VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_19-vv-02019
Package ID: USCOURTS-cofc-1_19-vv-02019
Petitioner: Troy J. Bodak
Filed: 2019-12-31
Decided: 2023-12-01
Vaccine: influenza
Vaccination date: 2018-10-31
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Troy J. Bodak filed a petition alleging he suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received on October 31, 2018. The respondent challenged the claim, arguing that Mr. Bodak could not demonstrate a Table SIRVA within the required timeframe and that his pain extended beyond his shoulder. In a prior decision, the Special Master found that Mr. Bodak failed to establish that his shoulder pain began within 48 hours of vaccination and that his pain was not limited to his left shoulder. Despite being given opportunities to show cause why his claim should not be dismissed, Mr. Bodak repeatedly failed to comply with court orders, missing deadlines to submit an expert report and provide necessary information. He also failed to respond to the court's orders. Consequently, the case was dismissed for failure to prosecute and failure to follow court orders. No compensation was awarded.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_19-vv-02019-0
Date issued/filed: 2022-10-12
Pages: 10
Docket text: PUBLIC ORDER/RULING (Originally filed: 09/08/2022) regarding 45 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-02019-UNJ Document 47 Filed 10/12/22 Page 1 of 10
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-2019V
UNPUBLISHED
TROY BODAK, Chief Special Master Corcoran
Petitioner, Filed: September 8, 2022
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Onset; Influenza
HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA)
Richard H. Moeller, Moore, Heffernan, et al., Sioux City, IA, for Petitioner.
Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On December 31, 2019, Troy Bodak 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 shoulder injury related to vaccine
administration (“SIRVA”) as a results of an influenza (“flu”) vaccine he received on
October 31, 2018. Petition, ECF No. 1 at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
1 Because this unpublished Fact Ruling 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 the Fact 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, 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-02019-UNJ Document 47 Filed 10/12/22 Page 2 of 10
For the reasons stated below, I conclude that Petitioner has not established by
preponderant evidence that the onset of his shoulder pain occurred within 48 hours of
vaccination, as required for a Table SIRVA claim. And because a non-Table claim may
not be possible, I shall require Petitioner to show cause why the claim in its entirety should
not be dismissed.
I. Relevant Procedural History
Two years after the claim’s initiation, Respondent filed his Rule 4(c) Report
challenging compensation, arguing (among other things) that Petitioner could not
demonstrate that he had suffered a Table SIRVA within the appropriate timeframe. ECF
No. 39 at 7-8. To resolve this issue, a schedule was established for a fact ruling on the
record. ECF No. 41.
On August 9, 2021, Petitioner filed a brief in support of his claim. ECF No. 43.
Specifically, Petitioner asserted that the medical records (at least those the Petitioner
accepts as correct) and witness affidavits collectively demonstrate that his left shoulder
pain began within 48 hours of his vaccination. Id. at 7,18-22. Petitioner further submitted
that the records indicate that his pain was limited to his left shoulder. Id. at 23-24. In
response, Respondent maintained the contrary, arguing that contemporaneous medical
records placed onset “well after forty-eight hours elapsed.” ECF No. 44 at 1; see also
ECF No. 44 at 11-14. Respondent further asserted that Petitioner’s pain extended beyond
the left shoulder in which the vaccine administered. Id. at 17-18. This matter is now ripe
for adjudication.
II. Issue
At issue is whether (a) Petitioner’s first post-vaccination onset (specifically pain)
occurred within 48 hours as set forth in the Vaccine Injury Table and Qualifications and
Aids to Interpretation (“QAI”) for a Table SIRVA and (b) whether Petitioner’s pain was
limited to the shoulder in which the vaccine was administered. 42 C.F.R. § 100.3(a) XIV.B.
(2017) (influenza vaccination); 42 C.F.R. § 100.3(c)(10)(ii) (required onset for pain listed
in the QAI); 42 C.F.R. § 100.3(c)(10)(iv) (pain and reduced range of motion limited to the
vaccinated shoulder).
III. Authority
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,
2

Case 1:19-vv-02019-UNJ Document 47 Filed 10/12/22 Page 3 of 10
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 recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 381, 391 (1998). The Court later 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 & Human 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.
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).
3

Case 1:19-vv-02019-UNJ Document 47 Filed 10/12/22 Page 4 of 10
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).
