VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-01177
Package ID: USCOURTS-cofc-1_20-vv-01177
Petitioner: Kathleen Stryski
Filed: 2020-09-10
Decided: 2022-11-28
Vaccine: influenza
Vaccination date: 2018-10-18
Condition: chronic pain and a Should Injury Related to Vaccine Administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Kathleen Stryski filed a petition on September 10, 2020, alleging that her seasonal influenza vaccine on October 18, 2018, caused chronic pain and Shoulder Injury Related to Vaccine Administration (SIRVA). She also alleged injury from a second vaccine, Pneumovax-23, given the same day, but this was not covered by the program. The case was initially in a Special Processing Unit but was transferred due to complex factual issues. Respondent filed a report arguing against compensation, and after a status conference, Petitioner was ordered to support her claim. The Chief Special Master dismissed the Table SIRVA claim and ordered Petitioner to file an amended petition for a non-Table claim. However, Petitioner subsequently filed a motion to dismiss her own case, stating she was unable to prove entitlement to compensation and that further proceedings would be unreasonable. She understood this would result in a judgment against her and end her rights in the Vaccine Program, but wished to preserve her right to file a civil action. The court noted that a petitioner must support claims with medical records or a physician's opinion, and Petitioner had not offered expert support for her causation claim. Therefore, the case was dismissed, and judgment was to be entered accordingly.

Theory of causation field:
unclear

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_20-vv-01177-0
Date issued/filed: 2022-11-14
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 10/17/2022) regarding 40 Findings of Fact & Conclusions of Law. Signed by Chief Special Master Brian H. Corcoran. (saj) Service on parties made.
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Case 1:20-vv-01177-UNJ Document 41 Filed 11/14/22 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1177V
(not to be published)
* * * * * * * * * * * * * * * * * * * * * * * * * Chief Special Master Corcoran
KATHLEEN STRYSKI, *
*
Petitioner, * Filed: October 17, 2022
*
v. * Findings of Fact; Onset and Site of
* Vaccination; Flu Vaccine; Pneumovax-23
SECRETARY OF HEALTH AND * Vaccine; Shoulder Injury Related to
HUMAN SERVICES, * Vaccine Administration (SIRVA)
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Andrew Donald Downing, Downing, Allison & Jorgenson, Phoenix, AZ, for Petitioner.
Lauren Kells, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DISMISSING TABLE CLAIM1
On September 10, 2020, Kathleen Stryski filed a petition for compensation under the
National Vaccine Injury Compensation Program (the “Program”).2 ECF No. 1. Petitioner alleged
that her receipt of the seasonal influenza (“flu”) vaccine on October 18, 2018, resulted in chronic
pain and a Should Injury Related to Vaccine Administration (“SIRVA”). Id. She also alleged that
she experienced vaccine-related injuries in both arms due to improper administration of second
vaccine that same day—the Pneumovax-23 (“pneumonia”) vaccine—but has acknowledged that
this vaccine is not covered under the Vaccine Program. See Petitioner’s Reply, dated April 29,
2022 (ECF No. 38) (“Reply”) at 3.
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 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3758, codified as amended at 42 U.S.C. §§ 300aa-10 through 34 (2012) [hereinafter “Vaccine Act” or “the
Act”]. Individual section references hereafter will be to § 300aa of the Act (but will omit that statutory prefix).

Case 1:20-vv-01177-UNJ Document 41 Filed 11/14/22 Page 2 of 11
The matter was originally assigned to the Special Processing Unit (“SPU”), based on the
perceived possibility of settlement given the nature of the claim, but later transferred out of SPU
due to the complicated factual issues presented, such as whether the covered flu vaccine was
administer in the relevant arm, or whether other Table elements had been established.
The parties have now briefed some of those disputed fact issues. Petitioner’s Motion,
dated March 17, 2022 (ECF No. 35) (“Mot.”); Respondent’s Opposition, dated April 15, 2022
(ECF No. 37) (“Opp.”); Petitioner’s Reply, dated April 29, 2022 (ECF No. 38) (“Reply”). Based
upon my review of the record and the parties’ arguments, and for the reasons discussed below, I
find that onset of Petitioner’s SIRVA did not occur within 48 hours of vaccination—requiring
dismissal of the Table claim (regardless of whether Petitioner is correct about the covered
vaccine’s administration situs).
