VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00385
Package ID: USCOURTS-cofc-1_21-vv-00385
Petitioner: Derek Blevins
Filed: 2021-01-08
Decided: 2024-03-08
Vaccine: influenza
Vaccination date: 2018-10-20
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Derek Blevins filed a petition alleging a left shoulder injury related to vaccine administration (SIRVA) following an influenza vaccine he received on October 20, 2018. He claimed the injury manifested within two days of vaccination and persisted for more than six months. The respondent argued that Blevins failed to prove the onset occurred within 48 hours and that his symptoms were limited to the vaccinated shoulder. The court found that Blevins did establish onset within 48 hours, with evidence from his affidavit and medical records supporting this timeline. However, the court determined that Blevins did not sufficiently prove his pain and limited range of motion were confined solely to his left shoulder, citing complaints of neck and hand pain, and a history of neck issues. Because the SIRVA Table requires symptoms to be limited to the vaccinated shoulder, his Table claim was dismissed. The case will proceed as a causation-in-fact claim. The court did find that Blevins likely experienced residual effects for at least six months, but this finding is secondary to the dismissal of the Table claim.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00385-0
Date issued/filed: 2024-03-08
Pages: 11
Docket text: PUBLIC DECISION (Originally filed: 01/12/2024) regarding 32 Findings of Fact & Conclusions of Law ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:21-vv-00385-UNJ Document 39 Filed 03/08/24 Page 1 of 11
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0385V
DEREK BLEVINS, Chief Special Master Corcoran
Petitioner, Filed: January 12, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
David John Carney, Green & Schafle LLC, Philadelphia, PA, for Petitioner.
Katherine Carr Esposito, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT AND CONCLUSIONS OF LAW DISMISSING TABLE CLAIM1
On January 8, 2021, Derek Blevins 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 left shoulder injury related to vaccine
administration (“SIRVA”) following an influenza ("flu”) vaccine he received on October 20,
2018. Petition at 1. The case was assigned to the Special Processing Unit of the Office
of Special Masters.
Although I find that Petitioner has more likely than not suffered the residual effects
of his alleged vaccine-related injury for more than six months, Petitioner’s Table SIRVA
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 1:21-vv-00385-UNJ Document 39 Filed 03/08/24 Page 2 of 11
claim must still be dismissed because the evidentiary record does not support the
conclusion that his pain and limited range of motion were limited to the vaccinated
shoulder. This leaves a possibly-meritorious causation-in-fact claim to be adjudicated,
however.
I. Relevant Procedural History
On August 26, 2022, about 17 months after the case was initiated, Respondent
filed a Rule 4(c) Report arguing that Petitioner had not established entitlement to
compensation. ECF No. 27. In particular, Petitioner lacked preponderant evidence that
the onset of his shoulder pain occurred within 48 hours after his flu vaccination, or that
his pain and reduced range of motion were limited to his vaccinated shoulder. Rule 4(c)
Report at 9-10. Respondent also argued that Petitioner cannot establish that he suffered
the residual effects of his injury for more than six months as required by the Vaccine Act.
Rule 4(c) Report at 8.
Thereafter, Petitioner filed a Motion for a Ruling on the Record (“Mot.”) on
November 15, 2022. ECF No. 29. Respondent filed a response (“Resp.”) on January 13,
2023 and Petitioner filed a reply (“Repl.”) on January 25, 2023. ECF No. 30-31.
The matter is now ripe for adjudication.
II. Factual History
Petitioner was vaccinated in his left deltoid on October 20, 2018, in Oceanside,
California. Ex. 1 at 6. (Three years before, in August 2017, he injured his right clavicle,
which required a surgical repair, but had no prior history of injury or dysfunction of his left
shoulder or arm. See Ex. 5 at 149.)
