VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00425
Package ID: USCOURTS-cofc-1_21-vv-00425
Petitioner: Sara McCarthy
Filed: 2023-11-29
Decided: 2024-01-03
Vaccine: influenza
Vaccination date: 2019-12-30
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Sara McCarthy filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a left shoulder injury related to vaccine administration (SIRVA) after receiving an influenza vaccine on December 30, 2019. The case was assigned to the Special Processing Unit. The respondent argued that the petitioner could not demonstrate that her symptoms occurred within 48 hours of vaccination, a requirement for a Table SIRVA claim. The petitioner provided affidavit testimony from herself, her daughter, her husband, and a colleague, suggesting that her pain began immediately or very soon after the vaccination. However, the medical records indicated a significant treatment gap, with the first visit for shoulder pain occurring nearly eight months after vaccination. At that visit, the petitioner reported pain onset in February 2020, over a month after the vaccination. A subsequent occupational therapy evaluation noted onset in January 2020, but did not specify a date within the 48-hour window. The court found that the affidavit testimony was not corroborated by independent evidence and was inconsistent with the majority of the medical records. While the court acknowledged that the COVID-19 pandemic may have complicated the petitioner's ability to seek timely medical attention, it was not convinced that this fully explained the delay or the lack of alternative care options. Ultimately, the court determined that the petitioner failed to establish by a preponderance of the evidence that the onset of her shoulder pain occurred within 48 hours of vaccination. Therefore, her Table SIRVA claim was dismissed for insufficient evidence, and an off-Table claim was also deemed not viable due to similar onset deficiencies and lack of expert support.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00425-0
Date issued/filed: 2024-01-03
Pages: 12
Docket text: PUBLIC DECISION (Originally filed: 11/29/2023) regarding 39 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:21-vv-00425-UNJ Document 42 Filed 01/03/24 Page 1 of 12
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0425V
SARA MCCARTHY, Chief Special Master Corcoran
Petitioner, Filed: November 29, 2023
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Brynna Gang, Kraus Law Group, LLC, Chicago, IL, for Petitioner.
Mitchell Jones, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On January 8, 2021, Sara McCarthy 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 she suffered a left shoulder injury related to vaccine
administration (“SIRVA”), as set forth in the Vaccine Injury Table, after receiving an
influenza (“flu”) vaccine on December 30, 2019. Petition at 1. The case was assigned to
the Special Processing Unit of the Office of Special Masters.
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 1:21-vv-00425-UNJ Document 42 Filed 01/03/24 Page 2 of 12
For the reasons discussed below, I find that Petitioner has not established by a
preponderance of the evidence that the onset of her shoulder injury occurred within 48
hours of vaccine administration, as required for a Table SIRVA claim, and therefore the
claim is appropriately dismissed.
I. Relevant Procedural History
Well after the case’s filing and activation, Respondent filed his Rule 4(c) Report in
June 2022, asserting that this case was not appropriate for compensation because
Petitioner could not demonstrate that the onset of her symptoms occurred within 48 hours
following vaccination, as required to prevail on a Table SIRVA claim (ECF No. 27).
Although the Petition did not assert a causation in fact claim, Respondent also argued
that such a claim could similarly not succeed. Id.
Following a status conference, Petitioner was afforded the opportunity to file
additional evidence in support of her claim (ECF No. 28). Petitioner thereafter filed
additional medical records and affidavits (ECF Nos. 29, 32-33). On March 14, 2023,
however, I determined that it did not appear that the record would support a finding that
the onset of Petitioner’s shoulder pain occurred within 48 hours of vaccine administration,
and therefore directed Petitioner to show cause why the Petition should not be dismissed
(ECF No. 34). I added that to prevail on a causation-in-fact version of the claim, Petitioner
would need to file an amended petition, and otherwise establish that she could meet the
elements set forth in Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278
(Fed. Cir. 2005). On May 15, 2023, Petitioner filed a response to the show cause order
(ECF No. 38). Petitioner did not, however, file an amended petition or seek additional time
to do so.
II. Legal Standards
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 & Human Servs.,
993 F.2d 1525, 1528 (Fed. Cir. 1993).
2

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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. “Written records which are, themselves, inconsistent, should be
accorded less deference than those which are internally consistent.” Murphy v. Sec’y of
Health & Human 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 & Human 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 & 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 v. Sec’y
of Health & Human Servs., 42 Fed. Cl. 381, 391 (1998) (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 fact 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 Section 12(d)(3); Vaccine Rule 8); see also Burns v.
3

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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).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within
48 hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation
(“QAI”) are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
4