I. Relevant Procedural History
After the matter had been assigned to SPU, the parties engaged in settlement discussions,
but the case was later transferred because it did not appear likely that the factual disputes at issue
could be resolved in the SPU context in a timely manner. ECF No. 29. The matter was then
reassigned to me. ECF No. 33. After Respondent filed his Rule 4(c) Report, I determined that
there was an issue of fact regarding Petitioner’s alleged situs of administration of the flu vaccine,
as well as satisfaction of the 48-hour post-vaccine onset Table requirement. Scheduling Order,
dated January 27, 2022. The parties have since filed briefs in support of a fact finding, and the
matter is now ripe for resolution.
II. Issue
At issue is whether (a) Petitioner received the flu vaccine in the injured right shoulder,
and (b) Petitioner’s first symptom or manifestation of onset after vaccine administration
(specifically pain) occurred within 48 hours, as required by the Vaccine Injury Table and
Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA.
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, and aggravation of petitioner’s injury or
illness that is contained in a medical record. Section 13(b)(1). “Medical records, in general,
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warrant consideration as trustworthy evidence. The records contain information supplied to or
by health professionals to facilitate diagnosis and treatment of medical conditions. With proper
treatment hanging in the balance, accuracy has an extra premium. These records are also
generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health & Hum. Servs.,
993 F.2d 1525, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they should be
afforded substantial weight. Lowrie v. Sec’y of Health & Hum. Servs., No. 03-1585V, 2005 WL
6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule does not always apply.
“Written records which are, themselves, inconsistent, should be accorded less deference than
those which are internally consistent.” Murphy v. Sec’y of Health & Hum. Servs., No. 90-882V,
1991 WL 74931, *4 (Fed. Cl. Spec. Mstr. April 25, 1991), quoted with approval in decision
denying review, 23 Cl. Ct. 726, 733 (1991), aff'd per curiam, 968 F.2d 1226 (Fed.Cir.1992)).
And the Federal Circuit recently “reject[ed] as incorrect the presumption that medical records are
accurate and complete as to all the patient’s physical conditions.” Kirby v. Sec’y of Health &
Hum. Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021).
The United States Court of Federal Claims has outlined four possible explanations for
inconsistencies between contemporaneously created medical records and later testimony: (1) a
person’s failure to recount to the medical professional everything that happened during the
relevant time period; (2) the medical professional’s failure to document everything reported to
her or him; (3) a person’s faulty recollection of the events when presenting testimony; or (4) a
person’s purposeful recounting of symptoms that did not exist. La Londe v. Sec’y of Health &
Hum. Servs., 110 Fed. Cl. 184, 203-04 (2013), aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that is
given later in time that is “consistent, clear, cogent, and compelling.” Camery v. Sec’y of Health
& Hum. Servs., 42 Fed. Cl. 381, 391 (1998) (citing Blutstein v. Sec’y of Health & Hum. Servs.,
No. 90-2808, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the
individual offering such fact testimony must also be determined. Andreu v. Sec’y of Health &
Hum. Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Hum. Servs.,
991 F.2d 1570, 1575 (Fed. Cir. 1993).
A special master may find that the first symptom or manifestation of onset of an injury
occurred “within the time period described in the Vaccine Injury Table even though the
occurrence of such symptom or manifestation was not recorded or was incorrectly recorded as
having occurred outside such period.” Section 13(b)(2). “Such a finding may be made only upon
demonstration by a preponderance of the evidence that the onset [of the injury] . . . did in fact
occur within the time period described in the Vaccine Injury Table.” Id.
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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. Relevant Facts
I make the following findings after a complete review of the record, including all medical
records, affidavits, Respondent’s Rule 4 Report, the parties’ briefs, and any additional evidence
filed:
• Petitioner was seventy-six years old on October 18, 2018, with no previous
shoulder problems, when she received the flu vaccine at issue. Ex. 1 at 1.