Petitioner recalled that “two days following the vaccination, [he] felt something
uncomfortable and painful around the injection site.” Ex. 2 at ¶10. Petitioner noted that
“by the third day, the pain began to worsen, and spread from [his] shoulder to [his] neck
as well.” Id. Although Petitioner hoped the pain would go away on its own, “by the third or
fourth day after vaccination . . .he believed “it was not just typical vaccination discomfort.”
Id.
Two days after his vaccination, on October 22, 2018, Petitioner was arrested and
had a “chest screen.” Ex. 11 at 201; Ex. 15 at 13. He was released the following day. Ex.
15 at 20.
On November 20, 2018, one month after his vaccination, Petitioner visited the
emergency room for his left shoulder pain. Ex 3 at 6. Petitioner reported that he had a flu
shot a week ago in his left arm and “two days after, developed severe shoulder pain.” Id.
2

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He stated that the pain could be severe “leading to problems using his left hand.” Id. On
exam, Petitioner had full range of motion “without impingement.” Id. at 7. X-rays were
normal. Id. at 21. He was assessed with musculoskeletal left shoulder pain, prescribed
Norco for pain, and advised to follow up with his primary care provider. Id. at 8, 12.
Petitioner returned to the emergency room three months later, on February 24,
2019 at 1:00 a.m. Ex. 5 at 110. He reported pain in his neck, shoulder and scapula for
the previous four months after receiving a flu shot in October. Id. Petitioner stated that he
believed the “the pain had something to do with the flu shot because that was when his
pain began.” Id. at 104. He reported that the previously prescribed pain medication had
provided relief. Id. An EKG and left shoulder x-rays were normal. Id. at 106. Petitioner
was assessed with musculoskeletal pain, prescribed pain medication, advised to follow
up with his primary care physician, and discharged home at 6:17 a.m. Id.
About 12 hours later, at 6:30 p.m. on February 24, 2019, Petitioner returned to the
emergency room in police custody after having been arrested and tased. Ex. 5 at 29. He
was assessed for head and taser injuries in a “focused screening exam” and released.
Id. at 29-30. Petitioner was then incarcerated until March 12, 2019. Ex. 11 at 10. He
reported left shoulder pain while in prison,3 but did not receive treatment while there. See
Id. at 19. Petitioner stated that he had a “battle with homelessness” after his incarceration.
Ex. 2 at ¶15.
Approximately nine months later, on January 3, 2020, Petitioner returned to the
doctor complaining of left shoulder pain for the previous year. Ex. 4 at 12. He reported
mild, aching pain and that “his shoulder gives out on him,” but no decreased mobility. Id.
Petitioner had full range of motion in his left shoulder and an x-ray was negative. Id. at
14, 20. He was prescribed ibuprofen for pain and referred to physical therapy. Id. at 14.
On January 10, 2020, Petitioner had an initial physical therapy evaluation. Ex. 6 at
23. He reported “that a little over a year ago [he] got a flu shot in his L arm and woke up
the next morning with severe neck and shoulder pain with tingling down to his elbow.” Id.
He reported weakness and that his arm “gives out when working out.” Id. He reported that
the tingling in his arm had resolved but that he “feels like the nerves in his pinky are off.”
Id. On exam, Petitioner had normal range of motion, but demonstrated weakness,
particularly with grip strength. Id at 25. The physical therapist recommended further
assessment of Petitioner’s symptoms. Id. Petitioner had a total of eight physical therapy
treatments through February 18, 2020. Id. at 5. At his final session, Petitioner reported
“feeling good.” Id. Although Petitioner’s grip strength had improved, he had no
3 Respondent notes that Petitioner reported that his left shoulder pain was from the taser, although
numerous records, including the emergency room records, indicate that Petitioner was tasered on his back.
See Resp. at 4; Ex. 5 at 29; Ex. 11 at 8.
3

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improvement in left upper extremity strength, and his physical therapist again
recommended further assessment by Petitioner’s physician. Id. at 9.
Approximately ten months later, on December 15, 2020, Petitioner returned to his
doctor for treatment of left shoulder pain for two years which “started after a vaccine.” Ex.
