VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-00271
Package ID: USCOURTS-cofc-1_20-vv-00271
Petitioner: Frank Weinberg
Filed: 2020-03-11
Decided: 2025-04-28
Vaccine: influenza
Vaccination date: 2017-11-16
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: entitlement_granted_pending_damages
Award amount USD: 

AI-assisted case summary:
Frank Weinberg, an adult police officer, received an influenza vaccine in his left arm on November 16, 2017. Within hours, he developed pain in his left shoulder and arm, which he reported to his primary care physician. Initially, his symptoms were attributed to potential cervical radiculopathy, and he received treatment including muscle relaxers and steroids, which provided little relief. He also experienced numbness in his fingers, later diagnosed as carpal tunnel syndrome, which the court found to be an incidental finding explaining some of his symptoms but unrelated to his shoulder injury. Despite initial confusion regarding the source of his pain, his orthopedic surgeon, Dr. Huffman, diagnosed a SIRVA-type injury consistent with vaccine-related bursitis. Mr. Weinberg underwent two surgical procedures on his left shoulder for conditions including biceps tendinitis, bursitis, and rotator cuff issues. The court found that Mr. Weinberg met all four criteria for a Table SIRVA injury, including no prior history of shoulder issues, onset within 48 hours of vaccination, pain and limited range of motion primarily in the shoulder, and no other condition explaining the shoulder symptoms. The court determined that the evidence preponderated in favor of a vaccine-related SIRVA injury and that he is entitled to compensation. The case will now proceed to the damages phase.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-00271-0
Date issued/filed: 2025-04-28
Pages: 13
Docket text: PUBLIC RULING (Originally filed: 4/2/2025) regarding 34 Ruling on Entitlement. Signed by Special Master Mindy Michaels Roth. (msg) Service on parties made.
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Case 1:20-vv-00271-UNJ Document 36 Filed 04/28/25 Page 1 of 13
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-271V
Filed: April 2, 2025
* * * * * * * * * * * * * * *
FRANK WEINBERG, *
*
Petitioner, *
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
Leigh Finfer, Esq., Muller Brazil LLP, Dresher, PA, for petitioner.
Adam Muffett, Esq., U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
Roth, Special Master:
On March 11, 2020, Frank Weinberg filed a petition for compensation pursuant to the
National Vaccine Injury Compensation Program,2 alleging that he suffered a left shoulder injury
related to vaccine administration (“SIRVA”) as a result of the influenza (“flu”) vaccine he
received on November 16, 2017. Petition, ECF No. 1.
After reviewing all the evidence presented, I find that petitioner has provided
preponderant evidence that the flu vaccine he received caused him to suffer a compensable
injury.
I. Applicable Statutory Scheme
Under the National Vaccine Injury Compensation Program, compensation awards are
made to individuals who have suffered injuries after receiving vaccines. In general, to gain an
1 Because this Ruling contains a reasoned explanation for the action taken 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 Ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b),
the parties have 14 days to identify and move to redact medical or other information, the disclosure of which would
constitute an unwarranted invasion of privacy. Any changes will appear in the document posted on the website.
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 (2018).

Case 1:20-vv-00271-UNJ Document 36 Filed 04/28/25 Page 2 of 13
award, a petitioner must make several factual demonstrations, including showing that an
individual received a vaccination covered by the statute; received it in the United States; suffered
a serious, long-standing injury; and has received no previous award or settlement on account of
the injury. Finally – and the key question in most cases under the Program – the petitioner must
also establish a causal link between the vaccination and the injury. In some cases, the petitioner
may simply demonstrate the occurrence of what has been called a “Table Injury.” That is, it may
be shown that the vaccine recipient suffered an injury of the type enumerated in the “Vaccine
Injury Table,” corresponding to the vaccination in question, within an applicable time period
following the vaccination also specified in the Table. If so, the Table Injury is presumed to have
been caused by the vaccination, and the petitioner is automatically entitled to compensation,
unless it is affirmatively shown that the injury was caused by some factor other than the
vaccination. § 300aa-13(a)(1)(A); § 300 aa-11(c)(1)(C)(i); § 300aa-14(a); § 300aa-13(a)(1)(B).