• Petitioner explained in her affidavit that she could not lift her arms and had instant
pain after the vaccinations that never dissipated. Ex. 1 at 1; Ex. 12 at 1. She has
stated that “[a]t first, [she] did not know how to report this pain or limited
mobility, and [she] did not know what to do. . . [she] thought it would go away on
its own, so [she] waited.” Ex. 12 at 1. Petitioner’s daughter asserted similarly in
her affidavit that her mother experienced shoulder pain almost immediately
following her vaccinations. Ex. 15 at 1.
• One vaccination record lists all vaccines received by the Petitioner at the Gilbert
Center for Family Medicine in Gilbert, Arizona (the “Gilbert Center”), from
January 2008 to October 2018. See generally Ex. 2 at 2. This document confirms
Petitioner received the two vaccines in question on October 18, 2018, as alleged,
but also contains a handwritten note articulating that Petitioner received the (non-
covered) pneumonia vaccine in her left deltoid, and the flu vaccine in her right
deltoid. Id. The handwritten notations are unsigned and undated.
• A second vaccination record appears to be the product of a subpoena issued in this
case in May 2021 and directed to the Gilbert Center. See generally Ex. 11. It
contains a computer form administration document. While the document also
confirms receipt of two vaccines on October 18, 2018, the document also states
that the two vaccines were administered in the opposite shoulders from what
Exhibit 2 indicates. Id. at 7–9. Also produced in response to the subpoena is a cut-
off list of data about both vaccines, with an indication for the non-covered
pneumococcal vaccine that the relevant record was “modified” on December 26,
2018, although the manner or purpose of modification is not specified. Id. at 8–9.
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• Six weeks post-vaccination, on December 3, 2018, Petitioner sought care with a
primary care provider at the Gilbert Center for complaints of anxiety and fatigue
beginning four months prior (which would be August 2018). Ex. 7 at 49.
Petitioner did not mention any shoulder issues at this visit. Id. at 49–56; Ex. 12 at
1.
• December 19, 2018 (two months post-vaccination), Petitioner returned to the
Gilbert Center for a Medicare preventative exam. Ex. 7 at 39–48; Ex. 12 at 1.
Although it was noted at this time that she was having difficulties with activities
of daily living, no specific complaints of pain in either shoulder were noted in the
record for this visit. Ex. 7 at 46. Specifically, Petitioner underwent a
musculoskeletal exam, containing the detail that a “[v]isual overview of all four
extremities is normal.” Id. The exam further noted that the results were
unremarkable. Id. at 47. Petitioner’s affidavit, however, maintains that she was at
this time having trouble with her shoulders that were in turn interfering with her
normal activities. Ex. 12 at 1. She explained that “[w]eeks later, when it became
clear that the pain and limited mobility were not going away on their own, [she]
began to tell [her] doctors.” Id.
• On March 14, 2019—now nearly five months after receiving the flu vaccine—
Petitioner saw Mark Schlotterback, M.D., a family medicine practitioner, for
musculoskeletal pain in her upper right arm, which she now reported (for the first
time) having begun five months before, after receiving the pneumonia vaccine.
Ex. 7 at 32. She described the pain as moderate to severe, and said that it occurred
both constantly, but also fluctuated. Id. Petitioner specifically stated that she was
“concerned about SIRVA.” Id. Dr. Schlotterback administered a cortisone
injection to Petitioner’s right shoulder bursa. Id. at 36.
• Petitioner returned to Dr. Schlotterback on April 16, 2019, and now reported that
she had bilateral shoulder pain that began six months earlier. Ex. 7 at 24. She
indicated that the cortisone injection previously given in her right shoulder did not
help her pain. Id. The assessment was acute pain of the right shoulder and left
anterior shoulder pain. Id. Another physical exam on May 10, 2019, reported
similar findings. Ex. 4 at 5
• On July 17, 2019, Petitioner saw Keith A. Jarbo, M.D., an orthopedist, for
“thyroid disease bilateral shoulder pain and stiffness after getting vaccinations.”