13 at 8-9. He reported “poor results” from his previous physical therapy. Id. On exam,
Petitioner had pain with internal rotation, but normal strength and range of motion. Id. at
9. Petitioner was diagnosed with chronic left thoracic pain, other chronic pain, and chronic
left shoulder pain. Id. The doctor recommended thoracic, cervical, and left shoulder MRIs,
referred Petitioner to physical therapy for his thoracic pain, and referred Petitioner to an
orthopedist for his shoulder. Id.
On December 29, 2020, Petitioner began a second course of physical therapy,
focusing on his back pain. Ex. 12 at 33. He reported 12 years of neck pain and a diagnosis
of neck arthritis, as well as middle back spasms which had since resolved. Id. He rated
his cervical pain as 10/10 at worst. Id. His cervical and left shoulder range of motion were
decreased on exam. Id. at 34. He had five physical therapy treatments prior to discharge
on February 27, 2021. Id. at 26.
A January 4, 2021 MRI of Petitioner’s left shoulder revealed tendinosis of the
subscapularis with low-grade, partial labral tearing and minimal acromioclavicular and
glenohumeral joint osteoarthritis. Ex. 14 at 11.
On January 6, 2021, Petitioner was evaluated by an orthopedist. Ex. 14 at 8. He
reported left shoulder pain “that had been ongoing for several years that coincided shortly
after a flu shot.” Id. Petitioner opted to forego a cortisone injection at the time, but was
referred back to physical therapy and encouraged to follow-up in six weeks. Id. at 9-10.
He returned three weeks later reporting that he “reinjured his shoulder after trying to
suddenly push himself up from his bed.” Id. at 5. He stated that “he immediately felt pain
and was not able to lift his arm.” Id. Petitioner received a cortisone injection and was
referred, again, to physical therapy. Id. at 7.
Petitioner began a third course of physical therapy for his left shoulder on February
3, 2021. Ex. 12 at 22. Petitioner reported that “he had a flu vaccine 2018 and had a pain
after, he lost grip strength the next day.” Id. On exam, Petitioner’s flexion and abduction
were reduced and his strength was diminished. Id. at 23. He attended seven physical
therapy sessions through March 17, 2021, when he was discharged having met both
short- and long-term goals. Id. at 3-5.
Approximately six months later, on September 20, 2021, Petitioner returned to his
orthopedist. Ex. 18 at 4. He reported having a “flu vaccine 3 years ago and subsequent
to this, he had severe pain and ache in the shoulder,” as well as weakness in his hand.
Id. He reported six weeks of relief from the prior steroid injection, but had continued pain
4

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with overhead activities and being unable to weight train. Id. On exam, he had full range
of motion. Id. He was diagnosed with biceps tendinitis with possible tear of the
subscapularis and scheduled for surgery. Id. at 4-5.
Petitioner underwent surgery on October 21, 2021 and continued post-operative
treatment through February 2022. See Ex 19 at 8-9; Ex. 20.
III. Applicable Legal Standards
The Vaccine Act requires that a petitioner demonstrate that “residual effects or
complications” of a vaccine-related injury continued for more than six months. Vaccine
Act § 11(c)(1)(D)(i). A petitioner cannot establish the length or ongoing nature of an injury
merely through self-assertion unsubstantiated by medical records or medical opinion. §
13(a)(1)(A). “[T]he fact that a petitioner has been discharged from medical care does not
necessarily indicate that there are no remaining or residual effects from her alleged
injury.” Morine v. Sec’y of Health & Human Servs., No. 17-1013V, 2019 WL 978825, at
*4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019); see also Herren v. Sec’y of Health & Human
Servs., No. 13-1000V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014).
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 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 & Human 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 & Human Servs., No. 03-
1585V, 2005 WL 6117475, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie, at *19. 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 & Human Servs., 997 F.3d 1378,
1383 (Fed. Cir. 2021).
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The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs., 42 Fed.