Relevant to this case, the Vaccine Injury Table lists a Shoulder Injury Related to Vaccine
Administration or “SIRVA” as a compensable injury if it occurs within 48 hours of vaccine
administration. § 300aa-14(a), as amended by 42 CFR § 100.3. Table Injury cases are guided by
statutory “Qualifications and aids in interpretation” (“QAIs”), which provide a more detailed
explanation of what should be considered when determining whether a petitioner has suffered an
injury listed on the Vaccine Injury Table. 42 CFR § 100.3(c). To be considered a “Table
SIRVA,” petitioner must show that his injury fits within the following definition:
SIRVA manifests as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the upper
arm. These symptoms are thought to occur as a result of unintended injection of
vaccine antigen or trauma from the needle into and around the underlying bursa of
the shoulder resulting in an inflammatory reaction. SIRVA is caused by an injury
to the musculoskeletal structures of the shoulder (e.g. tendons, ligaments, bursae,
etc.). SIRVA is not a neurological injury and abnormalities on neurological
examination or nerve conduction studies (NCS) and/or electromyographic (EMG)
studies would not support SIRVA as a diagnosis . . . . A vaccine recipient shall be
considered to have suffered SIRVA if such recipient manifests all of the
following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the
alleged signs, symptoms, examination findings, and/or diagnostic studies
occurring after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which the
intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient's symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
2

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42 CFR § 100.3(c)(10).
Alternatively, if no injury falling within the Table can be shown, the petitioner may still
demonstrate entitlement to an award by showing that the vaccine recipient’s injury was caused-
in-fact by the vaccination in question. § 300aa-13(a)(1)(A); § 300aa-11(c)(1)(C)(ii). To so
demonstrate, a petitioner must show that the vaccine was “not only [the] but-for cause of the
injury but also a substantial factor in bringing about the injury.” Moberly ex rel. Moberly v. Sec'y
of Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (quoting Shyface v. Sec'y of
Health & Human Servs., 165 F.3d 1344, 1352–53 (Fed. Cir. 1999)); Pafford v. Sec'y of Health &
Human Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006). In particular, a petitioner must show 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 proximate temporal relationship between vaccination and injury in
order to prove causation-in-fact. Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278
(Fed. Cir. 2005).
For both Table and Non–Table claims, Vaccine Program petitioners must establish their
claim by a “preponderance of the evidence”. § 300aa-13(a). That is, a petitioner must present
evidence sufficient to show “that the existence of a fact is more probable than its nonexistence . .
. .” Moberly, 592 F.3d at 1322 n.2. Proof of medical certainty is not required. Bunting v. Sec'y of
Health & Human Servs., 931 F.2d 867, 873 (Fed. Cir. 1991). However, a petitioner may not
receive a Vaccine Program award based solely on her assertions; rather, the petition must be
supported by either medical records or by the opinion of a competent physician. § 300aa-
13(a)(1). Once a petitioner has established their prima facie case, the burden then shifts to
respondent to prove, also by preponderant evidence, that the alleged injury was caused by a
factor unrelated to vaccination. Althen, 418 F.3d at 1278 (citations omitted); § 300aa-
13(a)(1)(B).
In this case, petitioner maintains that he suffered an injury consistent with a SIRVA
Table injury. Alternatively, he asserts that the medical evidence supports a non-Table shoulder
injury caused in fact by his flu vaccination. Petitioner’s Brief at 8-11, ECF No. 30.
II. Procedural History
The petition was filed on March 11, 2020, along with medical records. Petitioner’s
Exhibits (“Pet. Ex.”) 1-9, ECF No. 1. Petitioner filed a statement of completion on March 18,
2020, and the case was assigned to the Special Processing Unit (“SPU”) on April 3, 2020. ECF
Nos. 7-8.
Thereafter, the parties engaged in settlement negotiations for some time, but advised the
Court that they had reached an impasse on September 21, 2021. ECF No. 22. Respondent filed
his Rule 4(c) Report on November 5, 2021, recommending against compensation. Specifically,
respondent argued that petitioner did not meet the criteria for a Table SIRVA because he was
unable to show that there was no other condition or abnormality present that would explain his
symptoms, and he complained of symptoms outside of his shoulder. ECF No. 23.
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The case was reassigned to me on December 8, 2021. ECF Nos. 24-25. During a status
conference held on March 1, 2022, the medical records were discussed, and the parties agreed
that the case may benefit from the Vaccine Program’s internal ADR program. ECF No. 26. The
matter was then randomly assigned to the Chief Special Master for ADR on March 1, 2022. ECF
No. 27. The parties engaged in settlement discussions, but attempts at resolution were again
unsuccessful, and the case was removed from ADR on April 19, 2022. ECF No. 28. Petitioner
filed a status report on April 20, 2022, requesting to file a Motion for Ruling on the Record. ECF
No. 29.
Petitioner filed his Motion for Ruling on the Record on June 21, 2022. Motion, ECF No.