IV. Finding of Fact
I make these findings after a complete review of the record, including all medical
records, affidavits, expert reports, Respondent’s Rule 4 report, and additional evidence
filed.3 Specifically, I note the following:
• On October 31, 2018, Petitioner received a flu vaccination in his left deltoid
at St. Francis Hospital. Ex. 2 at 2.
• On November 12, 2018, Petitioner presented to the Emergency Department
in the evening. Ex. 3 at 6. Petitioner reported, “I had a flu shot about three
weeks ago, it still hurts, and today I am unable to move my arm.” Id. at 11.
Petitioner’s pain was “progressively worse” and “began after flu shot that he
believes was improperly placed and caused pain.” Id. at 16. A duration of “3
weeks” was noted. Id. There were no signs of neurological deficits, neck or
back pain, or joint swelling. Id. at 17. Petitioner exhibited limited range of
motion and tenderness. Id. The physician’s impression was “shoulder pain.
Likely rotator cuff tendinopathy. Doubt any relation to flu shot.” Id. at 18.
Petitioner was excused from work for three days and prescribed
prednisolone and tramadol. Id. at 9, 15.
• Petitioner followed up at his primary care office with Dr. Ryan Colligan on
November 13, 2018. Ex. 4 at 9. Dr. Colligan documented that “p[atient]
states that he got a flu shot 3 weeks ago at St. Francis. He states that he
3 While I have not specifically addressed every medical record, or all arguments presented in the parties’
briefs, I have fully considered all records as well as arguments presented by both parties.
4

Case 1:19-vv-02019-UNJ Document 47 Filed 10/12/22 Page 5 of 10
was fine for the first two weeks but for the past week he has had severe
pain and decreased range of motion.” Id. Duration was noted to be three
weeks. Id. The physical exam showed, “[left] shoulder severely limited in
Flexion, extension, and abduction.” Id. at 10. An x-ray of Petitioner’s left
shoulder was ordered. Id.
• Petitioner again returned to his primary care office on November 16, 2018,
this time meeting with Dr. Bliss Yoon. Ex. 4 at 6. The visit was “follow up for
adhesive capsulitis” which had been “occurring for 1 week.” Id. Petitioner
now reported “he was driving last Friday on 11/9/2018 when the pain came,”
and onset was noted as “11/9/18 accident at work.” Id. Petitioner’s left
shoulder pain radiated up the left side of his neck and was “located in the
upper arm, shoulder, and entire arm.” Id. 6, 7. Dr. Yoon noted that the x-ray
ordered on November 13, 2018, was normal. Id. Dr. Yoon assessed
Petitioner with possible adhesive capsulitis, rotator cuff injury, biceps
tendon strain, and shoulder strain, though thought it was unlikely to be
adhesive capsulitis due to extreme guarding. Id. at 7. Petitioner was referred
to physical therapy and recommended to follow up with Dr. Yoon in one
month. Id.
• On November 27, 2018, Petitioner followed-up with Dr. Yoon. Ex. 4 at 3.
The history from November 16, 2018, was repeated and Dr. Yoon noted
that she had seen Petitioner on November 20th4 for his left shoulder. Id.
Following examination, Dr. Yoon noted “left rotator cuff tendinitis. Likely
supraspinatus. Also potential for subscapularis but patient is too
apprehensive and will not allow for active or passive ROM of the left
shoulder...unlikely to be adhesive capsulitis” Id. at 4. No neck pain was
noted. Id. Dr. Yoon documented that Petitioner’s injury was “likely from work
since pain onset came about driving home after work.” In addition to
referring Petitioner to physical therapy, Dr. Yoon wrote a note for light duty.
Dr. Yoon instructed Petitioner to follow up with Worker’s Compensation. Id.
• Approximately two months after referral, Petitioner presented for a physical
therapy consultation on January 29, 2019. Ex. 8 at 19. The therapist,
Deborah Kargl, noted “sudden onset of severe L shoulder pain when lifting
something at work,” with an onset date of “11/09/20195.” Id. Petitioner also
reported that “he had flu shot about two weeks prior to the pain and thought
they injected into his arm too high.” Id. His entire arm became numb
intermittently. Id. at 21. Petitioner could only tolerate minimal movement of
his left shoulder at this consultation and “appeared to be in too much
radicular pain for adhesive capsulitis.” Id. at 22. The physical therapist
suggested “further testing of cervical area for radicular problem or
4 This date is incorrect; Petitioner was actually seen by Dr. Yoon on November 16, 2018. See Ex. 4 at 6.
5 This date appears to be a typographical error—meant to be “11/9/2018,” based on prior medical records
and the fact that a 2019 date remained in the future.