Ex. 4 at 23. Petitioner reported that seven months earlier, she received a flu
injection in her right shoulder and a pneumonia injection in the left shoulder. Id.
at 24. She complained that while both shoulders had pain that radiated down to
her elbow, her left arm was worse than her right. Id. Dr. Jarbo’s assessment was
bilateral shoulder adhesive capsulitis. Id. at 23, 25. Petitioner received a cortisone
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injection in each shoulder, and was referred to physical therapy (“PT”). Id. at 23;
Ex. 3 at 161.
• Petitioner underwent an initial PT evaluation with Joseph Jalaf, PT, on August 8,
2019, for bilateral adhesive capsulitis. Ex. 3 at 6, 150–51. She reported that her
onset began December 2018,3 when she purportedly received a flu vaccination in
her right arm and a pneumonia vaccination in her left arm. Id. at 151. She stated
that her bilateral arm pain never went away after her vaccinations, and that she
experienced a sudden, significant decrease in strength and range of motion when
reaching overhead or behind her back. Id. An examination revealed limited range
of motion in both shoulders. Ex. 4 at 29. The therapist opined that Petitioner’s
rehabilitation potential was fair to good due to the “idiopathic nature of onset.” Id.
at 30.
• On September 9, 2019, Petitioner presented to the Gilbert Center for
hyperlipidemia, hypertension, hypothyroidism, depression, and headaches. Ex. 7
at 5. The treatment notes indicate that Petitioner’s acute right shoulder pain began
on April 16, 2019, and her right rotator cuff tendinitis began on March 14, 2019.
Id. at 7. Her left anterior shoulder pain was listed as beginning on May 8, 2019.
Id. at 9. Notably, this visit was Petitioner’s first doctor’s appointment following
an automobile accident. Id. at 14. Petitioner reported tension headaches but stated
that her shoulders were unchanged from before the accident; and refused a
prescription muscle relaxant. Id.
• On September 12, 2019, Petitioner had a PT progress evaluation. Ex. 4 at 32–36.
Petitioner’s range of motion improved in both shoulders since her first session,
although it was still reduced. Id. at 34.
• On September 27, 2019, Petitioner saw her orthopedist, Dr. Jarbo, for pain in her
left shoulder. Ex. 4 at 20–22. Petitioner reported that she was previously in a car
accident on September 2, 2019, however, she did not think her shoulder was
affected by the accident. Id. at 20. Dr. Jarbo opined that Petitioner’s adhesive
capsulitis had improved on her right side but was concerned about her left
shoulder rotator cuff tear and ordered an MRI. Id. at 20–22.
• On October 9, 2019, Petitioner had an MRI of her left shoulder, for what was
reported as “[l]eft shoulder pain since [December 18, 2018].” Ex. 4 at 37. The
MRI showed mild to moderate tendinosis of the supraspinatus with limited bursal
fraying and no full-thickness or significant partial thickness cuff tear. Id. at 38. It
also showed small subacromial enthesophyte and low-grade adhesive capsulitis in
the axillary recess with capsular thickening and edema present. Id.
3 Petitioner’s Motion argues that these records reference the onset of pain beginning in October 2018, but most
reference an onset date of December 2018, and even others indicate a later date in 2019. Mot. at 3–4.
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• Petitioner followed-up with Dr. Jarbo on October 16, 2019, complaining of
significant left shoulder joint pain and stiffness after getting her vaccinations. Ex.
4 at 14–15. Petitioner received a cortisone injection in her left shoulder. Id. at 16.
Dr. Jarbo referred Petitioner for twelve PT visits over six weeks, with a diagnosis
of left shoulder adhesive capsulitis. Ex. 3 at 120.
• On October 25, 2019, Petitioner had a PT evaluation. Ex. 4 at 40–44. However,
Petitioner continued to have measurable weakness in her shoulder joint, as well as
shoulder flexion or abduction of less than 120 degrees. Ex. 3 at 109. Following an
additional seven PT appointments, Petitioner’s November 8, 2019 progress note
stated that she was able to lift her arm slightly higher and was getting closer to
doing her hair, but that she was still very limited in her movements and activities
on her left side. Ex. 4 at 46. Her bilateral active range of motion and passive range
of motion had also improved significantly. Id. at 47.