30. Respondent filed a response on July 5, 2022. Response, ECF No. 31. Petitioner did not reply.
I have determined that the parties have had a full and fair opportunity to present their
cases and that it is appropriate to resolve this issue without a hearing. See Vaccine Rule 8(d);
Vaccine Rule 3(b)(2); Kreizenbeck v. Sec’y of Health & Human Servs., 945 F.3d 1362, 1366
(Fed. Cir. 2020) (noting that “special masters must determine that the record is comprehensive
and fully developed before ruling on the record.”). Accordingly, this matter is now ripe for
resolution.
III. Factual History
A. Petitioner’s Medical History
Petitioner is a police officer with no history of left shoulder injury. See generally Pet. Ex.
2. He received a Fluarix vaccine in his left arm on November 16, 2017. Pet. Ex. 1.
On November 27, 2017, petitioner presented to his primary care physician (“PCP”) with
left arm pain. He reported persistent left arm pain that varied in location, including his shoulder
above his elbow, his lower arm, his hands, and his left trapezius. Pet. Ex. 2 at 59; Pet. Ex. 3 at 4.3
The pain was constant but varied in intensity and was aggravated even with small movements.
He felt as though his arm was weak and described the pain as burning in quality. He had no prior
history of shoulder or arm problems, and no recent fall or injury. Pet. Ex. 2 at 59. He reported
that the pain occurred out of nowhere right after receiving the flu vaccine on November 16,
2017. He denied swelling, redness, or pain at the injection site or other symptoms. Id. Petitioner
was examined by a nurse practitioner who noted a normal examination but for increased
discomfort with soft palpation of the left arm and shoulder. The assessment was “left arm
pain/neck pain/left shoulder pain, suspect musculoskeletal etiology, other possibility (sic) causes
including muscle aches related to flu vaccine and/or myalgias from taking statins.” Id. He was
prescribed Skelaxin and directed to restart Mobic, avoid aggravating movements, and consider
physical therapy (“PT”) depending on his response to medications. Id.
Petitioner returned to the PCP on December 5, 2017, reporting that he was now
experiencing numbness in his left first through third fingers noted as consistent with a C6-C7
radiculopathy, in addition to his left shoulder, left neck, and left arm soreness since receiving his
3 Petitioner’s Exhibit 3 contains the same primary care records as Petitioner’s Exhibit 2.
4

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flu vaccine. Pet. Ex. 2 at 59. Petitioner reported there may be a bit of weakness in his hand, but
his grip was solid. On physical examination, the doctor noted normal range of motion of his
cervical spine, but rotating his head to the left or bending laterally to the left elicited pain down
his left arm. Id. There was no sensory or motor deficit in his left arm. He was assessed with
stable cervical radiculopathy of C6-C7. A Medrol Dosepak was prescribed, with PT and an MRI
to be considered if his symptoms did not respond. Id.
Petitioner presented for PT on December 19, 2017. Pet. Ex. 4 at 30-38. He reported onset
of pain six weeks ago, after he received a flu vaccine. He described waking the next morning
with pain down his left upper extremity and trunk, including scapular pain. He described a severe
ache with intermittent sharp/shooting pain, numbness, and tingling into the hands that felt “like
someone is grabbing my bicep or forearm” and was activity dependent. Id. at 31. He pointed to a
radial distribution for his symptoms. He had hand swelling but denied thermal sensitivity, dermal
color changes, weakness, or allodynia. He had been to the doctor twice and given muscle
relaxers and steroids, but neither helped. Id. He was having trouble getting to sleep and was
waking constantly. He reported trouble reaching up and down, though reaching down was worse
and caused pain, while reaching up sometimes caused tingling. Cervical rotation to the left
caused pain and limited his ability to drive, and it was “hard to keep his neck up.” Id. The
assessment was reduced and painful range of motion and consistent cervical spine hypomobility
and movement impairment syndrome secondary to possible MD-diagnosed cervical
radiculopathy. Id. at 34.
Petitioner returned to his PCP’s office on January 22, 2018, reporting left arm numbness
and pain, shoulder pain, and neck pain. Pet. Ex. 2 at 58. He was receiving PT for more than a
month and noted worsening numbness going down his arm and including his thumb, index, and
middle fingers. He acknowledged that the pain had lessened overall, but the numbness was fairly
persistent, and he noticed numbness developing in his other two left fingers intermittently. He
reported occasional weakness in his left arm. Id. Petitioner was convinced his current symptoms
were caused by improper administration of the flu vaccine, and he still had intermittent injection
site soreness. The last doctor he saw suspected cervical radiculopathy, but petitioner did not
respond to the Medrol Dosepak or muscle relaxers. He also reported pain that could radiate up
his arm from his wrist to elbow to shoulder. Id. He reported that his physical therapist was
confused by his lack of response to treatment and suspected shoulder involvement. He was not
taking any medications and denied tremors or any new joint pain or myalgias. Petitioner was
adamant that he wanted both cervical and shoulder MRIs. Id. He was again examined by and
assessed by a nurse practitioner, who noted no neurological deficits on examination. The
assessment was suspected cervical radiculopathy, with less suspicion for reaction to flu vaccine
administration, and possible shoulder involvement. Myalgia related to Lipitor use was noted as
“less likely” in the differential. It was also noted that palpation of the lower arm triggered
referred numbness to the fingers. An MRI of the cervical spine and left shoulder were ordered,
and bloodwork was done. Id.
