VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01044
Package ID: USCOURTS-cofc-1_20-vv-01044
Petitioner: John Tisdel
Filed: 2020-07-03
Decided: 2024-08-05
Vaccine: influenza
Vaccination date: 2017-08-22
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
John Tisdel filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging that he suffered a shoulder injury related to vaccine administration (SIRVA) caused by an influenza vaccine he received on August 22, 2017. He claimed that he experienced weakness, numbness, and pain in his left shoulder and arm starting approximately three months after the vaccination. Respondent argued that Petitioner had not met the severity requirement of the Vaccine Act, that his onset of pain was not within forty-eight hours of vaccination, and that his symptoms were not indicative of SIRVA. The medical records showed no prior history of left shoulder pain. Petitioner first reported symptoms around November 27, 2017, but then had significant gaps in treatment and reporting of shoulder pain, with some later complaints attributed to travel or other factors. A diagnosis of adhesive capsulitis was made on March 1, 2019, and an MRI on July 10, 2019, revealed a tendon tear and arthropathy. The court found that Petitioner failed to establish by a preponderance of the evidence that his injury persisted for the six months required by the Act, noting the inconsistent reporting of the injury's cause and the significant gaps in treatment. Consequently, the court dismissed the claim for failure to meet the severity requirement.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01044-0
Date issued/filed: 2024-08-05
Pages: 6
Docket text: PUBLIC DECISION (Originally filed: 07/03/2024) regarding 38 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (kle) Service on parties made.
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Case 1:20-vv-01044-UNJ Document 39 Filed 08/05/24 Page 1 of 6
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1044V
UNPUBLISHED
JOHN TISDEL, Chief Special Master Corcoran
Petitioner, Filed: July 3, 2024
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Influenza (Flu) Vaccine; Shoulder
HUMAN SERVICES, Injury Related to Vaccine
Administration (SIRVA); Six Month
Respondent. Severity Requirement
John Robert Howie, Howie Law, PC, Dallas, TX, for Petitioner.
Jennifer A. Shah, U.S. Department of Justice, Washington, DC, for Respondent.
ENTITLEMENT DECISION1
On August 19, 2020, John Tisdel 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”) caused by an influenza (“flu”) vaccine administered on August
22, 2017. Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
For the reasons discussed below, I find Petitioner has not established that he
suffered the residual effects of his injury for more than six months, and therefore dismissal
of the claim is warranted.
1 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 (2018).

Case 1:20-vv-01044-UNJ Document 39 Filed 08/05/24 Page 2 of 6
I. Relevant Procedural History
In his Rule 4(c) Report, Respondent argues that Petitioner has not meet the
severity requirement of the Vaccine Act, that onset of Petitioner’s shoulder pain was not
within forty-eight hours of vaccination, and that his symptoms are not indiciative of a
SIRVA. ECF No. 32 at 6-7.
Petitioner thereafter filed a Motion for a Ruling on the Record on March 13, 2023,
arguing that he meets the severity requirement and otherwise has established entitlement
to compensation for a SIRVA Table Injury. Petitioner’s Motion for Ruling on the Record
and Response to Respondent’s Rule 4(c) Report and Brief in Support Thereof (“Mot.”),
ECF No. 34. Respondent opposed the motion on May 12, 2023, reiterating the arguments
set forth in the Rule 4(c) Report. Response to Petitioner’s Motion for Ruling on the Record
(“Opp.”), ECF No. 36, at 3-6. The matter is ripe for resolution.
II. Petitioner’s Medical Records
Petitioner’s past medical history shows no previous injury or complaints of left
shoulder pain.
Petitioner received a flu vaccine in his left shoulder on August 22, 2017. Ex. 13 at
2. Approximately three months later, on November 27, 2017, Petitioner saw his primary
care provider, Dr. Janice McKenney, for an annual wellness visit. Ex. 6 at 59. At that time,
he reported weakness, numbness, and pain with some motions in his left upper arm and
shoulder “since getting the flu shot.” Id. at 62. An examination showed normal strength
and movement without pain, but tenderness in the left shoulder joint. Id. at 63.
Over a month later, on January 3, 2018, Petitioner saw Dr. McKenney for a follow-
up related to hypertension. Ex. 6 at 56. There are no reports of shoulder pain at that time.
Id. at 59. Then, Petitioner saw his chiropractor on January 10, 2018. Ex. 4 at 46. His
complaints included pain and stiffness in his upper thoracic and mid thoracic regions, plus
bilateral burning discomfort in both biceps and shoulders, which he asserted began “after
traveling immediately after he retired in November.” Id. An examination showed reduced
range of motion in both shoulders but no painful movement, and he was diagnosed with
left shoulder pain. Id. at 48. Between January 12 and 23, 2018, Petitioner saw his
chiropractor three times for treatment of this bilateral upper extremity and thoracic pain.
Id. at 40, 42, 44. No reference to the August 2017 vaccination is found in these records.
In addition, between January 23, 2018, and March 1, 2019, Petitioner had multiple
health care appointments, including with his chiropractor and primary care physician. Ex.
2