• After the next four PT sessions, Petitioner exhibited improvement in her left
shoulder range of motion, but the therapist noted that she would continue to
benefit from skilled PT to improve shoulder range of motion and strength. Ex. 4 at
53. On November 25, 2019, Petitioner’s insurance carrier denied any further PT
appointments. Ex. 3 at 45. The insurer’s decision stated that Petitioner was not
responding to skilled care and that her daily tasks would get better with practice at
home. Id.
• Since these PT sessions, Petitioner has had other visits with treaters, but for
ailments unrelated to her shoulder pain. Ex. 9 at 12–13; Ex. 10 at 3–21; Ex. 14 at
18, 21.
V. Parties’ Arguments
Ms. Stryski maintains that she received the covered flu vaccine in her right arm, and that
she can otherwise meet the Table elements to prove a SIRVA injury for that arm. Mot. at 6;
Reply at 8–9. In support of the situs contention, she points to a handwritten note in the Gilbert
Center vaccine history record as support for this assertion.4 Mot. at 4; Reply at 2; Ex. 2 at 2. The
subpoenaed record indicates the opposite, but it also references the pneumonia vaccination with a
category titled “modified,” that she maintains was partly cut off, making it difficult to ascertain
what “modified” means in this context. Mot. at 2; Reply at 4–5; Ex. 11 at 7–9. This modification
date was two months post-vaccination. Ex. 11 at 8. Additionally, the flu vaccine print-out record
does not have a modified category, but it appeared that the page is cut off. Id. at 9. Petitioner
4 Ultimately, Petitioner argues that she received vaccine-related injuries in both arms, so she is entitled to
compensation regardless of which arm I determine she was administered the flu vaccination (rendering the issue
almost moot). Reply at 2.
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noted that she was attempting to obtain a complete copy of Ex. 11, but one has yet to be
provided. Mot. at 2. Regardless, she argues that the second record, which is contrary to her
assertion, is likely inaccurate, and greater weight should be afforded to the Gilbert Center
vaccine history document. Reply at 4–5.
Regarding onset, Petitioner stresses that her original and supplemental affidavits (from
herself and her daughter) described immediate pain after vaccination, and in some of her
physical visits, she noted that onset began in October 2018. Mot. at 5; Reply at 5–6. She pointed
out that her December 19, 2018 visit referenced on the review of systems difficulty with
activities of daily living, which she stated in her affidavit was due to shoulder injuries (even
though this shoulder pain was not discussed in the medical record). Reply at 3, 5–6; Ex. 7 at 46;
Ex. 12 at 1. Any inconsistency as to the date of onset beginning in December 2018, or at an even
later time during the spring to summer of 2019, she attributes to an error in the records. Reply at
7–8; Ex. 4 at 24; Ex. 7 at 24, 32.
Respondent, in contrast, argues that Petitioner did not provide sufficient evidence to
support her claim. The flu vaccine was more likely administered in the left arm, as the
subpoenaed record indicates. Opp. at 9, 11–12; Ex. 11 at 7–9. Though the vaccination record had
a modification date some two months post-vaccination, Petitioner had not been able to provide
evidence as to what was actually modified in the record, and thus no reason for doubting it had
been provided. Opp. at 9–10. The handwritten note Petitioner used to support her site of
vaccination was unsigned, so Respondent found it unreliable. Id. at 11. Respondent also
maintained that neither of Petitioner’s sworn affidavits addressed the site of vaccination. Id.; Ex.
1 at 1; Ex. 12 at 1. Petitioner’s comments to her medical providers offered no additional
clarification, as she originally maintained that she had right arm pain due to the pneumonia
vaccine. Opp. at 11; Ex. 7 at 32.
Respondent also argues that Petitioner did not establish that her onset began within 48
hours of vaccination. She did not seek treatment for approximately six weeks after her
vaccinations, and she had two intervening medical visits in December, with no mention of
shoulder pain at either. Opp. at 13. The first discussion of shoulder pain occurred in March of
2019—five months post-vaccination, well past the 48-hour onset. Id. In addition to this delayed
reporting, Petitioner misreported dates of her onset on at least two occasions, stating that it
occurred in December of 2018. Id.; Ex. 4 at 37; Ex. 3 at 159. Respondent found that Petitioner’s
affidavits did not offer compelling evidence to address these issues.