5

Case 1:19-vv-02019-UNJ Document 47 Filed 10/12/22 Page 6 of 10
impingement of left shoulder.” Id. Petitioner was recommended to visit an
orthopedist prior to continuing physical therapy. Id.
• On February 11, 2019, Petitioner presented to a new primary care office for
a complete physician exam to establish care. Ex. 5 at 18. “Sirva s/p flu
vaccine” was documented under past medical history. Debra Losey, PA
examined Petitioner and documented: “routine adult health examination
without abnormal findings.” Id. He did not report any pain or request any
pain medication for his shoulder. He was found to have normal motor
strength for upper and lower extremities as well as full range of motion. Id.
at 19.
• On March 24, 2019, Petitioner presented to the Emergency Department for
his migraines. Ex. 8 at 1. Upon examination, “normal ROM in all four
extremities; non-tender to palpation” was noted. Id. at 5. Petitioner had full
strength and intact sensation. Id.
• On March 25, 2019, Petitioner presented to Debra Losey, PA, for a rash
and no shoulder complaints were noted. Ex. 5 at 16-17.
• On April 30, 2019, Petitioner returned to Debra Losey, PA, reporting pain in
his shoulder from a flu shot six months ago. Ex. 5 at 13. He reported that
the pain started immediately after administration of the flu shot. Id. at 14.
Petitioner advised that he had a lawsuit pending but that it was not a
workman’s compensation case. Id. PA Losey noted that “it is unclear why”
Petitioner had not yet been evaluated at this office for his arm pain. Id. She
was concerned that his left shoulder pain was associated with a different
mechanism of action than the flu shot injection or that Petitioner was
developing frozen shoulder again. Id. at 13. A full shoulder exam could not
be done due to pain. See id. at 14. Petitioner was referred to physical
therapy and for x-ray and MRI imaging. Id. at 13.
• Petitioner followed-up with Debra Losey, PA on June 28, 2019. Ex. 5 at 9.
Petitioner’s MRIs were taken on June 18, 2019 and showed partial tears of
the supraspinatus and infraspinatus, as well as tendinopathy. Id. at 10, 30-
32. Petitioner was referred to an orthopedist. Id. at 9. Petitioner attributed
his rotator cuff and tendinopathy to his employer “not accommodating [him]
after the flu shot,” stating that his “arm was numb” and he could not use it.
Id. at 10.
• On July 22, 2019, Petitioner presented to Dr. Schafer for an orthopedic
consultation. Ex. 6 at 7-8. Petitioner reported feeling shoulder pain “directly
after” his flu shot, and “he went to the emergency room [] that same day.”
Id. at 8. Petitioner reported shoulder pain and some associated neck pain.
Id. Petitioner lacked “10 degrees from contralateral side” and “ER 25 deg
lacking 5 to 10 degrees from contralateral side.” Id. at 9. Dr. Schafer
6

Case 1:19-vv-02019-UNJ Document 47 Filed 10/12/22 Page 7 of 10
reviewed Petitioner’s MRIs and observed degenerative change with
tendinopathy and partial tearing in the supraspinatus and more substantially
in the infraspinatus tendons. There was glenohumeral joint narrowing and
a small joint effusion with some cystic and subchondral degenerative
change in the region of the greater tuberosity, as well as moderate change
in the left acromioclavicular joint with undersurface spurring. Id. at 10.
Petitioner received a subacromial corticosteroid injection with an immediate
and significant decrease in pain. Id. at 10-11. Based on Petitioner’s history,
Dr. Schafer felt that Petitioner may have received his flu vaccine in his
rotator cuff muscle or bursa. Id. at 11. Dr. Schafer also assessed that
Petitioner’s tendinitis, partial-thickness tearing, and cystic changes were
likely “long-standing in nature” and “aggravated” after receiving the injection
while continuing with work. Id. Dr. Schafer referred Petitioner to physical
therapy. Id.
