VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_20-vv-02033 Package ID: USCOURTS-cofc-1_20-vv-02033 Petitioner: Thomas Gothers Filed: 2020-12-30 Decided: 2024-04-10 Vaccine: influenza Vaccination date: 2019-10-01 Condition: shoulder injury related to vaccine administration (SIRVA) Outcome: denied Award amount USD: AI-assisted case summary: On December 30, 2020, Thomas Gothers filed a Vaccine Program petition alleging that an influenza vaccination administered in his left arm on October 1, 2019 caused a shoulder injury related to vaccine administration. His theory depended first on proving a Table SIRVA, which required showing that shoulder pain began within forty-eight hours of vaccination. Respondent argued that Mr. Gothers could not prove Table onset. Chief Special Master Brian H. Corcoran reviewed the medical records, affidavits, and briefing and found the onset evidence too weak. Mr. Gothers stated that he felt left shoulder and upper arm pain immediately, and his wife, who had training in intramuscular injections, supported the account. But the medical records showed several intervening medical visits in January and February 2020 for ankle-related care without any left-shoulder complaint. The first treatment record for the left shoulder was March 2, 2020, about 153 days after vaccination. That record described left deltoid pain that started in December 2019, and later orthopedic and physical therapy records continued to connect the pain to the flu shot but did not consistently place onset within forty-eight hours. Mr. Gothers had reduced range of motion and tenderness, was referred for physical therapy and sports medicine, and later received an intra-articular corticosteroid injection. On August 15, 2023, the Chief Special Master dismissed the Table claim and ordered Mr. Gothers to show cause if he wished to pursue a non-Table causation theory. After an unsuccessful jurisdictional motion for review of the interim order, Mr. Gothers reported on February 9, 2024 that he did not see an off-Table claim as viable. The petition was dismissed on April 10, 2024. Chief Judge Matthew H. Solomson later affirmed the dismissal in a public review decision filed September 26, 2024, holding that the Chief Special Master had not abused his discretion in weighing the onset evidence. Theory of causation field: Adult petitioner; influenza vaccine October 1, 2019; alleged left SIRVA. DENIED/DISMISSED. Theory: Table SIRVA required shoulder-pain onset within 48 hours. Evidence against Table onset: no shoulder complaint during January/February 2020 visits; first shoulder treatment March 2, 2020 (153 days post-vaccination) recorded December 2019 onset; later records linked pain to flu shot but did not establish 48-hour onset. Table claim dismissed August 15, 2023; petition dismissed April 10, 2024 after petitioner declined off-Table path; review affirmed September 26, 2024. SM Corcoran; Chief Judge Solomson. Attorney: Timothy J. Mason. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_20-vv-02033-0 Date issued/filed: 2024-04-16 Pages: 8 Docket text: PUBLIC ORDER/RULING (Originally filed: 08/15/2023) regarding 46 Findings of Fact & Conclusions of Law, Order to Show Cause ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-02033-MHS Document 56 Filed 04/16/24 Page 1 of 8 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-2033V THOMAS GOTHERS, Chief Special Master Corcoran Petitioner, Filed: August 15, 2023 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Findings of Fact; Onset; Influenza HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury Related to Vaccine Administration Respondent. (SIRVA) Timothy J. Mason, Law Office of Sylvia Chin-Caplan, LLC, Boston, MA, for Petitioner. Tyler King, U.S. Department of Justice, Washington, DC, for Respondent. FINDINGS OF FACT AND CONCLUSIONS OF LAW1 On December 30, 2020, Thomas Gothers 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”) from an influenza ("flu”) vaccine he received on October 1, 2019. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters (the “SPU”). For the reasons discussed below, I find that Petitioner’s Table SIRVA claim must be dismissed because the evidentiary record does not support the conclusion that the 1 Because this Fact 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 Fact Ruling will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Case 1:20-vv-02033-MHS Document 56 Filed 04/16/24 Page 2 of 8 requisite onset of his pain occurred within 48 hours following administration of the flu vaccine. This leaves a possible causation-in-fact claim to be adjudicated – but the matter will only be transferred if Petitioner can show cause how such a claim might succeed, given the weak onset evidence. I. Relevant Procedural History On October 24, 2022, about 21 months after the case was initiated, Respondent filed a Rule 4(c) Report arguing that Petitioner could not establish that his pain began within 48 hours of his vaccination, primarily because he “had eight contacts with a health professional for various issues . . . yet he never mentioned left shoulder symptoms,” and therefore the claim should be dismissed. ECF No. 48 at 7. On January 20, 2023, Petitioner filed a supplemental affidavit along with his brief on the issue of onset (“Br.”) ECF No. 42-43. On March 1, 2023, Respondent filed a response brief (“Resp.”) and on March 8, 2023, Petitioner filed a reply to Respondent’s response (“Repl.”). ECF No. 44-45. The issue of onset is now ripe for a fact ruling. II. Issue At issue is whether Petitioner’s first symptom or manifestation of onset after vaccine administration (specifically pain) occurred within 48 hours as set forth in the Vaccine Injury Table and Qualifications and Aids to Interpretation (“QAI”) for a Table SIRVA. 