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ANALYSIS
A preliminary issue in dispute is the site of vaccination. Petitioner relies on the
handwritten note on the Gilbert Center immunization history document as supportive evidence.
Ex. 2. Respondent prefers the computer print-out record. Ex. 11 at 7–9. Petitioner maintained
that this second document was less reliable, because the document appears to have been
modified after vaccination, but there was no indication as to what or why the modifications were
made. Reply at 4–5. She acknowledges that, in fact, both Ex. 2 and 11 are modified records
(since the vaccine history record contains the handwritten details) but asserted that the
handwritten record deserves more weight. Id.
Petitioner accurately observed that the computer print-out record includes the suggestion
that it was somehow modified. But it remains uncertain as to what this means. Indeed, it is not
even clear from the overall record when the handwritten note on the Gilbert Center immunization
history record was set down—and hence which of the two competing records has temporal
priority.
Ordinarily, somewhat more weight would be given to a handwritten note over a computer
print-out in evaluating a question of vaccine administration situs (in the absence of proof that the
handwritten note was made in the context of the litigation, e.g. at the request of a party). This is
especially true since in this case, the handwritten note does not contradict anything on the
vaccine history document, but instead provides some detail missing from it. But I need not
resolve this question—for there is a more fundamental issue impeding Petitioner’s Table claim,
and that is the question of proof of onset. I will thus assume for sake of analysis that Petitioner’s
right-side situs allegations are sufficiently substantiated. (This is somewhat consistent with the
first recorded instance in which any shoulder pain is reported, since that relates to the right
shoulder (see, e.g., Ex. 7 at 32)).
Here, Petitioner and her daughter have alleged in their affidavits that Petitioner’s
shoulder pain had an immediate onset after her receipt of the flu vaccine on October 18th.
However, her subsequent medical records were inconsistent with this contention. She had two
visits to the Gilbert Center after vaccination—both in the same month, and within six weeks to
two months of the October vaccination—but did not report any shoulder pain at those visits. Id.
at 49; Ex. 7 at 39–48. Then another three months passed before a third medical visit. It was thus
not until March 14, 2019, that she was “concerned about SIRVA.” Ex. 7 at 32. And this was five
months after the vaccination. Delay in seeking treatment is not per se dispositive on issues of
Table onset, and SIRVA claimants can often reasonably make the case that they misconstrued
the nature or seriousness of their injury. But delay coupled with opportunities to seek
treatment—as this record establishes—is far different.
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The medical record thus demonstrates Petitioner had ample opportunity to complain of
her injury to the very providers who administered the vaccine allegedly causal—but did not. And
this is not a case in which the petitioner has offered persuasive reasons to doubt the record, or
treater witness statements indicating that pain was discussed despite its absence from the
contemporaneous record. Petitioner argues that her second December 2018 visit (two months
post-vaccination) was the first indicator of shoulder pain, as it was noted that she was having
difficulty with activities of daily life, which she has alleged were attributable to that pain. Ex. 7
at 46; Ex. 12 at 1; Reply at 3. But this argument, while not facially unreasonable, has not
sufficiently shown why these complaints would be attributable to shoulder pain for me to
reasonably infer that this visit was actually “about” the pain itself.
Petitioner also inconsistently reported the date of her onset to her treaters. In some
records, Petitioner reports that her pain began after vaccination Ex. 4 at 24; Ex. 7 at 24, 32.
However, in other records she reported that her onset began in December 2018. Ex. 3 at 151,
159; Ex. 4 at 37. On another occasion she noted even later dates between the spring and summer
of 2019. Ex. 7 at 7, 9. In response, Petitioner maintains that records inconsistent with her onset
allegations are simply inaccurate. Thus, her October 19, 2019 MRI contained a summary history,
and she maintains it is unclear where the December 2018 date originated. Reply at 7. She argued
that this could be a typo as it was clear her vaccination date was October 2018. Id. She had a
similar argument as to a PT evaluation, which similarly reported a December 2018 onset date.