Case 1:20-vv-01044-UNJ Document 39 Filed 08/05/24 Page 3 of 6
6 at 56, Ex. 4 at 29. No mention of shoulder pain is contained in the records of these visits
either.
The next time Petitioner reported shoulder pain is found in a record from December
12, 2018 – nearly a year after the last records memorializing such complaints. At that
time, Petitioner saw Dr. McKenney, telling her that he had muscle aches in his left
shoulder. Ex. 6 at 54. Petitioner also saw his chiropractor on five occasions between
December 21, 2018 and January 18, 2019. Ex. 4 at 29-37. Only on one occasion (from a
December 21st visit) did he state that his “left shoulder has been a continued issue since
last year when he had an injection from a flu shot” to his chiropractor. Id. at 37.
On March 1, 2019, Petitioner saw primary care nurse Kristi Glanzer for a sore
throat. Ex. 6 at 48. At that time, he also complained of left shoulder pain, stating “got a flu
shot back in 08/2017 has had trouble since then”. Id. at 50. The pain was described as
aching, and intermittent, lasting twenty to thirty minutes several times a day. Id. Petitioner
was diagnosed with adhesive capsulitis of the left shoulder. Id. at 51.
Petitioner next complained of left shoulder pain on May 24, 2019, relating it to a
“flu shot back in 08/2017.” Ex. 6 at 47. An MRI completed on July 10, 2019, found a full-
thickness anterior supraspinatus tendon tear and a hooked, type III acromion and
acromioclavicular arthropathy. Id. at 78.
On July 22, 2019, Petitioner returned to his chiropractor, reporting that he
experienced left shoulder range of motion issues, but no pain, prior to his vaccination. Ex.
4 at 27. Petitioner saw Dr. McKenny several months later, on December 18, 2019, for
hypertension and blood pressure. Ex. 6 at 40. An examination was positive for arthralgias
and joint pain, but negative for left shoulder pathology. Id. at 43-44.
Petitioner broke his ankle in February of 2020, resulting in surgery. Ex. 6 at 31, 20.
At post-surgical appointments, Petitioner did not mention shoulder pain although he was
using crutches. Id. at 12, 16.
Throughout April and May of 2020, Petitioner returned to his chiropractor and
reported that “his shoulder still hurts.” Ex. 4 at 3, 5, 7, 11, 13, 17, 19, 23. On some
occasions, Petitioner’s left shoulder was specifically cited as in pain. Id. at 19, 23.
On May 7, 2020, Petitioner saw his orthopedist for a follow-up on his ankle surgery.
Ex. 10 at 23. He reported he was still experiencing left shoulder pain, and was considering
surgery that fall. Id.
3