The MRI of the cervical spine on January 25, 2018, revealed mild degenerative changes
of the cervical spine with minimal bilateral foraminal stenosis at C3-C4. Pet. Ex. 2 at 53. MRI of
the left shoulder on the same date revealed supraspinatus tendinopathy without evidence of
5

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rotator cuff tear, mild to moderate AC joint arthropathy, biceps tenosynovitis, and slight
increased signal in the superior labrum. Pet. Ex. 2 at 78.
Petitioner presented to Dr. Huffman at Penn Medicine Radnor Orthopedics on February
20, 2018, for left shoulder pain with radiculopathy into his hand status post flu shot in November
2017. Pet. Ex. 6 at 35; see also Pet. Ex 8 at 3.4 In a letter dated February 20, 2018, Dr. Huffman
wrote that petitioner presented for left shoulder pain since he received a flu vaccine on
November 16, 2017. Petitioner reported immediate pain with more severe pain occurring that
evening, and there had been no resolution of his symptoms. Dr. Huffman noted that he attended
PT which helped slightly but then plateaued. He continued to have pain in and around the
shoulder with numbness and tingling down his arm. Pet. Ex. 6 at 38. Dr. Huffman’s examination
revealed positive impingement signs, tightness in the pectoralis minor, tenderness to palpation
over the coracoid process, and tenderness in the latissimus, upper trapezius, and interscalenes.
Petitioner had a positive Wright’s test with secondary thoracic outlet symptoms from his
pectoralis minor tightness and rotator cuff impingement on examination. Id. at 39. An MRI
showed slight fluid in the subacromial space consistent with bursitis, and there was a little bit of
edema in the humeral head. Both were consistent with vaccine-related bursitis or SIRVA-type
injury to the left shoulder. A Kenalog corticosteroid injection was administered. Id. at 39-40.
Petitioner returned to Dr. Huffman on April 3, 2018 for follow-up of his left shoulder.
The problem list included bicipital tendinitis, bursitis, and brachial plexopathy of the left
shoulder. Pet. Ex. 6 at 41. In a letter written following the examination, Dr. Huffman noted that
petitioner had a flu vaccine in his left deltoid on November 16, 2017, that was “placed high. He
had immediate pain, which increased and has not resolved.” Id. at 44. He had a cortisone
injection which petitioner said did not help much and increased his symptoms. He continues to
have pain. Id. On examination, petitioner had tenderness around the bicipital groove, positive
impingement signs, and numbness and tingling distally in his hand in the C6 distribution. He still
had tenderness to palpation along the pectoralis minor. An EMG was ordered, and it was
discussed that petitioner would likely need surgery in the form of biceps tenodesis, debridement,
and decompression due the amount of fluid seen on the MRI in the subacromial space around the
humeral head and along the bicipital groove extra-articularly. Id.
On April 24, 2018, Dr. Huffman wrote that he again saw petitioner, who had persistent
pain around the biceps and AC joint with secondary impingement signs and symptoms. Pet. Ex.
6 at 48. An MRI showed edema in the AC joint and along the bicipital sheath. The plan was to
proceed surgically with arthroscopic debridement and biceps tenodesis and distal clavicle
excision and treatment, with cultures to be taken at the time of surgery. Empirical antibiotics
were prescribed, and a preoperative examination was conducted the same day. Id. at 48-49.
An EMG performed on April 24, 2018 showed carpal tunnel syndrome with no other
abnormalities in the left upper extremity. Pet. Ex. 7 at 9.
4 Petitioner’s Exhibit 8 contains the same orthopedic records as Petitioner’s Exhibit 6.
6

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At an April 26, 2018 visit, petitioner’s PCP documented “hx of an influenza injection
placed incorrectly causing severe left shoulder pain.” He further noted that petitioner was
scheduled for arthroscopic surgery the following month. Pet. Ex. 2 at 11; Pet. Ex. 5 at 1.
On May 16, 2018, petitioner underwent surgery for coracoid impingement, biceps
tendinitis, and bursitis, all of the left shoulder. Pet. Ex. 6 at 56-59; see also Pet. Ex. 8 at 20-23.