She opined that this date was recorded as the first time she sought treatment from her physician.
Id. at 8.
It is well-settled that even though “oral testimony in conflict with contemporaneous
documentary evidence deserves little weight,” that testimony can be credited where it provides
detail that the record omits, or is corroborated with other proof. Kirby, 997 F.3d at 1383
(emphasis added). However, and despite Petitioner’s efforts, she has not provided sufficient
corroborative proof to establish that her statements should receive greater weight than her actual
recorded medical history. The series of medical visits from October 2018 to March 2019 simply
do not, when viewed collectively, suggest preponderantly an onset within the Table timeframe.
The Federal Circuit has stated that “[m]edical records, in general, warrant consideration as
trustworthy evidence . . . [as they] contain information supplied to or by health professionals to
facilitate diagnosis and treatment of medical conditions.” Cucuras, 993 F.2d at 1528 (emphasis
added). Here, greater weight should be accorded this information over Petitioner’s allegations, or
subsequent records.
The standard applied to resolving onset for an alleged Table SIRVA is liberal, and will
often permit a determination in a petitioner’s favor in cases where there is some delay in
treatment, or missed opportunities to report pain promptly. This is especially appropriate in the
absence of contemporaneous and direct statements within the petitioner’s medical records to the
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contrary. However, not every case can be so preponderantly established. Ultimately, the
resolution of such fact issues involves weighing different items of evidence against the overall
record.
Here, Petitioner has not preponderantly established that onset of her pain occurred within
48 hours of vaccination—meaning that she cannot proceed in this action with a Table SIRVA
claim. Petitioner may try to argue, however, a potential causation-in-fact injury claim based on
pain caused by the flu vaccine (although the situs issue may still require resolution in that
context).
CONCLUSION
Petitioner’s Table SIRVA claim is dismissed, for the reasons set forth above. On or before
November 30, 2022, Petitioner may file an amended petition setting forth the basis for a non-
Table, causation-in-fact claim based on an injury attributable to the covered flu vaccine.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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DOCUMENT 2: USCOURTS-cofc-1_20-vv-01177-1
Date issued/filed: 2022-12-23
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 11/28/2022) regarding 43 DECISION of Special Master. Signed by Chief Special Master Brian H. Corcoran. (saj) Service on parties made.
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Case 1:20-vv-01177-UNJ Document 53 Filed 12/23/22 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1177V
(not to be published)
* * * * * * * * * * * * * * * * * * * * * * * * *
*
KATHLEEN STRYSKI, *
* Chief Special Master Corcoran
Petitioner, *
* Dated: November 28, 2022
v. *
*
SECRETARY OF HEALTH AND *
HUMAN SERVICES *
*
Respondent. *
*
* * * * * * * * * * * * * * * * * * * * * * * * *
Andrew Donald Downing, Downing, Allison & Jorgenson, Phoenix, AZ, for Petitioner.
Lauren Kells, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION DISMISSING PETITION1
On September 10, 2020, Kathleen Stryski filed a petition seeking compensation under the
National Vaccine Injury Compensation Program (“Vaccine Program”).2 ECF No. 1. Petitioner
alleged that her receipt of the seasonal influenza (“flu”) vaccine on October 18, 2018, resulted in
chronic pain and a Should Injury Related to Vaccine Administration (“SIRVA”). Id. She also
alleged that she experienced vaccine-related injuries in both arms due to improper administration
of second vaccine that same day—the Pneumovax-23 (“pneumonia”) vaccine—which is not
covered under the Vaccine Program.
1 Although this Decision has been formally designated “not to be published,” it will nevertheless be posted on the
Court of Federal Claims’ website in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). This
means that the Decision will be available to anyone with access to the internet. As provided by 42 U.S.C. § 300aa-
12(d)(4)(B), however, the parties may object to the Decision’s inclusion of certain kinds of confidential information.
Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any
information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged
or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole Decision will be available to the public.
Id.