• On September 5, 2019, Petitioner followed up with Dr. Schafer. Ex 5 at 21.
Petitioner reported continued pain but improved range of motion. Id. at 22.
He had not started physical therapy and Dr. Shafer did not want to give him
a repeat injection. Id. at 24. “I have given him a new prescription for physical
therapy and the importance of doing this was discussed with the patient
today. I again told the patient that I do not think that he has a surgical issue
given the fact that he only has small partial tearing and has shown
improvement in his symptoms.” Id.
The medical records contain a number of entries that are inconsistent with a finding
that Petitioner’s onset occurred in the timeframe set by the SIRVA Table claim. Petitioner
did not report immediate onset of pain to a medical professional until six months and nine
months after vaccination, respectively. These reports were made later in time and are not
consistent with more contemporaneous records. And when Petitioner reported pain
immediately after vaccination on April 30, 2019, he also noted the existence of a pending
lawsuit and six months of pain despite multiple intervening medical visits during which no
shoulder pain or limited range of motion were found or reported.6 The history Petitioner
provided of his shoulder pain nine months after vaccination (July 22, 2019) included
inaccuracies such as his report that he presented to the emergency room the same day
as his vaccination. See Ex. 6 at 8.
Compounding the lack of a contemporaneous report of onset close in time to
vaccination are the inconsistent onset reports in Petitioner’s medical records and in his
6 Further belying the reliability of this later report is Petitioner’s explanation that he established care at a
new primary care office because his prior doctors were not doing anything for his shoulder. Ex. 1 at ¶18.
Yet when he presented to establish care on February 11, 2019, undergoing a full physical examination, he
reported no shoulder pain. Ex. 5 at 18-19.
7

Case 1:19-vv-02019-UNJ Document 47 Filed 10/12/22 Page 8 of 10
Worker’s Compensation claim.7 Most contemporaneous to his vaccination, on November
12, 2018, Petitioner reported that his pain had been progressively worse for about three
weeks, after what he believed to be a misplaced vaccination (placing onset or vaccination
prior to October 31, 2018). Ex. 3 at 16. The next day (November 13th) at his primary care
office, Petitioner reported that he had been fine for two weeks, but had severe pain in the
past week (now placing onset only a few days before November 13, 2018). Ex. 4 at 9-10.
Other records announced even later onsets. During his two follow-up appointments
for shoulder pain at his primary care office, Petitioner referenced lifting at work and driving
on November 9, 2018, identifying that date as when his pain began. Ex. 4 at 3, 6-7.
Petitioner then prepared a Worker’s Compensation claim on November 27, 2018, in which
he identified November 12, 2018 as his date of injury.8 Ex. 12 at 36, 58. On January 29,
2019, Petitioner reported at his physical therapy consultation that he had a sudden onset
of pain at work and he had a flu shot about two weeks prior to the pain. Onset of
“11/9/2019” was noted (likely a typo for the date November 9, 2018). Ex. 9 at 18. It was
not until six months post-vaccination, in the midst of a period in which he was not obtaining
treatment, did petitioner revise his onset report to reflect immediate pain after the
vaccination. Ex. 5 at 13-14.
All of the above preponderantly supports an onset more than 48 hours post-
vaccination – outweighing Petitioner’s arguments to the contrary. One of Petitioner’s
primary assertions is that Dr. Colligan’s and Dr. Yoon’s records are simply incorrect, and
he submitted a supplemental affidavit correcting the record. ECF No. 43 at 18-19; Ex. 13.
In it, he states that he never reported that he was fine for the first two weeks, never
reported a work accident, and never reported that pain occurred while he was driving
home from work. Id. ¶¶16, 18, 19, 22. Thus, in Petitioner’s estimation the history
documented in Dr. Yoon’s record “doesn’t make any sense.” Id. at ¶22.
However, even if I were to accept Petitioner’s explanation as to why these records
are not trustworthy or incorrect, other records similarly fail to support his onset claim. For
example, petitioner still reported “sudden onset of severe [left] shoulder pain when lifting
something at work” during his physical therapy consultation on January 29, 2019, with a
documented onset of November 9. Ex. 8 at 19. Petitioner further reported a flu vaccine
7Throughout the record, it appears that Petitioner may have been confused as to when he received his
vaccination, or may have been counting weeks differently, as two full weeks after October 31, 2018 is
November 14, 2018. Petitioner may have considered the week he received his vaccination as a week, i.e.
week one being October 31, 2018-November 4, week two being November 5-November 11, and week
three being November 12 on.