The surgical procedure consisted of arthroscopic distal claviculectomy of the left shoulder,
arthroscopy of the left shoulder with decompression of the subacromial and coracoacromial
ligament release, and arthroscopic left shoulder biceps tenodesis. Pet. Ex. 6 at 56-57. Findings
during surgery included an abnormal tendon tear at the biceps anchor with inflammation in the
biceps groove, sub labral foramen in the anterior labrum, inflammation and fraying of the
posterior labrum, an unstable type II tear of the superior labrum, and inflammation of the rotator
interval. Id. at 57-58. There was inflammation and adhesions with thickening present throughout
the bursa, and the AC joint was arthritic. Id. at 58.
Petitioner underwent another MRI of the left shoulder on September 19, 2018, due to
continued shoulder pain and decreased range of motion. Pet. Ex. 2 at 27. The imaging was
compared with the MRI done on January 25, 2018, and revealed interval coracoacromial
decompression with widening of the AC joint and some nonspecific post-surgical edema at the
resection site. Id. at 28. The impression noted that the findings can represent inferior joint
capsulitis with concomitant rotator cuff interval synovitis, and that there was an apparent new
tear with retraction of the biceps tendon, unless there was an interval history of tenodesis not
readily appreciated by imaging. There was also a new partial-thickness articular surface tear of
the distal supraspinatus tendon and increased mild subacromial-subdeltoid bursitis. Id.
On September 26, 2018, petitioner underwent manipulation of the left shoulder under
anesthesia with fixation apparatus, arthrocentesis, and aspiration. Pet. Ex. 6 at 156-58. He
received a Kenalog injection in the left glenohumeral joint. Id. at 158. He was noted to have
persistent post-operative left shoulder stiffness following his May 2018 surgery with failure of
conservative therapy. Id. at 157.
Petitioner presented to his PCP on October 23, 2018 with continued left shoulder pain.
He had a left shoulder arthroscopy and was still doing PT, but he was recovering slowly and was
frustrated. Pet. Ex. 2 at 9. He received a flu vaccine in his right shoulder on this date. Id. at 10.
On April 2, 2019, petitioner’s surgeon Dr. Huffman wrote that petitioner had undergone
surgery with biceps tenodesis, debridement, and decompression due to a left shoulder injury
from a flu vaccine. Dr. Huffman stated that petitioner had reached maximum medical
improvement but still had very minimal residual deficits. Pet. Ex. 2 at 25.
At a visit with his PCP on May 7, 2019, petitioner continued to have shoulder pain that
was slowly improving after arthroscopy. He had some right fourth finger stiffness and “trigger
finger” when he extends the digit. Pet. Ex. 2 at 6.
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B. Affidavit of Petitioner
Petitioner submitted a perfunctory affidavit affirming his receipt of a flu vaccine on
November 16, 2017 in his left shoulder, that he sustained a left shoulder injury caused by that
vaccination, and that he had no prior left shoulder injury. He affirmed that he suffered the
residual effects or complications of that left shoulder injury for more than six months, and he has
not received an award or settlement for his injuries. Pet. Ex. 9.
IV. The Parties’ Arguments
A. Petitioner’s Motion
Petitioner asserted that he has provided evidence to satisfy his burden, establishing that
he suffered a SIRVA caused by the flu vaccine he received on November 16, 2017, and is
therefore entitled to compensation. Petitioner’s Brief (“Pet. Br.”) at 1.
Petitioner submits that he consistently reported the onset of his injury either “right after”
or “ever since” the receipt of his flu vaccine, and described “immediate” pain following
vaccination. Pet. Br. at 8 (citing Pet. Ex. 2 at 59; Pet. Ex. 3 at 4; Pet. Ex. 6 at 38). Therefore,
petitioner has satisfied items (i) and (ii) of the SIRVA QAIs. Id.
In addressing respondent’s contention that petitioner failed to satisfy the SIRVA
requirements (iii) and (iv) due to his complaints of symptoms beyond the shoulder and his carpal
tunnel diagnosis, petitioner argued that neither the cervical spine MRI nor the EMG reflected
cervical pathology or radiculopathy. Pet. Br. at 8 (citing Pet. Ex. 5 at 6-7; Pet Ex. 7 at 9). While
petitioner received treatment for his neck as well as his shoulder, this is not uncommon in
SIRVA cases and there is no other pathology to blame. Further, petitioner’s orthopedist did not
suspect cervical involvement and potential brachial plexopathy was ruled out diagnostically. Id.