Cl. 381, 391 (1998). The Court later outlined four possible explanations for
inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Human Servs., 110 Fed. Cl. 184, 203-04 (2013),
aff’d, 746 F.3d 1335 (Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed.
Cl. at 391 (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL
408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering
such testimony must also be determined. Andreu v. Sec’y of Health & Human Servs., 569
F.3d 1367, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human 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 § 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of
Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (holding that it is within the
special master's discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
IV. Finding of Fact
A. Onset
Respondent maintains that Petitioner has not established Table onset because he
did not report shoulder pain to medical professionals two days after his vaccination, and
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because at his first appointment for shoulder pain he offered inconsistent statements on
onset. Resp. at 10-11. While Respondent raises valid points, he ignores other medical
records that corroborate the onset of Petitioner’s pain likely occurred within 48 hours of
his vaccination.
On October 22, 2018, two days after his vaccination, Petitioner was arrested and
provided limited medical care, including a “chest screen” in connection with his arrest. Ex.
11 at 201. There is nothing in the record to suggest that Petitioner underwent any
comprehensive medical examination or treatment. Further, when Petitioner was arrested
on February 24, 2019, he again underwent a medical examination in connection with his
arrest. See Ex. 5 at 29. He did not mention left shoulder during that examination, although
he had sought treatment from the emergency room for his pain that same day. In fact, the
post-arrest examination was described by the treating physician as “a focused screening”
for the express purpose of determining whether Petitioner may be booked into jail. Id. at
30. Finally, Petitioner stated that during the first two days after vaccination, he had “hoped
it would go away” and only when the pain continued did he seek treatment. Ex. 2 at ¶10.
Petitioner’s belief, two days after his vaccination, that his pain would resolve is a
reasonable explanation for why did not mention is pain during such a limited medical
encounter.
The record of November 20, 2018 (Petitioner’s first treatment for his left shoulder
pain), is admittedly inconsistent in its multiple references to when Petitioner’s pain began.
See Ex. 3 at 5-7. That record states that Petitioner told a nurse that “he had a flu shot
about a week ago,” yet also told a doctor that “he had had left shoulder pain on and off
for over two weeks.” Id. at 5. Petitioner also reported that the pain began “2 days after the
flu shot,” which was not stated or recorded elsewhere. Id. Although the reference to a flu
shot “about a week ago” is incorrect, Petitioner was specific that his pain occurred two
days after vaccination (notwithstanding when the vaccination was). Further, a statement
that he’d had pain “on and off for over two weeks” is not necessarily inconsistent with
Petitioner’s pain beginning within 48 hours of his vaccination a month earlier. Petitioners
are not required to accurately report the exact date of certain things, like onset, in order
to satisfy the onset requirement. Williams v. Sec’y of Health & Human Servs., No. 17-
1046V, 2020 WL 3579763, at *5-6 (Fed. Cl. Spec. Mstr. Apr. 1, 2020).
The lack of precision in this record is also outweighed by other medical records
which specifically corroborate onset occurring within 48 hours of vaccination. For
example, on February 24, 2019, at Petitioner’s second appointment, he reported that he
believed his shoulder pain “had something to do with the flu shot because that was when
his pain began.” Ex. 5 at 104. He again reported close-in-time onset (“the next morning”
after vaccination) at his initial physical therapy evaluation on January 10, 2020. Ex. 6 at
23. And in his affidavit, Petitioner described a “painful” feeling around the injection site
two days after his vaccination. Ex. 2 at ¶10.
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Respondent is correct that every record of Petitioner’s treatment does not precisely
set forth that onset occurred within 48 hours of vaccination, and some records are vague
or slightly inconsistent. However, to satisfy the onset requirement, Petitioner need only
provide a preponderance of evidence, not certainty. Accordingly, as there is support in
the medical records coupled with Petitioner’s affidavit testimony, I find that there is
preponderant evidence to establish the onset of Petitioner’s pain occurred within 48 hours
of vaccination.
