos. 12 – 13. On December 15, 2020, Respondent filed a status
report requesting 45 days to file his Rule 4(c) report and notified Court he was not
interested in proceeding in settlement negotiations. ECF No. 14.
On February 4, 2021, Respondent filed his Rule 4(c) Report contesting entitlement
based on the argument that Petitioner failed to demonstrate that his shoulder pain began
within 48 hours of vaccination, and that Petitioner had not met the severity requirement
of the Vaccine Act. Respondent’s Report at 5-6. ECF No. 15.
In response, Petitioner filed a Motion for a Ruling on the Record on February 13,
2023, arguing that he had met the severity requirement and otherwise established
entitlement to compensation for a SIRVA Table Injury. Petitioner’s Motion for Ruling on
the Record and Brief in Support of Damages (“Mot.”), ECF No. 18. Petitioner also
requested an award of $60,000.00 for past and future pain and suffering. Id. at 20.
Respondent opposed the motion on March 31, 2023, reiterating the arguments set
forth in the Rule 4(c) Report, that Petitioner did not meet the requirements to prove he
suffered a SIRVA within 48 hours and suffered residual effects for more than six months
after vaccination. Respondent’s Response to Petitioner’s Motion for Ruling on the Record
(“Opp.”), ECF No. 19 at 7. Petitioner filed his reply on April 6, 2023. Petitioner’s Reply
Brief in Support of Petitioner’s Motion for Ruling on the Record and Brief in Support of
Damages (“Reply”), ECF No. 20. The matter is ripe for resolution.
II. Relevant Medical History
1. Medical Records
Mr. Petty, (a 63-year-old man employed as a district manager for a retail company
at the time of his vaccination) received a flu vaccine in his left shoulder on September 13,
2016, at Fred’s Pharmacy located in Tupelo, Michigan. Ex. 1. Petitioner’s medical records
show he had no history of left shoulder pain or injury.
2

Case 1:19-vv-01332-UNJ Document 26 Filed 02/05/25 Page 3 of 8
On October 17, 2016 (34 days after vaccination), Mr. Petty presented to his
primary care provider (“PCP”), Dr. Brett Oakley Brown, with a complaint of “left arm pain
with decreased function since [he] received [a] flu shot on 9/13/2016”. Ex. 3 at 117. Dr.
Brown diagnosed Mr. Petty with “frozen shoulder” and referred Petitioner to an
orthopedist. Id.
The next day, October 18, 2016, Mr. Petty had his first appointment with
orthopedist Dr. Gordon Jones. Ex. 4 at 7. Dr. Jones performed a physical exam noting
that Mr. Petty had “full range of motion with pain, with initiation of motion” and assessed
“rotator cuff tendinitis, left.” Id. at 19, 20. Mr. Petty reported to Dr. Jones that he believed
that his pain started after the vaccination he had received in September. Dr. Jones
ordered x-rays, prescribed a Medrol-Dosepak, physical therapy, and requested that Mr.
Petty return in one month for a follow-up appointment. Id. at 20.
Mr. Petty had three appointments with his PCP between January and May 2017,
regarding respiratory, sinus issues, and a wellness appointment. Ex. 3 at 123 – 157. Mr.
Perry did not report any shoulder pain at any of these visits. Id.
On August 11, 2017, Mr. Petty had an appointment with Dr. Jones for right
prepatellar bursitis. Ex. 4 at 24. Dr. Jones preformed an aspiration of Mr. Petty’s right
knee. Id. Mr. Perry did not discuss any pain in his shoulder during the appointment.
On August 28, 2017, Petitioner received another flu vaccine. Ex. 3. at 35. It is not
clear which shoulder this flu shot was administered in or where Petitioner received it.
On November 21, 2017, Mr. Petty returned to Dr. Jones for a second evaluation of
his left shoulder. Ex. 4 at 28. Dr. Jones performed a physical exam and noted that Mr.
Petty “show[ed] full range of motion, pain with maximum flexion and abduction”. Id. at 29.
Dr. Jones notes that the rotator cuff is “weak” and tender with supraspinatus and
infraspinatus testing. Id. Dr. Jones ordered an MRI and instructed that Mr. Petty follow up
for further evaluation. Id. Petitioner underwent the MRI the same day. Id. at 30.
Mr. Petty met with Dr. Jones on November 28, 2017, to discuss the results of his
MRI. Ex. 4 at 31. Dr. Jones reported that the MRI “show[ed] an anterior edge
supraspinatus full thickness tear.” Id. He recommended that Mr. Petty undergo an
“arthroscopy and rotator cuff repair with extensive debridement”. Id. Mr. Petty stated that
he would be starting a new job and wanted to wait for some time before proceeding with
possible surgery. Id.
3