Petitioner argued that even though his PCP interpreted his pain as cervical, he was
adamant with the PCP that his pain began in his arm. Further, his carpal tunnel findings “have no
bearing on his SIRVA claim.” Pet. Br. at 8-9. Therefore, petitioner has satisfied the requirements
of (iii) and (iv). Id. at 9
Petitioner argued, in the alternative, that he has also satisfied his burden for a cause-in-
fact claim. Pet. Br. at 9.
Petitioner argued that Prong I is not at issue because petitioner’s claim is for a SIRVA
and the causal theory has been established. Pet. Br. at 9 (citing Tenneson v. Sec’y of Health and
Human Servs., 2018 WL 3083140 at *1 (Fed. Cl. Spec. Mstr. Mar. 30, 2018). Petitioner
explained that his diagnoses including tendinopathy, bursitis, and impingement “fit well within
the SIRVA classification”, which includes injuries to the bursa, ligaments, and tendons of the
shoulder. Pet. Br. at 9; see National Vaccine Injury Compensation Program: Revisions to the
Vaccine Injury Table, 80 Fed. Reg. 45132-01 (2015).
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As to Prong II, even though petitioner’s PCP initially documented concerns with his neck
or cervical spine, his medical records as a whole show that the focus thereafter was on his left
shoulder as the primary problem. Pet. Br. 9. Further, petitioner repeatedly referenced the flu
vaccine as the cause of his shoulder pain, reporting that the vaccine was improperly administered
and that he had pain and soreness after the flu vaccine. Pet. Br. at 10 (citing Pet. Ex. 3 at 4-5; Pet.
Ex. 2 at 59; Pet. Ex. 6 at 38).
Dr. Huffman, petitioner’s orthopedic surgeon, interpreted petitioner’s first MRI as
consistent with SIRVA and “clearly correlated [his] symptoms to his shoulder”, as he
administered several injections into the subacromial space and chose to operate on his left
shoulder twice. Pet. Br. at 10. Petitioner’s PCP also documented that “an influenza injection was
placed incorrectly causing severe left shoulder pain.” Id. (citing Pet. Ex. 2 at 11). Finally,
respondent has not raised any alternative cause for petitioner’s injury. Id.
For Prong III, the Table requires onset within 48 hours of vaccination for SIRVA claims,
which was what petitioner reported. Respondent has not raised any issue with the 48-hour onset.
This satisfies the proximate temporal relationship required for Althen Prong III. Pet. Br. at 11;
see Respondent’s Report at 7, ECF No. 23.
Petitioner concluded that he received the flu vaccination on November 16, 2017, suffered
a SIRVA, and is thus entitled to compensation under the Vaccine Act. Pet. Br. at 11.
B. Respondent’s Response
Respondent argued that petitioner has not satisfied his burden of proof in establishing that
he suffered a left SIRVA caused by the flu vaccine he received on November 16, 2017.
Respondent’s Brief (“Resp. Br.”) at 1. He further argued that petitioner asserted a causation-in-
fact claim, but because SIRVA is an injury defined by administrative rulemaking, petitioner may
not pursue a causation-in-fact SIRVA claim. Resp. Br. at 6 n.2. If petitioner can establish that he
established a specific shoulder injury such as bursitis, adhesive capsulitis, or rotator cuff tear,
then he may pursue a cause-in-fact claim by presenting a medical theory specific to the injury
alleged to be evaluated under Althen. However, petitioner has not provided an expert report or
other sufficiently reliable evidence of causation that satisfies the elements of Althen. Id.
Respondent agreed that petitioner had no prior left shoulder pain, injury, or other left
shoulder issues. Resp. Br. at 1 (citing Pet. Ex. 2 at 58-114; Pet. Ex. 3 at 4-63). However,
respondent argued that petitioner reported symptoms attributable to neurological signs, including
pain and numbness extending into his hand. Resp. Br. at 8 (citing Pet. Ex. 2 at 59). As early as
nineteen days after vaccination, petitioner reported numbness in his first through third fingers
and weakness in his hand. Id. When he presented to PT, he complained of pain exacerbated by
coughing and neck rotation that limited his ability to drive. Petitioner was initially thought to
have symptoms consistent with C6-C7 radiculopathy. Id. (citing Pet. Ex. 4 at 4, 31-35; Pet. Ex. 2
at 59). An EMG revealed carpal tunnel syndrome, “which could explain his hand symptoms and
is a condition unrelated to his vaccine.” Id.
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According to respondent, “[i]n order to demonstrate entitlement to compensation,
petitioner must show that his complaints of symptoms that were outside of his shoulder did not
represent a condition that more likely than not was the cause of the shoulder pain he suffered
following his November 16, 2017 flu vaccination.” Resp. Br. at 8. Respondent argued that on
the current record, petitioner is unable to do so. Therefore, petitioner is not entitled to
compensation. Resp. Br. at 8.