42 C.F.R. § 100.3(c)(10)(ii) (required onset for pain listed in the QAI). 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, 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- 2 Case 1:20-vv-02033-MHS Document 56 Filed 04/16/24 Page 3 of 8 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. 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 3 Case 1:20-vv-02033-MHS Document 56 Filed 04/16/24 Page 4 of 8 records or to other evidence, such as oral testimony surrounding the events in question that was given at a later date, provided that such determination is rational). IV. Finding of Fact I make the following findings after a complete review of the record, including all medical records and affidavits, the arguments in Respondent’s Rule 4(c) Report, and the arguments in the parties’ briefs. I find the following points to be particularly relevant: • Petitioner received a flu shot in his left arm on October 1, 2019. Ex. 1 at 33. Petitioner’s medical records reveal prior no injuries to, or medical issues with, his left shoulder or arm. See generally, Ex. 1-2. • Petitioner has averred that he “started feeling pain in [his] left shoulder and upper arm immediately after [his] flu shot.” Ex. 11 at ¶4. • Petitioner’s wife has both education and vocational training in administering intramuscular vaccinations. Ex. 9 at 3. At a previous job, her responsibilities included administering intramuscular vaccinations. Id. • Petitioner’s wife maintains that Petitioner first told her about his left shoulder pain the day after his flu shot in October 2019. Ex. 9 at ¶4-5. She “noticed that the band-aid on his shoulder was higher than [she] would have expected based on her training.” Id. at ¶5. She recalled that Petitioner asked her about his shoulder and that she “suggested that it might take him about three months to get better too if his shot hit a bone.” Id. at ¶7. • Petitioner visited his optometrist several times within a month of the vaccination – on October 18, October 24, October 29, and November 13, 2019. Ex. 1 at 35-47. The records of those visits do not reflect any complaints of left shoulder pain. • Petitioner further represents that his pain continued “throughout that fall” of 2019 and caused problems with activities of daily living (“ADLs”), with his work, and with recreational activities. Ex. 11 at ¶5-6. He attempted to self- treat his shoulder pain with a massage ball and adapting his activities. Id. Petitioner’s wife recalled that he “found some exercises and stretches online that he thought would help” his pain. Ex. 9 at ¶8. • There is a subsequent two-month records gap, with no evidence of further treatment of any kind in 2019. Petitioner presented to his chiropractor on 4 Case 1:20-vv-02033-MHS Document 56 Filed 04/16/24 Page 5 of 8 January 14, January 28, February 6, February 18, and February 27, 2020, however, for treatment on his ankles relating to a May 2019 surgery. Ex. 3 at 8-10. The records of those visits do not reflect any reports of left shoulder pain. • Petitioner first sought medical treatment for his left shoulder pain from his PCP on March 2, 2020 - 153 days, or five months after his vaccination. Ex. 1 at 47. The record notes that he was last seen on 10/01/2019 for an upper respiratory infection and flu vaccine. Id. He now reported left deltoid pain that “started in 12/2019 after receiving the flu shot.” Id. On exam, Petitioner had reduced range of motion and tenderness with palpation. Id. at 50-51. Petitioner was encouraged to be evaluated by physical therapy and sports medicine specialists and to use ice, heat, and over-the-counter medications for pain. Id. at 51. • Petitioner presented to an orthopedist on March 30, 2020. Ex. 5 at 30. Petitioner reported “five months of left shoulder pain” that “began after he got a flu shot in the fall.” Id. Dr. Zilberfarb assessed that Petitioner “most likely has a flu-shot induced left shoulder bursitis.” Id. He administered a cortisone injection and referred Petitioner to physical therapy. Id. • On April 10, 2020, Petitioner presented for an initial physical therapy evaluation. Ex. 2 at 37. He reported left shoulder pain “since Oct 2019 after getting a flu shot.” Id. The physical therapist recorded that Petitioner “thinks it was from flu injection that went into the bursa Oct 5th 2019.” Id. The physical therapist noted that Petitioner had talked to his chiropractor about his pain. Id. Petitioner recalled discussing his shoulder pain with his chiropractor “at some point” and that his chiropractor told him about SIRVA injuries. Ex. 12 at ¶5. • On June 13, 2020, Petitioner returned to his chiropractor for treatment for his left shoulder pain. Ex. 3 at 25. The chiropractor recorded that Petitioner’s pain “gradually began following a seasonal influenza vaccine.” Id. Petitioner was assessed with “frozen shoulder contracture syndrome secondary to a shoulder injury related to vaccine administration (SIRVA) from his recent seasonal influenza vaccine vs. an occult labral tear or calcific tendinitis.” Id. at 26. • Petitioner presented to a sports medicine clinic on August 11, 2020. Ex. 4 at 9. He reported that his left shoulder symptoms began “after receiving a 5 Case 1:20-vv-02033-MHS Document 56 Filed 04/16/24 Page 6 of 8 flu shot on 10/5/2019.” Id. Petitioner received an intra-articular corticosteroid injection. Id. at 10. The length of time between the vaccination at issue and