B. Symptoms Limited to the Vaccinated Shoulder
Respondent further argues that Petitioner’s symptoms were not limited to the
shoulder in which he received the vaccination. Resp. at 11-12. This argument finds
substantially more support on the filed medical record.
Petitioner’s medical records and affidavit contain repeated complaints of pain
outside his left shoulder. In his affidavit, Petitioner noted that by the third day after
vaccination, he was experiencing pain in his neck as well as his shoulder. Ex. 2 at ¶10.
At his first medical appointment for shoulder pain, Petitioner reported “problems using his
left hand.” Ex. 3 at 6. At his next appointment, Petitioner reported shoulder, neck, and
scapular pain. Ex. 5 at 110. At his first physical therapy evaluation, Petitioner reported
that his “severe neck pain” began the day after vaccination, along with “tingling down to
his elbow and decreased grip strength.” Ex. 6 at 23. When Petitioner sought treatment in
December 2020 (two years after his vaccination), he was diagnosed with chronic cervical
and thoracic pain, and then underwent a course of physical therapy specifically for those
issues. Ex. 13 at 8-9; Ex. 12. Petitioner continued to experience symptoms into his hand
in 2021. Ex. 18 at 4.
While Petitioner acknowledges this evidence, he argues that because his pain
“traveled from his shoulder” and because “there is no other etiology or source of his
shoulder injury,” he has satisfied the SIRVA Table requirement. Id. He relies on Rodgers
v. Sec’y of Health & Human Servs., No. 18-0559V, 2021 WL 4772097 (Fed. Cl. Spec.
Mstr. Sept. 9, 2021) to support his argument that “the QAI language does not prevent a
petitioner from satisfying the SIRVA Table Injury elements if they are pain [sic] in other
areas of the body after the onset of SIRVA pain.” Mot. at 23-24. In that case, however,
the petitioner “consistently reported pain and difficulties with movement which was
confined” to her shoulder, but later complained of “unrelated areas of pain,” specifically
wrist and finger pain that radiated up her arms.” Id. at *8. Unlike the Rodgers petitioner,
Mr. Blevins complained of neck and hand symptoms simultaneously with the onset of his
shoulder pain after vaccination and continuing throughout his treatment. See e.g. Ex. 2
at ¶10 (pain spread to the neck on the third day after vaccination); Ex. 3 at 6 (problems
using his left hand reported in his first appointment after vaccination).
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Further, despite Petitioner’s argument that there was no other etiology or source
of pain, he was diagnosed with chronic pain in both his cervical and thoracic spine, and
reported a long history of neck pain, even predating his vaccination. See Ex. 6 at 23
(tingling down his arm and feeling “like the nerves in his pinky are off”); Ex. 12 at 33 (12
years of neck pain and a diagnosis of neck arthritis, as well as middle back spasms).
These types of extra-shoulder, competing symptoms have previously been held to defeat
a SIRVA Table claim. See, e.g., Rivas v. Sec’y of Health & Human Servs., No. 19-2020V,
2023 WL 7104791, at *4 (Fed. Cl. Spec. Mstr. Sept. 22, 2023).
Because the medical records reveal that Petitioner’s pain and limited range of
motion were not limited to his left shoulder, he cannot establish the third QAI for a Table
SIRVA. Rather, the claim can only proceed as a causation-in-fact claim.
C. Severity
Severity applies to all Program claims, and thus is another matter Petitioner must
satisfy even if the claim proceeds outside the Table. To satisfy the statutory severity
requirement, Petitioner must demonstrate that his symptoms more likely than not
continued until at least April 20, 2019. The record is clear that Petitioner sought treatment
through February 24, 2019 – approximately four months after vaccination, but then did
not seek further treatment until January 3, 2020 – a gap of approximately 11 months.
Respondent argues that the gap in treatment “raises doubt as to whether any alleged
shoulder pain more than eleven months after his last visit is related to the subject
vaccination.”4 Repl. at 9.