V. Discussion
A. Table SIRVA
1. Petitioner is required to show there is no history of pain, inflammation, or
dysfunction of the affected shoulder.
Respondent does not dispute that petitioner had no prior history of left shoulder pain or
injury.
2. Petitioner is required to show that the pain occurred within the specific
timeframe.
Respondent did not specifically dispute the onset requirement. However, the specific
timeframe on the Vaccine Injury Table for SIRVA is 48 hours post-vaccination. See 42 CFR §
100.3(a). To that end, petitioner reported pain that “occurred out of nowhere right after he
received flu vaccine at pharmacy on 11/16/17”; soreness “ever since” receipt of the flu vaccine;
and “immediate pain” after receiving the flu vaccine. Pet. Ex. 2 at 59; Pet. Ex. 3 at 4; Pet. Ex. 6
at 38. Petitioner has therefore satisfied onset within 48 hours of his receipt of the flu vaccination.
3. Petitioner is required to show that the pain and reduced range of motion are
limited to the shoulder.
Regarding the third SIRVA criterion, SIRVA case law demonstrates that “the gravamen
of this requirement is to guard against compensating claims involving patterns of pain or reduced
range of motion indicative of a contributing etiology beyond the confines of a musculoskeletal injury
to the affected shoulder.” Grossmann v. Secretary of Health & Human Services, 18-13V, 2022 WL
779666, at *15 (Fed. Cl. Spec. Mstr. Feb. 15, 2022) (citing Werning v. Sec'y of Health & Human
Servs., No. 18-0267V, 2020 WL 5051154, at *10 (Fed. Cl. Spec. Mstr. July 27, 2020) (finding that a
petitioner satisfied the third SIRVA QAI criterion where there was a complaint of radiating pain, but
the petitioner was “diagnosed and treated solely for pain and limited range of motion to her right
shoulder.”)). The Chief Special Master has reached the same conclusion on multiple occasions.
E.g., Cross v. Sec’y of Health & Human Servs., No. 19-1958V, 2023 WL 120783, at *7 (Fed. Cl.
Spec. Mstr. Jan. 6, 2023) (finding that “despite the notations of pain extending beyond the
shoulder, Petitioner’s injury is consistent with the definition of SIRVA and there is not
preponderant evidence of another etiology”); K.P. v. Sec’y of Health & Human Servs., No. 19-
65V, 2022 WL 3226776, at *8 (Fed. Cl. Spec. Mstr. May 25, 2022) (holding that “claims
involving musculoskeletal pain primarily occurring in the shoulder are valid under the Table
even if there are additional allegations of pain extending to adjacent parts of the body”).
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Here, the medical records from petitioner’s initial presentations document complaints of
left shoulder and arm pain following receipt of the flu vaccine, along with pain and sensory
symptoms extending from his neck to his hand and fingers. Pet. Ex. 2 at 59; Pet. Ex. 4 at 31, 33-
35. Despite his insistence to the contrary, petitioner’s initial medical records and PT treatment
focused on cervical etiology, including cervicalgia and C6-C7 cervical radiculopathy. Pet. Ex. 2
at 58-59; Pet. Ex. 4 at 33-35, 99-101.
However, petitioner failed to respond to the treatment to his neck or a Medrol Dosepak,
and he reported that his physical therapist was confused as to why he was not responding to
treatment and suspected shoulder involvement. At the insistence of petitioner, an MRI of the left
shoulder was ordered in addition to an MRI of the cervical spine. Pet. Ex. 2 at 58. The cervical
spine MRI performed on January 25, 2018 revealed mild degenerative changes with minimal
bilateral foraminal stenosis at C3-C4, but the MRI of the left shoulder revealed supraspinatus
tendinopathy without evidence of rotator cuff tear, mild to moderate AC joint arthropathy, biceps
tenosynovitis, and slight increased signal in the superior labrum. Id. at 53, 78.
Dr. Huffman noted petitioner’s complaints of left shoulder pain with radiculopathy into
his hand status-post-flu shot in November 2017, and his failed treatment with PT. Pet. Ex. 6 at
35, 38. Following examination and review of the MRIs, Dr. Huffman’s assessment was that the
MRIs were consistent with vaccine-related bursitis or a SIRVA type of injury to the left
shoulder. A corticosteroid injection was administered to the left shoulder. Id. at 39. When the
injection failed to provide relief and petitioner continued to exhibit pain, tenderness at the
bicipital groove and to palpation along the pectoralis minor, positive impingement signs, and
numbness and tingling distally in the hand in the C6 distribution on examination, Dr. Huffman
ordered an EMG. Id. at 41, 44.