Petitioner’s first report of left shoulder pain to a medical professional is highly problematic. I have previously noted that it is reasonable to expect that an average claimant “might seek medical treatment sooner if in fact the person was experiencing sudden post-vaccination pain.” Pitts v. Sec’y of Health & Human Servs., No. 18-1512V, 2020 WL 2959421, at *5 (Fed. Cl. Spec. Mstr. April 29, 2020). At the same time, however, there are a variety of reasonable explanations for why a claimant might delay treatment – and thus delay does not automatically preclude a Table onset finding. As with all cases, the balance of facts can tip one way or another. Here, it is undisputed that Petitioner waited five months – from October 1, 2019 to March 2, 2020 – before seeking treatment for his left shoulder pain. Ex. 1 at 33, 47. Moreover (and discounting the optometrist visits, since they would not provide an occasion to discuss other bodily issues), Petitioner was also presented with reasonable opportunities in early 2020 to report his shoulder pain, when he visited his chiropractor, but did not. See Ex. 3 at 8-10. Petitioner has attempted to explain this omission, reporting that he “only visited Dr. Puri for one specific issue at a time,” and that the visits in early 2020 were “focused on [his] ankle concerns.” Ex. 12 at ¶4. However, he later recalled “bringing up [his] shoulder pain to Dr. Puri during his treatment of [his] ankle out of pure frustration with [his] symptoms.” Id. at ¶5. Notably, Petitioner also recalled talking to Dr. Puri after he had already seen his PCP for his shoulder pain. Id. Although not dispositive alone, Petitioner’s failure to mention left shoulder pain to his chiropractor, who had treated him for at least three years at that time for both lower back and ankle pain, undermines Petitioner’s statements of immediate and lasting pain that significantly interfered with daily activities. See e.g., Ex. 3 at 23. Mr. Gothers has attempted to explain his delay, and some of his justifications are reasonable. For example, he maintains that he initially believed his pain was normal. Ex. 11 at ¶4. When the pain persisted, he consulted his wife, who had medical education and training. Id. In response, his wife opined that improvement could take “around three months.” Ex. 9 at ¶7. During that time, Petitioner attempted self-care, including adapting his activities, both at work and home, using a massage ball, and doing exercises he found online. Ex. 11 at ¶5-7; Ex. 9 at ¶8. Petitioner’s wife also noted that Petitioner has a “high tolerance for pain” and did not seek medical care in previous situations when he was injured. Ex. 9 at ¶6. Petitioner noted that he finally sought care at his wife’s urging when the pain became unbearable and would “stop [him] in his tracks.” Ex. 11 at ¶8; Ex. 9 at ¶9-10. These kinds of explanations merit some weight, especially when they supplement record omissions, rather than simply contradict outright record statements. See, e.g., Stevens v. Sec'y of Health & Human Servs, No. 90-221, 1990 WL 608693, *3 (Fed. Cl. 6 Case 1:20-vv-02033-MHS Document 56 Filed 04/16/24 Page 7 of 8 Spec. Mstr. 1990) (noting that clear, cogent, and consistent testimony can overcome missing or contradictory medical records). However, another issue with Table onset in this case is the fact that although record evidence establishes that Petitioner consistently attributed his shoulder pain to the October vaccination, those same records also consistently place onset as occurring more than 48 hours after vaccination. For example, when Petitioner first sought treatment for his left shoulder pain from his PCP on March 2, 2020 (Ex. 1 at 47), onset is recorded – in two separate places – as December 2019, or two months after vaccination. Id. at 47, 51. The record of that appointment also states that Petitioner’s last visit was on October 1, 2019 – at which he received a flu shot - suggesting that the provider was aware of the correct date of vaccination during the visit, and thus somewhat bulwarking the conclusion that onset did not likely occur that close-in-time to vaccination. Id. at 47. At Petitioner’s next appointment for shoulder pain, on March 30, 2020, his orthopedist recorded “five months” of shoulder pain, now putting onset around the end of October 2019. Ex. 5 at 30. Then, at his first physical therapy appointment on April 10, 2020, Petitioner reported left shoulder pain “after getting a flu shot” on October 5, 2019. Ex. 2 at 37 (emphasis added). Petitioner reported the October 5, 2019 date again at the sports medicine clinic he visited on August 11, 2020. Ex. 4 at 9. Finally, Petitioner’s chiropractor, who he had seen regularly for his ankle pain, recorded that Petitioner’s pain began “gradually . . . following a seasonal influenza vaccine.” Ex. 3 at 25. Thus, although Petitioner alleges Table onset, no records corroborate it cleanly. Balancing all of the above, I find the evidence preponderantly weighs against a finding of Table onset. The delay itself in seeking treatment is unhelpful but not dispositive, and I give weight to Petitioner’s explanations for why he avoided treatment. However, the lack of clear record support for 48-hour onset, coupled with delay, results in a finding against Petitioner on this matter. My fact determination means that Petitioner’s Table claim must be dismissed. A non-Table claim could be viable – but only outside of SPU. Moreover, because the facts in this case reveal both that Petitioner’s onset was likely longer than a few days post- vaccination, and that his pain, even if immediate thereafter, was not consistent with the severity of a “true” SIRVA (since his delay does suggest he was able to tolerate it), Petitioner must show cause (with citation to other decisions) how he would articulate a causation-in-fact claim based on the present evidence. Only if Petitioner can show he might be able to succeed on a non-SIRVA shoulder injury claim will I allow the claim to be transferred for further development. 