8 I am aware of Petitioner’s argument that this was later revised to 10/31/2018 with the mechanism of injury
changed to reflect the flu shot. However, this change was made in November 2019 - shortly before the filing
of this matter and a year after petitioner’s vaccination.
8

Case 1:19-vv-02019-UNJ Document 47 Filed 10/12/22 Page 9 of 10
“two weeks prior to the pain.” Id. at 21 (emphasis added). While Petitioner questions the
therapist’s qualifications or credentials in his brief, that argument provides no persuasive
reason to give such record proof less weight. It would be unreasonable to ignore the
contemporaneous treatment records, in favor of the conclusion that somehow multiple
independent physicians or treaters misunderstood Petitioner’s reports and/or
manufactured histories.
Petitioner also submitted additional affidavits to support his claim of immediate
onset following the vaccination: the affidavit of his employer at that time – Moeen Sharaf,
the affidavit of his romantic partner – Tina Rollins, and the affidavit of his landlord, Janice
Torneo. Ex. 14; Ex. 15; Ex. 16. While the affidavits from Ms. Rollins and Ms. Torneo
facially support Petitioner’s onset claim, they are inconsistent with the medical records.
Ms. Rollin’s statements that Petitioner had a painful time getting dressed, had difficulty
sleeping, and cried out in pain during the week immediately following vaccination (Ex. 15
at ¶¶7-10), is squarely contradicted by Petitioner’s reports that he was fine for two weeks
and that he had a flu vaccine two weeks prior to the pain. Ex. 8 at 21; Ex. 4 at 9. On the
other hand, the affidavit from Ms. Sharaf is more consistent with Petitioner’s reports to his
medical providers. Ms. Sharaf submitted and affirmed her handwritten workplace records
that indicate Petitioner did not report shoulder pain to her until November 8, 2018 and
November 12, 2018. Ex. 12 at 18; Ex. 14. Although after-the-fact statements can
sometimes be deemed persuasive when consistent and compelling, the affidavits
submitted in this matter do not establish immediate onset.
I acknowledge that the standard applied to SIRVA claims on the onset issue is
fairly liberal, and will often permit a determination that onset began within the 48-hour
timeframe set by the Table, based on records prepared a few months after vaccination,
and/or corroborated by sworn witness statements intended to amplify otherwise-vague
records. However, not every SIRVA claim can be so preponderantly established, and not
where the medical record contradicts a Petitioner’s allegations. Such is the case here.
While some contemporaneous records do support a Table SIRVA onset, the
preponderance of all evidence in its totality does not.
In addition to the onset issue, the parties in this matter disagree as to whether
Petitioner’s pain was limited to his left shoulder – and this too likely prevents a Table claim
from going forward. Petitioner argues that there is only one instance of pain radiating to
petitioner’s neck documented by Dr. Yoon, and no other evidence to suggest Petitioner’s
pain was not limited to his left shoulder. ECF No. 43 at 23-25. However, based on my
review of the entire record, it appears that Petitioner’s symptoms extended beyond his
left shoulder. At several appointments, Petitioner reported pain in his entire arm, pain
9

Case 1:19-vv-02019-UNJ Document 47 Filed 10/12/22 Page 10 of 10
radiating into his neck/associated neck pain, and that his entire arm became numb at
times. Ex. 4 at 6-7; Ex. 5 at 10; Ex. 6 at 8; Ex. 8 at 21.
Accordingly, I find (a) Petitioner has not preponderantly established that onset of
his shoulder pain occurred within 48 hours of vaccination and (b) Petitioner’s shoulder
pain was not limited to his left shoulder. Petitioner cannot proceed in this action with his
Table SIRVA claim. I also have doubts as to whether any causation-in-fact claim could
succeed. Petitioner shall therefore show cause why the claim as a whole should not be
dismissed. In so doing, he shall identify other cases in which similarly-situated parties
have prevailed on a non-Table SIRVA claim under comparable circumstances.