The EMG performed on April 24, 2018 revealed carpal tunnel syndrome and ruled out
other abnormalities in the left upper extremity. Pet. Ex. 7 at 9. Petitioner’s PCP now recorded
“hx of an influenza injection placed incorrectly causing severe left shoulder pain.” Pet. Ex. 2 at
11; Pet. Ex. 5 at 1.
Petitioner subsequently underwent two surgical procedures on his left shoulder. Findings
during the first surgery included a tear at the biceps anchor with inflammation in the biceps
groove, sub labral foramen in the anterior labrum, inflammation and fraying of the posterior
labrum, unstable type II tear of the superior labrum, and inflammation of the rotator interval.
There was inflammation and adhesions present throughout the bursa and the AC joint was
arthritic. Pet. Ex. 6 at 48, 54-58.
Petitioner continued to have persistent left shoulder stiffness following his May 2018
surgery. An MRI on September 19, 2018 confirmed adhesive capsulitis, along with post-surgical
edema and other findings requiring manipulation under anesthesia with fixation apparatus,
arthrocentesis, and aspiration and a corticosteroid injection to the left glenohumeral joint. Pet.
Ex. 2 at 27-28; Pet. Ex. 6 at 154-58.
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Petitioner still suffered from left shoulder pain thereafter. Pet. Ex. 2 at 6, 9. By May
2019, he was noted as being at maximum medical improvement but with minimal residual
deficits. Id. at 25.
Despite the medical records initially documenting complaints of pain and sensory issues
associated with his neck, petitioner was subsequently diagnosed with and treated for a left
shoulder injury consistent with the definition of SIRVA. Objective testing, both by MRI and
EMG, ruled out cervical radiculopathy. However, the EMG did confirm carpal tunnel syndrome,
which would explain the pain and sensory symptoms of the hand and fingers. Although the
medical records in this case reflected symptoms beyond the confines of the shoulder, objective
testing and treatment clearly show the shoulder injury. The objective evidence, treating physician
opinion, and medical treatment preponderates in favor of a left shoulder injury. Therefore,
petitioner has satisfied part (iii) of the SIRVA requirements.
4. Petitioner is required to show that no other condition or abnormality is present
that would explain the petitioner’s symptoms.
The fourth criterion requires that “no other condition or abnormality is present that would
explain the patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, brachial
neuritis, mononeuropathies, or any other neuropathy).” 42 CFR § 100.3(c)(10)(iv). This criterion
is satisfied for many of the same reasons discussed in the previous section.
Petitioner’s EMG and MRI ruled out cervical pathology and the MRI confirmed left
shoulder pathology. Pet. Ex. 2 at 27-28; Pet. Ex. 7 at 9. The carpal tunnel finding on EMG
explained petitioner’s complaints of sensory symptoms and pain in his left lower arm, hand, and
fingers. More importantly, objective testing ruled out any neurological findings associated with
his cervical spine, leaving only the pathology found for the left shoulder and biceps as the cause
of his pain and limitations. Petitioner was then treated for a shoulder injury. The carpal tunnel
syndrome was an incidental finding which explained his complaints, but it was not associated
with his left shoulder and bicep and was not part of or addressed during his treatment.
The human body and individual perceptions of pain and symptoms do not necessarily fall
neatly into a precise pattern, and how an individual perceives and articulates their symptoms of
pain and sensation is unique to that individual. Often, those complaints can appear to be
something they are not. Here, while petitioner’s complaints led his nurse practitioner and
physical therapist to suspect C6-C7 radiculopathy, objective testing ruled out any injury or
condition arising from his neck. Dr. Huffman opined that the objective testing and findings
during surgery were consistent with a SIRVA injury, which was what he diagnosed and treated
petitioner for. The requirements of part (iv) for SIRVA are therefore satisfied.
Based on the foregoing, petitioner has satisfied all four of the SIRVA QAI criteria.
Petitioner has demonstrated that his injury meets the Table definition of a SIRVA, and he is
therefore entitled to the Table presumption of vaccine causation.
Having found that petitioner suffered a SIRVA injury and satisfied the SIRVA QAI
criteria, the analysis need not go any further. Petitioner’s carpal tunnel syndrome was an
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incidental finding and explained some of his complaints, but was not associated with his left
SIRVA injury and is therefore not part of his vaccine-related injury.
VI. Conclusion
Based on the record as a whole and for the reasons discussed above, I find there is
preponderant evidence to establish that petitioner is entitled to compensation. Accordingly, this
matter shall proceed to damages.
IT IS SO ORDERED.
s/ Mindy Michaels Roth
Mindy Michaels Roth
Special Master
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