7 Case 1:20-vv-02033-MHS Document 56 Filed 04/16/24 Page 8 of 8 Conclusion Because Petitioner has not preponderantly established that the onset of his shoulder pain occurred within 48 hours of vaccination, Table SIRVA claim must be dismissed. If Petitioner wishes to proceed with a non-Table claim, then on or before Friday, September 29, 2023, he shall show cause why such a claim might be viable, articulating his theory of recovery and citing to other Program decisions in which similarly- situated claimants have succeeded. Respondent shall thereafter be given the opportunity to oppose the response to the Order to Show Cause. IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 8 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_20-vv-02033-1 Date issued/filed: 2024-05-15 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 04/10/2024) regarding 55 DECISION of Special Master, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made. -------------------------------------------------------------------------------- Case 1:20-vv-02033-MHS Document 61 Filed 05/15/24 Page 1 of 2 CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-2033V THOMAS GOTHERS, Chief Special Master Corcoran Petitioner, v. Filed: April 10, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Timothy J. Mason, Law Office of Sylvia Chin-Caplan, LLC, Boston, MA, for Petitioner. Tyler King, U.S. Department of Justice, Washington, DC, for Respondent. DECISION DISMISSING PETITION1 On December 30, 2020, Thomas Gothers 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 received an influenza vaccine on October 1, 2019, and thereafter suffered a shoulder injury related to vaccine administration (“SIRVA”) as defined by the Vaccine Injury Table. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On August 15, 2023, I issued Findings of Fact and Conclusions of Law Dismissing Petitioner’s Table Claim. See ECF No. 46. In the Order, I asked Petitioner to show cause 1 Because this Decision 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 Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). Case 1:20-vv-02033-MHS Document 61 Filed 05/15/24 Page 2 of 2 why a causation-in-fact claim, based on the same facts, was also likely non-viable. Id. at 8. On February 9, 2024,3 Petitioner filed a Status Report requesting a decision dismissing his petition. ECF No. 53. Petitioner states that “based on the Findings of Fact and Conclusions of Law regarding injury onset, as they stand now, he does not see an off- Table causation-in-fact claim as a viable path forward.” Id. at 2. To receive compensation under the Program, Petitioner must prove either 1) that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to a covered vaccine, or 2) that he suffered an injury that was actually caused by a covered vaccine. See Sections 13(a)(1)(A) and 11(c)(1). I previously found that Petitioner has not provided preponderant evidence that he suffered a Table Injury. ECF No. 46. In particular, I dismissed the Table claim because the evidence preponderated against a finding of 48-hour onset, with Petitioner obtaining the relevant vaccination on October 1, 2019, but never seeking treatment for shoulder pain until five months post-vaccination (and despite the opportunity at many intervening medical treatment visits to address the issue). ECF No. 46 at 6. And the first instance in which pain was reported identified an onset date of December 2019 – well outside the Table timeframe – with some subsequent records also suggesting a later onset not consistent with the 48-hour requirement. Id. at 7. In dismissing, however, I noted that Petitioner could potentially support a causation-in-fact claim, although he would need to articulate a theory for how a SIRVA- like presentation could occur in longer than the two-day timeframe of the Table. Cite Buyt now, and despite due opportunity, Petitioner has opted not to attempt to demonstrate what a meritorious causation-in-fact claim might be under the circumstances, choosing to request an order of dismissal. ECF No. 53. Respondent agrees that “a final decision is appropriate,” and requested that I dismiss the petition. ECF No. 54. For these reasons, Petitioner’s claim for compensation is denied and this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly.4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 On September 14, 2023, Petitioner filed a Motion for Review, which was subsequently dismissed for jurisdictional reasons on January 16, 2024. See ECF No. 47, 50-52. 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_20-vv-02033-cl-extra-10735318 Date issued/filed: 2024-05-15 Pages: 1 Docket text: Supplementary opinion from CourtListener cluster 10268728 -------------------------------------------------------------------------------- CORRECTED In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-2033V THOMAS GOTHERS, Chief Special Master Corcoran Petitioner, v. Filed: April 10, 2024 SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent. Timothy J. Mason, Law Office of Sylvia Chin-Caplan, LLC, Boston, MA, for Petitioner. Tyler King, U.S. Department of Justice, Washington, DC, for Respondent. DECISION DISMISSING PETITION1 On December 30, 2020, Thomas Gothers 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 received an influenza vaccine on October 1, 2019, and thereafter suffered a shoulder injury related to vaccine administration (“SIRVA”) as defined by the Vaccine Injury Table. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters. On August 15, 2023, I issued Findings of Fact and Conclusions of Law Dismissing Petitioner’s Table Claim. See ECF No. 46. In the Order, I asked Petitioner to show cause 1 Because this Decision 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 Decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that the identified material fits within this definition, I will redact such material from public access. 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2018). why a causation-in-fact claim, based on the same facts, was also likely non-viable. Id. at 8. On February 9, 2024, 3 Petitioner filed a Status Report requesting a decision dismissing his petition. ECF No. 53. Petitioner states that “based on the Findings of Fact and Conclusions of Law regarding injury onset, as they stand now, he does not see an off- Table causation-in-fact claim as a viable path forward.” Id. at 2. To receive compensation under the Program, Petitioner must prove either 1) that he suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding to a covered vaccine, or 2) that he suffered an injury that was actually caused by a covered vaccine. See Sections 13(a)(1)(A) and 11(c)(1). I previously found that Petitioner has not provided preponderant evidence that he suffered a Table Injury. ECF No. 46. In particular, I dismissed the Table claim because the evidence preponderated against a finding of 48-hour onset, with Petitioner obtaining the relevant vaccination on October 1, 2019, but never seeking treatment for shoulder pain until five months post-vaccination (and despite the opportunity at many intervening medical treatment visits to address the issue). ECF No. 46 at 6. And the first instance in which pain was reported identified an onset date of December 2019 – well outside the Table timeframe – with some subsequent records also suggesting a later onset not consistent with the 48-hour requirement. Id. at 7. In dismissing, however, I noted that Petitioner could potentially support a causation-in-fact claim, although he would need to articulate a theory for how a SIRVA- like presentation could occur in longer than the two-day timeframe of the Table. Cite Buyt now, and despite due opportunity, Petitioner has opted not to attempt to demonstrate what a meritorious causation-in-fact claim might be under the circumstances, choosing to request an order of dismissal. ECF No. 53. Respondent agrees that “a final decision is appropriate,” and requested that I dismiss the petition. ECF No. 54. For these reasons, Petitioner’s claim for compensation is denied and this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly. 4 IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master 3 On September 14, 2023, Petitioner filed a Motion for Review, which was subsequently dismissed for jurisdictional reasons on January 16, 2024. See ECF No. 47, 50-52. 4 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review. 2 ================================================================================ DOCUMENT 4: USCOURTS-cofc-1_20-vv-02033-2 Date issued/filed: 2026-01-14 Pages: 7 Docket text: e on parties made.JUDGE VACCINE REPORTED OPINION (PUBLIC VERSION)(Originally filed September 26, 2024) reissuing re: 64 Order on Motion for Review, Judge Vaccine Order/Opinion. Signed by Chief Judge Matthew H. Solomson. (si) Servic -------------------------------------------------------------------------------- Case 1:20-vv-02033-MHS Document 69 Filed 01/14/26 Page 1 of 7 In the United States Court of Federal Claims No. 20-2033V (Filed: September 26, 2024) (Public Filing: January 14, 2026*) ) THOMAS GOTHERS, ) ) Petitioner, ) ) v. ) ) SECRETARY OF HEALTH AND ) HUMAN ERVICES, ) Respondent. ) ) Timothy J. Mason, Law Office of Sylvia Chin-Caplan, LLC, Boston, MA, for Petitioner. J. Travis Williamson, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C. for Respondent. With him on the briefs were Brian M. Boynton, Principal Deputy Assistant Attorney General, C. Salvatore D’Alessio, Director, Heather L. Pearlman, Deputy Director, Gabrielle M. Fielding, Assistant Director. OPINION AND ORDER SOLOMSON, Judge. Petitioner, Thomas Gothers, filed this action pursuant to the National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-1 et seq., alleging that an influenza vaccination caused various injuries, including a shoulder injury related to vaccine administration (“SIRVA”). ECF No. 1. On April 10, 2024, Chief Special Master Brian H. Corcoran denied his petition for vaccine injury compensation. ECF No. 55. The Chief Special Master concluded that the preponderance of evidence weighed against Mr. Gothers’s claim, and, in particular, that his injury did not occur within the requisite 48 hours of vaccine administration, contrary to the Vaccine Injury Table. Id. Mr. Gothers now petitions this Court for review of the Chief Special Master’s decision. For the reasons explained below, this Court affirms that decision. 