Case 1:20-vv-01044-UNJ Document 39 Filed 08/05/24 Page 4 of 6
Petitioner’s affidavit describes his shoulder pain and how it has affected his life.
Ex. 1. Petitioner states that he felt immediate pain after his flu vaccine, and first sought
care on November 27, 2017. Id. at 1. He next sought care on May 24, 2019, but does not
provide any explanation for the gap in treatment. Id. at 2.
III. Fact Findings and Ruling on Entitlement
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). In addition to requirements concerning the vaccination received, the
duration and severity of petitioner’s injury, and the lack of other award or settlement,3 a
petitioner must establish that she suffered an injury meeting the Table criteria, in which
case causation is presumed, or an injury shown to be caused-in-fact by the vaccination
she received. Section 11(c)(1)(C).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B). 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).
3 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
4

Case 1:20-vv-01044-UNJ Document 39 Filed 08/05/24 Page 5 of 6
42 C.F.R. § 100.3(c)(10).
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, the
Federal Circuit has recently “reject[ed] as incorrect the presumption that medical records
are always accurate and complete as to all of the patient’s physical conditions.” Kirby v.
Sec'y of Health & Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). Medical
professionals may not “accurately record everything” that they observe or may “record
only a fraction of all that occurs.” Id.
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 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).
A. Petitioner Does Not Meet the Severity Requirement
At issue is whether Petitioner continued to suffer the residual effects of her SIRVA
for more than six months. Section 11(c)(1)(D)(i) (statutory six-month severity
requirement).
There is no dispute that Petitioner received the flu vaccine on August 22, 2017,
and he therefore must preponderantly demonstrate that his residual symptoms continued
at least through February 22, 2018. See, e.g., Herren v. Sec'y of Health & Human Servs.,
No. 13-100V, 2014 WL 3889070, at *2 (Fed. Cl. Spec. Mstr. July 18, 2014); see also
5

Case 1:20-vv-01044-UNJ Document 39 Filed 08/05/24 Page 6 of 6
Hinnefeld v. Sec'y of Health & Human Servs., No. 11-328V, 2012 WL 1608839, at *4-5
(Fed. Cl. Spec. Mstr. Mar. 30, 2012) (dismissing case where medical history revealed that
petitioner's injury resolved less than two months after onset).
The record establishes that Petitioner’s initial treatment occurred between
November 27, 2017 and January 2018. There are no records even containing reference
to shoulder issues thereafter for nearly a year. And when Petitioner sought treatment in
January 2018, he described bilateral shoulder pain that he attributed to traveling in
November, as opposed to vaccination. Ex. 4 at 48. There are subsequently several gaps
in the record – and although not all meaningfully bear on this analysis, Petitioner does not
provide an explanation as to why he did not seek treatment throughout most of 2018, or
the nine-month period between July 2019 and April 2020. Indeed, he attended medical
appointments during this time, but did not describe any ongoing shoulder pain or range
of motion issues. See Ex. 6 at 43-44 (appointment on December 18, 2019, with reports
of joint pain but no left shoulder pathology).
Given the above, I cannot conclude that the record preponderantly establishes
Petitioner’s injury persisted for the six months required by the Act. Petitioner ceased
treatment (for an injury he did not consistently associate with vaccination) before the six
month “cut off,” and then delayed follow-up for eleven months after, despite due
opportunity to seek care for a chronic and persistent problem. And even once he did again
begin to complain of shoulder pain he thought was vaccine-associated, more gaps
occurred. Such a fact pattern overall preponderates in favor of a finding that any initial
vaccine issues had ended before the severity deadline, and then that intervening factors
are more likely explanatory of Petitioner’s subsequent shoulder complaints.
Conclusion
Because Petitioner has failed to meet the severity requirement set forth in Section
11(c)(1)(D)(i), Petitioner cannot establish entitlement, and therefore I must DISMISS
his claim in its entirety. In the absence of a timely-filed motion for review (see Appendix
B to the Rules of the Court), the Clerk of Court shall enter judgment in accord with this
Decision.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
6