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III. Relevant Factual History
a. Medical Records
On December 30, 2019, Petitioner received a flu vaccine in her left arm. Ex. 12 at
1. Although the vaccine administration form was signed by Petitioner on January 7, 2019
(and hence nearly a year prior to vaccination), there is handwriting at the bottom of the
form with the date “12-30-19” and listing the vaccine manufacturer and lot number, a situs
of left arm, and the name of the administrator.3 Id. The parties otherwise agree that the
vaccine was administered on December 30, 2019, and I find that this is more likely than
not the correct vaccination date.
There is a subsequent substantial treatment gap – with the next relevant record
from August 26, 2020, when Petitioner first sought care for left shoulder pain. Ex. 8 at 17.
She saw at that time orthopedic physician assistant (“PA”) Joseph Perry, and complained
of “LEFT shoulder pain since February 2020. Patient denies any specific antecedent
trauma.” Id. at 18 (emphasis added). She had difficulty with sleeping, lifting, and overhead
use, and her symptoms were relieved by Aleve and rest. Id. She reported a pain level
ranging from three to seven out of ten. Id. On examination, her left shoulder range of
motion was 120 degrees in forward flexion, 90 degrees in abduction, and 40 degrees in
external rotation. Id. at 20. She had tenderness at the bicipital groove and
acromioclavicular joint, and positive signs on Hawkins, cross body, and impingement
tests. Id. Her right shoulder examination was within normal limits. Id. She was assessed
with left shoulder impingement, biceps tendinitis, and a partial-thickness rotator cuff tear.
Id. at 20-21. PA Perry ordered an MRI. Id. at 21.
Four days later (August 30, 2020), an MRI showed a full thickness tear of the
supraspinatus tendon, moderate partial surface tearing of the subscapularis tendon, a
low grade partial tear of the infraspinatus tendon, moderate partial tear of the biceps
tendon, and acromioclavicular joint arthrosis narrowing the subacromial space. Ex. 2 at
4-5.
On September 2, 2020, Petitioner returned to PA Perry to follow up and review the
MRI results. Ex. 8 at 12-13. The “HPI,” or history of present illness, section of the record
is identical to that of the August 26th record, again stating that she reported “LEFT
3 Petitioner filed additional vaccination records as Exhibit 19, but these records shed little light on the 2019
vaccination. These additional records include a flu vaccine record dated January 7, 2019 at the “Viera VA
Clinic,” but the portions of the record for the manufacturer and lot number of the vaccine and the name of
the administrator are blank. Ex. 19 at 1-2. This record was created on March 19, 2022, and changed on
July 8, 2022. Id. at 2. The records of Petitioner’s 2020 and 2021 flu vaccines, by contrast, have additional
details such as the lot number of the vaccine and the route and situs of vaccine administration. Id. at 3-6.
Petitioner also filed emails between her and another VA employee relating to the vaccination date and
record, which somewhat support the date Petitioner states she received the flu vaccine. See Ex. 20 at
1(“[t]he appendix B states you received the shot on 12/30/19”).
5

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shoulder pain since February 2020.” Id. at 13. Because she had a full thickness rotator
cuff tear for over six months, he recommended left shoulder arthroscopic repair followed
by physical therapy. Id. at 15.
Four weeks later (September 30, 2020), Petitioner saw orthopedist Dr. Richard
Harrison, who works in the same office as PA Perry, for a surgical consult. Ex. 8 at 6. She
had persistent discomfort of her shoulder, which she rated as six to eight out of ten. Id. at
7. This record has an onset date of August 26, 2020 for impingement syndrome of left
shoulder and non-traumatic partial tear of left rotator cuff, and an onset date of September
30, 2020 for left bicipital tenosynovitis.4 Id. It does not state what caused the pain. Id. The
pain was worse with overhead activity and lifting. Id. Petitioner elected to proceed with
surgery. Id. at 10.
On February 4, 2021, Dr. Harrison performed surgery on Petitioner’s left shoulder.
Ex. 14 at 28. On February 5, 2021, Petitioner attended a post-operative occupational
therapy (“OT”) evaluation. Ex. 13 at 3. She reported that she “started having shoulder
pain January 2020.” Id. At this time, her range of motion began to decrease, and she was
unable to flex her biceps tendon. Id. She put off seeing a doctor due to the Covid-19
pandemic. Id. She reported a pain level of four out of ten, ranging to five out of ten at
worst. Id. Her left shoulder passive range of motion was 60 degrees in flexion and 45
degrees in abduction. Id. at 4. Thereafter, Petitioner continued post-operative OT until
June 2021, and continued to follow up with PA Perry. Exs. 13, 14.
b. Affidavit Evidence
Petitioner has filed five affidavits in support of her claim. Exs. 9, 10, 11, 16, 18.
She states that she received a flu shot in her left shoulder on December 30, 2019, at a
Veterans Administration clinic, where she works as a nurse manager. Ex. 9 at ¶ 3. She
noticed that the administrator “placed the needle a bit higher than usual.” Ex. 18 at ¶ 6.
Her left arm was “immediately very sore after vaccination.” Id. at ¶ 7. She spoke with her
daughter Jamie right after the vaccination and told her that her arm was already really
sore. Id. She expected the pain to ease in the next few days. Id. at ¶ 8. Instead, within a
week, the pain “was so bad that I realized I was struggling to move my arm though normal
range of motion.” Id. at ¶ 9. Over the next several weeks, her left shoulder “became more
and more painful to where it was disrupting my life” and she had difficulty sleeping due to
pain. Ex. 9 at ¶ 7. Petitioner also recalled telling a friend and colleague, Angela Malerk,
4 The record also includes the same language as the prior two records stating that Petitioner reporting
shoulder pain since February 2020, but it is marked as “Previous HPI,” indicating it is copied from a prior
record. Ex. 8 at 7.
6