1 Case 1:20-vv-02033-MHS Document 69 Filed 01/14/26 Page 2 of 7 I. LEGAL AND FACTUAL BACKGROUND1 To receive compensation under the National Vaccine Injury Compensation Program, a petitioner may prove either that he suffered an injury falling within the Vaccine Injury Table (a “table claim” pursuant to 42 U.S.C. § 300aa-11(c)(1)(C)(i)), or that he suffered an injury that was caused by a covered vaccine but first began after the time period required by the table (a “non-table claim” pursuant to 42 U.S.C. § 300aa– 11(c)(1)(C)(ii)(II)). A table claim presumes causation, while a non-table claim requires proof of causation in fact. Gardner-Cook v. Sec’y of Health & Hum. Servs., 59 Fed. Cl. 38, 44 (2003), aff’d, 97 F. App’x 332 (Fed. Cir. 2004) (quoting Grant v. Sec’y of Dep’t of Health & Hum. Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992)). In this case, Mr. Gothers asserted a table claim. See ECF No. 53 at 2; ECF No. 55 at 1. Mr. Gothers received an influenza vaccine in his left arm on October 1, 2019. ECF No. 46 at 4. Prior to receiving the vaccine, Mr. Gothers had no history of injury to his left shoulder. Id. He asserts that he began feeling pain in his left shoulder and upper arm immediately after receiving his flu shot. Id. Mr. Gothers’s wife, who has both educational and vocational training in administering vaccines, maintains that Mr. Gothers first told her about his left shoulder pain the day after his flu shot, and that she noticed then that the band-aid on his shoulder was higher than she would have expected it to be based on her training. Id. Mr. Gothers’s wife suggested that the pain might take about three months to heal. ECF No. 46 at 4. Mr. Gothers claims that his shoulder pain continued throughout the fall of 2019, and that he attempted to self-treat the pain and adapted his habits and activities during that time. Id. Throughout the following months, Mr. Gothers made several visits to his optometrist and a chiropractor (the latter for treatment of ankle pain relating to an earlier surgery). Id. at 4–5. The medical records from those visits do not reflect any reports of left shoulder injury. Id. On March 2, 2020, Mr. Gothers first sought medical treatment for his left shoulder. ECF No. 46 at 5. That visit — as well as subsequent visits to medical professionals — provides conflicting evidence regarding precisely when Mr. Gothers’s shoulder pain began. Id. at 5–6. The record of the first March doctor’s visit notes that Mr. Gothers reported pain that “started in 12/2019 after receiving the flu shot.” Id. at 5. The record * This decision was initially issued under seal on September 26, 2024, in accordance with Rule 18(b) of the Vaccine Rules of the United States Court of Federal Claims, to permit Petitioner time to propose redactions. There are no redactions requested by the parties. Accordingly, this opinion is reissued in full. 1Because the parties do not dispute the relevant facts, but rather only disagree about the conclusions to be drawn from them, the Court’s recitation of the facts here are drawn almost entirely from ECF No. 46 (“Special Master’s Findings of Fact and Conclusions of Law”). 2 Case 1:20-vv-02033-MHS Document 69 Filed 01/14/26 Page 3 of 7 from that visit also notes that Mr. Gothers was last seen on October 1, 2019, for a “flu vaccine.” Id. That evidence clearly supports the conclusion that his pain started well after the 48-hour window of a SIRVA table claim. On March 30, 2020, Mr. Gothers visited an orthopedist and reported “five months of left shoulder pain” that “began after he got the flu shot in the fall.” Id. The records do not reflect a precise date or time frame “in the fall.” On April 10, 2020, Mr. Gothers went for a physical therapy evaluation during which he reported left shoulder pain “since Oct[tober] 2019 after getting a flu shot.” Id. The physical therapist noted that Mr. Gothers thought that the pain was from a flu shot that “went into the bursa Oct[ober] 5[,] 2019.” Id. These records are not inconsistent with Mr. Gothers’s assertion that his pain began immediately after his flu shot. On June 13, 2020, Mr. Gothers’s chiropractor recorded that Mr. Gothers’s pain “gradually began following a seasonal influenza vaccine.” Id. No specific timeframe for pain onset is reflected. On August 11, 2020, Mr. Gothers visited a sports medicine clinic and reported that his pain began “after receiving a flu shot on 10/5/2019.” Id. at 5–6. Again, none of these records expressly contradict Mr. Gothers’s assertion that his shoulder pain began within 48 hours of his flu vaccine, but they are equally consistent with the pain having started after the 48-hour window required for a table case. II. PROCEDURAL HISTORY On December 30, 2020, Mr. Gothers filed a petition in this Court alleging that he “received a seasonal flu vaccine administration on October 1, 2019” and that he subsequently “suffered the onset of [SIRVA] and related conditions.” ECF No. 1 at 2. Mr. Gothers further claimed that the “onset of the Petitioner’s SIRVA occurred within the time frame specified in the Vaccine Injury Table (42 CFR § 100.3) for the seasonal flu vaccine (i.e., less than or equal to 48 hours),” and that “the symptoms, residual effects, and/or sequelae of the Petitioner’s injuries have persisted for more than six (6) months.” Id. The case was assigned to Chief Special Master Corcoran. ECF No. 4. On October 24, 2022, the Secretary of Health and Human Services filed a Rule 4(c) Report disputing that Mr. Gothers had met his burden to prove that his left shoulder symptoms began within the required 48-hour period, and had therefore not established a SIRVA table claim. ECF No. 38 at 9. On August 15, 2023, Chief Special Master Corcoran issued his Findings of Fact and Conclusions of Law, dismissing Mr. Gothers’s SIRVA table claim on the basis that “Petitioner has not preponderantly established that the onset of his shoulder pain occurred within 48 hours of vaccination ….” ECF No. 46 at 8. Chief Special Master Corcoran offered Mr. Gothers the opportunity to proceed with a non-table claim and ordered him to show cause on or before September 29, 2023, as to “why such a claim might be viable, articulating his theory of recovery and citing to other Program decisions in which similarly situated claimants have succeeded.” Id. 3 Case 1:20-vv-02033-MHS Document 69 Filed 01/14/26 Page 4 of 7 On September 14, 2023, Mr. Gothers filed a motion for this Court to review the Chief Special Master’s findings of fact and conclusions of law. ECF No. 47. On October 5, 2023, Respondent filed a motion to dismiss Mr. Gothers’s motion for review. ECF No. 50. On October 19, 2023, Mr. Gothers responded to Respondent’s motion to dismiss. ECF No. 51. On January 16, 2024, this Court granted Respondent’s motion to dismiss, without prejudice, finding that Mr. Gothers’s motion for review was premature. ECF No. 52 at 3. This Court held that “only a decision that resolves whether compensation shall be awarded and that may result in an entry of judgment is subject to review by this Court,” and since “the Chief Special Master did not issue a final decision resolving whether Mr. Gothers is entitled to compensation,” this Court did not have jurisdiction to review what was essentially an interim order of a special master. Id. at 2. The Court explained further that “[o]nce the Chief Special Master issues a final decision on Mr. Gothers’[s] petition for compensation, he may file a motion for review if warranted.” Id. at 3. On January 18, 2024, Chief Special Master Corcoran issued a scheduling order, once again instructing Mr. Gothers to “show cause why his claim is a viable causation- in-fact claim.” Minute Entry, Jan. 18, 2024. On February 9, 2024, in response to the Chief Special Master’s order, Mr. Gothers filed a status report, in which he requested that the Chief Special Master issue a final decision. ECF No. 53. Mr. Gothers explained, for reasons that are unclear to the Court, that “based on the Findings of Fact and Conclusions of Law regarding injury onset, as they stand now, he does not see an off-Table causation- in-fact claim as a viable path forward.” Id. at 2. Based on Mr. Gothers’s request, Chief Special Master Corcoran issued a final decision on April 10, 2024, dismissing Mr. Gothers’s case. ECF No. 55 at 2. On May 10, 2024, Mr. Gothers filed a motion for review, asserting that the Chief Special Master’s “decision was arbitrary and capricious, an abuse of discretion, and not in accordance with law.” ECF No. 57 at 22. That motion is now pending before this Court. III. STANDARD OF REVIEW This Court possesses jurisdiction, pursuant to the Vaccine Act, to review a special master’s decision upon the filing of a petition from either party within thirty days of that decision. 42 U.S.C. § 300aa-12(e)(1). On review, the Court may: (A) uphold the findings of fact and conclusions of law of the special master and sustain the special master’s decision, (B) set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law 4 Case 1:20-vv-02033-MHS Document 69 Filed 01/14/26 Page 5 of 7 and issue its own findings of fact and conclusions of law, or (C) remand the petition to the special master for further action in accordance with the court’s direction. 42 U.S.C. § 300aa-12(e)(2). “Under the Vaccine Act, the Court of Federal Claims reviews the Special Master’s decision to determine if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.’” Markovich v. Sec’y of Health & Hum. Servs., 477 F.3d 1353, 1355–56 (Fed. Cir. 2007). “‘Arbitrary and capricious’ is a highly deferential standard of review: ‘[i]f the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate.’” Rodriguez v. Sec’y of Health & Hum. Servs., 632 F.3d 1381, 1384 (Fed. Cir. 2011) (citing Hines v. Sec’y of Health & Hum. Servs., 940 F.2d 1518, 1528 (Fed. Cir. 1991)). A special master’s statement or interpretation of law is reviewed de novo. Id. (citing Markovich, 477 F.3d at 1356). While a special master’s decision “is entitled to deference,” Morse v. Sec’y of Health & Hum. Servs., 93 Fed. Cl. 780, 783 (2010), this Court will find that a special master has abused his discretion if his decision: “(1) is clearly unreasonable, arbitrary, or fanciful; (2) is based on an erroneous conclusion of law; (3) rests on clearly erroneous fact findings; or (4) follows from a record that contains no evidence on which the [special master] could rationally base [his] decision.” Wirtshafter v. Sec’y of Health & Hum. Servs., 155 Fed. Cl. 665, 671 (2021) (quoting Ninestar Tech. Co. v. Int’l Trade Comm’n, 667 F.3d 1373, 1379 (Fed. Cir. 2012)).2 Our appellate court, the United States Court of Appeals for the Federal Circuit, has thus explained that “the statute contemplates that fact finding will be done by the special master.” Munn v. Sec’y of Dep’t of Health & Hum. Servs., 970 F.2d 863, 870 (Fed. Cir. 1992). Indeed, Congress tasked the special masters with the “unenviable job of sorting through these painful cases and, based upon their accumulated expertise in the field, judging the merits of the individual claims.” Hodges v. Sec’y of Dep’t of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993). IV. DISCUSSION At the heart of this dispute is a simple question of fact: did the pain that Mr. Gothers experienced begin within 48 hours of his having received the influenza 2 See also Spahn v. Sec’y of Health & Hum. Servs., 138 Fed. Cl. 252, 257 (2018) (“This Court will find an abuse of discretion only where the special master’s decision is clearly unreasonable, based upon an erroneous conclusion of law, rests on erroneous fact finding, or based on a record without evidence to support the special master’s decision.”). 