V. Conclusion
Petitioner’s Table SIRVA claim is hereby dismissed. Petitioner shall, by no later
than Monday, October 10, 2022, show cause as to why his claim as a whole should
not be dismissed. Respondent’s response to Petitioner’s show cause filling will be
due 30 days thereafter.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
10

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DOCUMENT 2: USCOURTS-cofc-1_19-vv-02019-1
Date issued/filed: 2023-12-01
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 10/31/2023) regarding 49 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:19-vv-02019-UNJ Document 51 Filed 12/01/23 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-2019V
TROY J. BODAK, Chief Special Master Corcoran
Petitioner,
v. Filed: October 31, 2023
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Richard H. Moeller, Moore, Heffernan, et al., Sioux City, IA, for Petitioner.
Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DISMISSING PETITION1
On December 31, 2019, Troy J. Bodak 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 shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza vaccine that he received on October
31, 2018. Petition, ECF No. 1 at 1.3 The case was assigned to the Special Processing
Unit of the Office of Special Masters.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, it must be
made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government Act
of 2002. 44 U.S.C. § 3501 note (2018) (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, 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).
3 The Petition also erroneously refers to the administration of a tetanus vaccine. See Petition at 1.

Case 1:19-vv-02019-UNJ Document 51 Filed 12/01/23 Page 2 of 3
On June 14, 2021, Respondent filed his Rule 4(c) Report challenging
compensation, arguing that Petitioner could not demonstrate that he suffered a Table
SIRVA within the appropriate timeframe. ECF No. 39 at 7. Respondent also argued that
Petitioner’s pain extended beyond his left shoulder. Id. at 8.
Petitioner filed a brief addressing Respondent’s contentions on August 9, 2021,
and Respondent filed his response on September 9, 2021. ECF Nos. 43, 44. After
conducting a complete review of the record, I concluded that Petitioner was unable to
proceed with his Table SIRVA claim due to his failure to preponderantly establish that the
onset of his shoulder pain occurred within 48 hours of vaccination. Findings of Fact and
Conclusions of Law, issued September 8, 2022, ECF No. 45. I also found that Petitioner’s
pain was not limited to his left shoulder. Id. Despite my reasoned and substantiated
doubts, however, Petitioner was given an additional 32 days – or until October 10, 2022
– to show cause why his claim as a whole should not be dismissed. Id. at 10.
On October 11, 2022 – a day after Petitioner’s deadline to act – Petitioner filed a
motion requesting an extension of time. ECF No. 46. In it, he represented that an
additional 30 days was needed for the completion of an orthopedic expert report offering
an opinion on causation. Id. Although Petitioner’s time to comply with the order to show
cause was thereafter extended to November 9, 2022, on November 11, 2022 – this time,
two days after the new deadline – Petitioner again requested an additional 30 days (until
December 12, 2022) to show cause. ECF No. 48. This request was also granted- but this
time, not only did Petitioner (again) fail to comply, he failed to file a response of any kind.
ANALYSIS
It is a petitioner's obligation to follow and respond to orders issued by a special
master in a case. The failure to do so – whether on account of attorney error, inaction, or
because a petitioner has failed to stay in contact and/or communicate with counsel - is
grounds for the claim's dismissal. Padmanabhan v. Sec'y of Health & Human Servs., 638
Fed. App'x 1013 (Fed. Cir. 2016); Tsekouras v. Sec'y of Health & Human Servs., 26 Cl.
Ct. 439 (1992), aff'd, 991 F.2d 810 (Fed. Cir. 1993) (per curiam), (“[c]ontrolling precedent
considers dismissal appropriate when failure to act is deemed willful, when it is in violation
of court orders, when it is repeated, and when clear warning is given that the sanction will
be imposed”); see also Vaccine Rule 21(b) (“[t]he special master or the court may dismiss
a petition or any claim therein for failure of the petitioner to prosecute or comply with these
rules or any order of the special master or the court.”).
Here, as is abundantly evident from the procedural history, Petitioner has
repeatedly failed to adhere to the orders in this matter. And he has provided no
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reasonable justification for his lapses, nor has he provided the evidence and information
I noted was necessary to resolve the claim in his favor. He otherwise has taken no action
in this case in the almost year’s time since my last Order.
Accordingly, this case is DISMISSED for failure to prosecute and failure to
follow orders. The Clerk of Court shall enter judgment accordingly.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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