At the time of his emergency room visit on February 24, 2019, Petitioner was
assessed with musculoskeletal pain and advised to follow up with his primary care
physician within two days. Ex. 5 at 106. He was prescribed pain medication for his
symptoms. Id. Later that same day, he was arrested and incarcerated through March 12,
2019. Ex. 15 at 28, 35. He reported his left shoulder pain during his incarceration, but
received primarily mental health care, rather than physical health care, during his stay.
Ex. 11 at 7-20. He received ibuprofen for pain. Id. at 11. There is no evidence that
Petitioner’s shoulder pain resolved during his incarceration, or even at this time.
Petitioner also has stated that his “medical treatment and recovery was interrupted
for most of 2019 due to a brief period of incarceration and battle with homelessness,”
without further detail. Ex. 2 at ¶15. Although little is known of Petitioner’s specific housing
4 Respondent also highlights a second gap in treatment, between February 28, 2020 and December 15,
2020. Repl. at 9. But that time frame is not relevant to the severity determination, since it falls outside the
immediate post-vaccination period, and goes more to other issues, like overall severity (which is relevant
to damages more than this essential claim requirement).
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circumstances based on what has been filed into evidence in this case, it can be
ascertained that he was recorded as living in Pomona, CA at the time of his arrest. Ex.
15 at 31. Upon his release, it was noted that he intended to return to his parents’ home in
Oceanside, CA. Ex. 11 at 10. At his next visit on January 3, 2020, Petitioner reported
living with his parents and sought to restart medication for high cholesterol, which he had
stopped a year before. Ex. 13 at 14. While Petitioner could have provided more helpful
detail regarding this time period, the medical records are not inconsistent with his affidavit
testimony, suggesting, at a minimum, a period of time when Petitioner did not have an
independent address. Further, there is no evidence other than the subsequent treatment
gap that Petitioner’s symptoms resolved. Thus, the gap itself is not especially robust
evidence of cessation of his injury prior to the six-month deadline.
Further, when Petitioner resumed treatment, he consistently and regularly
reported that his pain had persisted since his flu vaccination, regardless of his diligence
in treating it, and specifically linked his pain to his vaccination. At his physical therapy
evaluation on January 10, 2020, Petitioner described the onset of his pain with a flu shot
“a little over a year ago,” as well as his current and past symptoms. See Ex. 6 at 23. At
his appointment on December 15, 2020, Petitioner reported that his “pain and weakness
started after a vaccine” and had persisted for two years. Ex. 13 at 8-9. On January 6,
2021, Petitioner reported left shoulder pain “that had been ongoing for several years that
coincided shortly after a flu shot.” Ex. 14 at 8. On September 20, 2021, Petitioner reported
having a “flu vaccine 3 years ago and subsequent to this, he had severe pain and ache
in the shoulder,” as well as weakness in his hand. Ex. 18 at 4. There is no evidence in
the record of another cause of Petitioner’s shoulder pain.
After consideration of the entire record, I find that the evidence preponderates in
Petitioner’s favor on this issue, if weakly. It appears more likely than not that Petitioner
continued to experience symptoms – at least during the gap in treatment between
February 24, 2019 and January 3, 2020 - suggesting that Petitioner had an injury that
never fully resolved, but was not so severe as to cause him to seek more regular or robust
treatment. That issue ultimately goes to the amount of damages awarded – but does not
defeat Petitioner’s entitlement to compensation.
Conclusion
Petitioner has established that he suffered the residual effects of his alleged
vaccine-related injury for at least six months. However, as I also find that Petitioner has
not preponderantly established that his pain and reduced mobility was limited to
vaccinated shoulder, he cannot proceed in this action with a Table SIRVA claim.
Accordingly, Petitioner’s Table SIRVA claim is dismissed. The case will be reassigned to
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a Special Master outside of the Special Processing Unit (“SPU”), for adjudication as a
causation-in-fact claim.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
11