5 Case 1:20-vv-02033-MHS Document 69 Filed 01/14/26 Page 6 of 7 vaccine, or did the pain begin later? If it began within 48 hours, then the Vaccine Injury Table requirements have been satisfied, and Mr. Gothers is entitled to compensation. See 42 C.F.R. § 100.3(a)(XIV)(B). If the pain first occurred after the 48-hour period, then the table claim must be denied. The Chief Special Master concluded that the evidence did not support Mr. Gothers’s table claim. The evidence is mixed and thus this Court cannot conclude that the Chief Special Master’s decision is arbitrary, capricious, unsupported by substantial evidence, or otherwise contrary to law. Records from Mr. Gothers’s various visits to medical professionals provide various date ranges and windows during which the onset of pain occurred, while the assertions of Mr. Gothers and his wife in the proceedings before the Chief Special Master put the onset of pain specifically within 48 hours of Mr. Gothers’s vaccine. ECF No. 46 at 4–5. Other than their testimony here, however, there is no decisive evidence supporting Mr. Gothers’s claim while there is some evidence that undermines it. Had the task of fact-finding and the weighing of the evidence been delegated to this Court in the first instance — as opposed to the special master — this Court may well have found Mr. Gothers’s and his wife’s assertions sufficient. Indeed, viewed in isolation, this Court believes that Petitioner’s neglecting to mention his shoulder pain during a visit to an optometrist is irrelevant. See ECF No. 46 at 4. Similarly, the Court is inclined to agree with Mr. Gothers that his failure to mention shoulder pain during repeated visits to a chiropractor for treatment of an ankle injury are of little import. ECF No. 57 at 16. In both cases, the purpose of the medical visits was unrelated to his shoulder. Moreover, the fact that Mr. Gothers waited five months to seek professional treatment of his shoulder pain may suggest that the pain began after the 48-hour window, ECF No. 46 at 6, but the Court can easily envision reasonable explanations for why a patient may delay seeking treatment (e.g., because he believed the pain was normal or because the pain was not severe). But those facts do not help Mr. Gothers either. They do not definitively support Mr. Gothers’s claim in a way that somehow requires the Chief Special Master to find in Mr. Gothers’s favor. Even the somewhat helpful facts cannot be viewed in isolation. In that regard, the Chief Special Master reasonably relied not only upon the length of time between Mr. Gothers’s vaccination and his first report of pain to medical professionals, but also upon the conflicting dates of the onset of pain within the various medical reports, a few of which expressly place the onset of pain as occurring after the 48-hour window. ECF No. 46 at 6–7. This constitutes substantial evidence; again, the record must be viewed as a whole. See Shapiro v. Sec’y of Health & Hum. Servs., 101 Fed. Cl. 532, 540 (2011) (“To be sure, a finder of fact generally is not required to itemize every piece of evidence on an issue and adopt or reject it.… [C]onsistent with the duties imposed by the Vaccine Act, the task of a Special Master is to ‘consider [ ] the relevant evidence in the record as a whole, draw[ ] plausible inferences and articulate[ ] a basis for his decision which is rational.’” (emphasis added) (quoting Hines, 940 F.2d at 1525)). The Court notes once again that the special master, and not this Court, is tasked 6 Case 1:20-vv-02033-MHS Document 69 Filed 01/14/26 Page 7 of 7 by Congress to be the fact finder in the first instance. See Munn, 970 F.2d at 870. In this case, the Chief Special Master, after considering and weighing all of the evidence, concluded that it “preponderantly weighs against a finding of Table onset.” ECF No. 46 at 7. That is a factual conclusion — one which this Court cannot characterize as “arbitrary and capricious” or lacking in substantial evidentiary support. Hines, 940 F.2d at 1528; see also Doe v. Sec’y of Health & Hum. Servs., 601 F.3d 1349, 1355 (Fed. Cir. 2010) (“[Petitioner] is correct that not all of the evidence in the record supports the special master’s findings. That, however, is not the question. On appeal, we must determine whether the special master’s findings of fact are supported by substantial evidence.”); cf. Duvall v. United States, 647 F.2d 131, 134 (Ct. Cl. 1981) (“In exercising this substantial evidence review, the court’s role is not to hear the case de novo, but to review the administrative record and determine whether there is substantial evidence on the record as a whole to support the findings of the board.”). Because the Chief Special Master considered all of the “relevant evidence” and drew a “plausible inference” with a “rational basis,” his decision is entitled to deference. Hines, 940 F.2d at 1528 (“If the special master has considered the relevant evidence of record, drawn plausible inferences and articulated a rational basis for the decision, reversible error will be extremely difficult to demonstrate.”). V. CONCLUSION For all of the above reasons, this Court finds that Chief Special Master Corcoran’s decision was not arbitrary, capricious, or otherwise contrary to law. Accordingly, this Court AFFIRMS Chief Special Master Corcoran’s decision. The Clerk shall enter JUDGMENT for the government, dismissing this case. IT IS SO ORDERED. s/Matthew H. Solomson Matthew H. Solomson Judge 7