Case 1:19-vv-01332-UNJ Document 26 Filed 02/05/25 Page 4 of 8
All medical records pertaining to Petitioner’s shoulder injury have been filed as of
September 3, 2019. Statement of Completion, ECF No. 6.
2. Affidavit Evidence
Mr. Petty submitted an affidavit, dated September 3, 2019, in which he stated that
he had pain in his left shoulder within 24 hours of receiving the relevant vaccination. Ex.
2 at 2. He stated that he “was hoping my shoulder pain would eventually resolve, but over
the course of the next month, I continued to have severe pain and decreased range of
motion in my shoulder.” Id. at 2. Over a month later, Mr. Petty “eventually” saw his PCP,
Dr. Brown, for his shoulder pain and was referred to orthopedist Dr. Jones. Dr. Jones
prescribed a Medrol-Dosepak, physical therapy, and recommended an MRI and a follow
up visit the next month.
Mr. Petty described that “[d]uring the next several months, my severe pain and
decreased range of motion continued, along with the sleepless nights due to the shoulder
pain. I didn’t realize how severe my shoulder injury was until I went back to the orthopedic
in late 2017 and received an MRI.” Ex. 2 at 3.
Ultimately, Mr. Petty explained that he “decided to hold off on any surgical options
because I recently lost my job of 40 years and was in the process of locating another job.
I continued to do physical therapy exercises on my own consisting of stretching and light
exercises … I was laid off in November 2017 because I was constantly in pain and could
not utilize both of my shoulders effectively. As a result, my job performance slipped,
leading to my termination.” Id. at 4.
III. Parties’ Respective Arguments
Petitioner argues that the medical records and affidavit clearly demonstrate that
he suffered a SIRVA injury following receipt of the flu vaccine on September 13, 2016.
He maintains that onset of his symptoms began within 48 hours of vaccination, that he
experienced associated decreased range of motion, and that his symptoms persisted for
longer than six months. Mot. at 1-2. Respondent has argued in reaction that Petitioner’s
claim fails because Petitioner fails to show by a preponderance of evidence that the onset
of his shoulder pain occurred within 48 hours of vaccination, and that the submitted
evidence does not reflect Petitioner suffered any range of motion loss, or that Petitioner’s
alleged injury lasted for longer than six months. Response at 5-7.
4

Case 1:19-vv-01332-UNJ Document 26 Filed 02/05/25 Page 5 of 8
IV. Applicable Law
Pursuant to Vaccine Act Section 13(a)(1)(A), a petitioner must prove, by a
preponderance of the evidence, the matters required in the petition by Vaccine Act
Section 11(c)(1). 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.
Section 13(b)(1). “Medical records, in general, warrant consideration as trustworthy
evidence. The records contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in
the balance, accuracy has an extra premium. These records are also generally
contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs., 993
F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” Murphy v. Sec’y of
Health & Hum. Servs., No. 90-882V, 1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25,
1991), quoted with approval in decision denying review, 23 Cl. Ct. 726, 733 (1991), aff'd
per curiam, 968 F.2d 1226 (Fed.Cir.1992)). And the Federal Circuit recently “reject[ed] as
incorrect the presumption that medical records are accurate and complete as to all the
patient’s physical conditions.” Kirby v. Sec’y of Health & Hum. Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has outlined four possible explanations
for inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y
of Health & Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health
& Hum. Servs., No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998).
The credibility of the individual offering such fact testimony must also be determined.
5