2 The Vaccine Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755 (codified as amended at 42 U.S.C. §§ 300aa-10–34 (2012)) (hereinafter “Vaccine Act” or “the Act”).
All subsequent references to sections of the Vaccine Act shall be to the pertinent subparagraph of 42 U.S.C. § 300aa.

Case 1:20-vv-01177-UNJ Document 53 Filed 12/23/22 Page 2 of 3
The matter was originally assigned to the Special Processing Unit (“SPU”), based on the
perceived possibility of settlement given the nature of the claim, but later transferred out of SPU
due to the complicated factual issues presented, such as whether the covered flu vaccine was
administer in the relevant arm, or whether other Table elements had been established.
Respondent Rule 4(c) Report was filed on January 21, 2022, arguing that the case was not
appropriate for compensation. See Report, dated Jan. 21, 2022 (ECF No. 34). After a status
conference held on January 27, 2022, Petitioner was ordered to file a motion in support of a fact
finding regarding her ability to meet the Table requirements. See Scheduling Order, dated Jan. 27,
2022. I subsequently dismissed the Table SIRVA claim and ordered Petitioner to file an amended
petition setting forth the basis for a non-Table claim. ECF No. 40.
Petitioner has now filed a motion for a decision dismissing the claim. See Motion, dated
November 22, 2022 (ECF No. 42) (“Motion”). In it, Petitioner maintains that after an investigation
of the facts and science supporting her case, she has determined that she is unable to prove that
she is entitled to compensation in the Vaccine Program, and that to proceed further would be
unreasonable and would waste the resources of the Court, Respondent, and the Vaccine Program.
See Motion at 1. Petitioner also acknowledges in her motion that she understands a decision
dismissing her petition will result in a judgment against her, and that such a judgment will end all
her rights in the Vaccine Program. Id. at 2. And she has expressed a desire to exercise her rights
to file a civil action in the futurepursuant to 42 U.S.C. § 300aa-21(a)(2). Id.
ANALYSIS
The provisions under the Vaccine Rules for ending a case before a decision has been issued
are largely inapplicable herein. Petitioner may no longer avail herself of Vaccine Rule 21(a)(1)(A),
which governs voluntary dismissals before service of the Rule 4(c) Report, and Respondent has
not stipulated to dismissal under Rule 21(a)(1)(B). In addition, even if the parties had so stipulated,
Petitioner seeks entry of a judgment, whereas Vaccine Rule 21(a) would only result in an “order
concluding proceedings.” Rule 21(a)(3).
Accordingly, the only remaining channel for the relief Petitioner’s request is a “motion
seeking dismissal”—a mechanism for ending cases that other claimants have used, either because
the claim appears unlikely to succeed, or simply because the petitioner prefers not to continue with
the claim, but seeks to terminate the action after the time to act under Rule 21 has passed. See, e.g.,
Goldie v. Sec’y of Health & Human Servs., No. 18-1476V, 2019 WL 6045647, at *1 (Fed. Cl Spec.
Mstr. Oct. 11, 2019). Dismissal of Vaccine Program cases at this particular stage of the litigation
is not uncommon. Indeed, the rules of the Court of Federal Claims (which are properly applied
herein) permit dismissal of claims at a petitioner/plaintiff’s request and “on terms that the court
2

Case 1:20-vv-01177-UNJ Document 53 Filed 12/23/22 Page 3 of 3
considers proper.” RCFC 41(a)(2).
Under the Vaccine Act, a petitioner may not receive a Vaccine Program award based solely
on her claims alone. Rather, the petition must be supported by either medical records or by the
opinion of a competent physician. Section 13(a)(1). In this case, there is insufficient evidence in
the record for Petitioner to meet her burden of proof, because Petitioner has not offered expert
support for her causation claim. Therefore, Petitioner’s claim cannot succeed and must be
dismissed. Section 11(c)(1)(A).
Accordingly, I hereby DISMISS Petitioner’s case. In the absence of a motion for review
filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT in
accordance with the terms of this Decision.3
IT IS SO ORDERED.
s/ Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment if (jointly or separately) they file notices
renouncing their right to seek review.
3