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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).
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.” Section 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.
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing Section 12(d)(3); Vaccine Rule 8); see also Burns v.
Sec’y of Health & Hum. Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within
the special master’s discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
V. Analysis
The record preponderates against the finding that Petitioner experienced the
required ROM limitations to meet that element of a Table SIRVA. As I have previously
explained, limited ROM is a QAI requirement for a Table SIRVA, along with evidence of
pain. Bolick v. Sec’y of Health & Hum. Servs., No. 20-893V, 2023 WL 8187307, at *7-8
(Fed. Cl. Spec. Mstr. Oct. 19, 2023). ROM need not be shown to have begun within 48-
hours of vaccination (as with pain), but there must be some post-vaccination record of
ROM limitations - and the ROM requirement is specific to actual, demonstrated movement
limitations. McNally v. Sec’y of Health & Hum. Servs., No., 2024 WL 4024429, at *4 (Fed.
Cl. Spec. Mstr. Jul. 31, 2024). Thus, a reluctance to move one’s arm or shoulder due to
pain is not equivalent.
The record reflects that Petitioner only sought medical attention four times for his
alleged injury. The first is when he visited his PCP, Dr. Brown, at Baptist Medical Group
on October 17, 2016. The records from this visit indicate a complaint of “left arm pain with
decreased function since [sic] received a flu shot on 9/13/16. Was having no problems
with arm prior to injection.” Ex. 3 at 117. This record does not contain any mention of
ROM issues or indication that Dr. Brown conducted a ROM test on Petitioner (although it
could be generously interpreted to suggest an ROM issue, in its reference to “decreased
function”).
6

Case 1:19-vv-01332-UNJ Document 26 Filed 02/05/25 Page 7 of 8
The next visit was on October 18, 2016, with Petitioner saw Dr. Jones at Columbus
Orthopedic Clinic. Dr. Jones’ impression was as follows: “Physical exam shows full range
of motion with pain with initiation of motion. He has no restriction of internal or external
rotation. His rotator cuff strength is 5/5.” Ex. 4 at 20 (emphasis added). Next, on
November 21, 2017, Petitioner returned to Dr. Jones. Once again, Dr. Jones noted that
the ”physical exam today shows full range of motion, pain with maximum flexion and
abduction.” Id. at 29 (emphasis added). Such records thus reflect that every time one of
Petitioner’s treating physicians tested him for range of motion, he exhibited full range of
motion. Finally, Petitioner returned to Dr. Jones on November 28, 2017, to discuss the
findings of his MRI. Id. at 32. These records do not reflect any discussion concerning
ROM.
Petitioner argues that the records reflect that he exhibited a decreased range of
motion. Petitioner notes that “on October 18, 2016, Dr. Jones observed that Petitioner’s
range of motion was associated ‘with range of initiation of motion’, that on August 11,
2017, Petitioner’s range of motion ‘with pain and tenderness in the prepatellar bursa’ was
documented.” Motion at 10. However, the noted ROM with pain and tenderness was
exhibited in Petitioner’s prepatellar bursa, not his left deltoid. Ex. 4 at 24. Additionally,
Petitioner cites his November 21, 2017, assessment by Dr. Jones, emphasizing the
notation that Petitioner “has pain with use especially abduction and reaching forward
consistent with pain in his rotator cuff.” Reply at 2 (citing Ex. 4 at 29). This does not
support a finding of limited ROM, as Petitioner seems to suggest, because the Table ROM
requirement involves proof of actual limitation.
In the instant case, although the records reflect that Petitioner had pain with motion
of his left shoulder, none of the records reflect a demonstrated reduction of ROM in the
left shoulder. Indeed, the opposite is the case - as all the available records reflect that
Petitioner exhibited full ROM in his left shoulder despite pain upon motion. I note that
Petitioner has submitted an affidavit in which he alleges reduced range of motion from
the onset of his alleged injury. Ex. 2 ¶ 10. However, this contention is directly contradicted
by the contemporaneous medical records that Petitioner has submitted, which show full
ROM, despite two separate visits that were approximately 11 months apart. Accordingly,
Petitioner has failed to show that he suffered loss of ROM from his alleged SIRVA, and
therefore his Table claim must fail.
Conclusion
Petitioner has not provided preponderant evidence to establish that he suffered
limited range of motion as required to establish a Table SIRVA case. Accordingly,
Petitioner’s Table SIRVA claim is dismissed. Pursuant to Vaccine Rule 3(d), I will issue a
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Case 1:19-vv-01332-UNJ Document 26 Filed 02/05/25 Page 8 of 8
separate Order reassigning this case out of SPU for the resolution of whether Petitioner
suffered an Off-Table injury.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8