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about the shoulder pain at lunch in “early January 2020,” and discussing it with her
husband “in January 2020.” Ex. 18 at ¶¶ 10, 11.
When her shoulder pain failed to improve, in late January or early February 2020
she spoke with a PA who works in an orthopedic clinic at her workplace. Exs. 9. at ¶ 8;
18 at ¶ 12. After a quick examination, he thought she might be developing shoulder
impingement or bursitis and gave her a book of exercises to do at home. Id. Petitioner
states that the document filed as Exhibit 175 is “the same materials that [the PA] gave me
for my shoulder after I stopped him in the hallway in early 2020.” Ex. 18 at ¶ 13. Because
she was not a patient of his clinic, however, no medical record of their conversation was
made. Ex. 9 at ¶ 9.
Over the next several weeks, Petitioner performed the exercises her colleague had
instructed her about, but without improvement. Exs. 9 at ¶ 10; 18 at ¶ 14. By late February
or early March 2020, she decided she needed to see a doctor about her left shoulder
pain. Ex. 9 at ¶ 11. However, this coincided with stay-at-home orders and the closure of
medical offices due to Covid-19. Ex. 18 at ¶ 15. At this point, she decided that she needed
to deal with her shoulder pain on her own until either her shoulder or the pandemic
conditions improved. Ex. 9 at ¶ 11. Over the next few months, she continued to have left
shoulder and arm pain and recalled taking “a lot of Motrin.” Exs. 9 at ¶ 12; 18 at ¶ 15. She
continued to wake at night due to pain and have problems reaching with her left arm. Ex.
9 at ¶ 12. By the summer of 2020, she “knew I had to get in to see someone,” and made
an orthopedic appointment. Id. at ¶ 13. She states that she was unable to get in earlier
due to pandemic restrictions. Ex. 18 at ¶ 16.
Petitioner states that at her initial orthopedic appointment in August 2020, she was
asked when the pain started and “could not recall the exact date,” but remembered that
it got bad enough by February 2020 that she spoke to a colleague about it, so “I told the
physician assistant that my pain got really bad in February 2020.” Ex. 9 at ¶ 13. She told
her orthopedist at a follow up visit that the pain first started after her flu shot and had
gotten worse over time. Id. Petitioner states that she told Dr. Harrison that the pain started
with her flu shot at her first visit with him – which was her third orthopedic appointment,
and nine months after vaccination. Ex. 18 at ¶ 18. She states that the record stating that
her pain started in February 2020 is “incorrect.” Ex. 18 at ¶ 17
Petitioner’s husband, Edward McCarthy, submitted an affidavit. Ex. 10. He first
became aware of her left shoulder pain “sometime in mid-to-late January 2020 when she
mentioned that she had been having pain for a few weeks and was having difficulty using
her left arm to reach and lift.” Id. at ¶ 2. He recalled that in late February or early March
2020, “right before Covid-19 became a real problem,” Petitioner told him that she needed
5 Exhibit 17 is a 17 page document titled “Shoulder Owner’s Manual: Treatment for Common Shoulder
Problems,” and consists of educational materials and home exercises for shoulder problems.
7

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to see a doctor for her shoulder pain. Id. at ¶¶ 4-5. However, she was then unable to do
so due to the pandemic. Id.
Petitioner’s daughter, Jamie Goodwin, also submitted an affidavit. Ex. 11. Ms.
Goodwin recalls that “[r]ight after [her mom] got her flu shot in December 2019,” they
spoke and Petitioner told Ms. Goodwin that she was having “a bad reaction to the flu
shot.” Id. at ¶ 3. Petitioner’s left arm was very painful and sore. Id. Petitioner again
complained of pain and difficulty sleeping in January 2020. Id. at ¶ 4. Ms. Goodwin states
that all of Petitioner’s left shoulder problems “started right after she got that flu shot in
December 2019.” Id. at ¶ 6.
Petitioner’s colleague and friend, Angela Malerk, submitted an affidavit in support
of Petitioner. Ex. 16. Before the Covid-19 pandemic, Petitioner and Ms. Malerk ate lunch
together two or three days a week. Id. at ¶ 4. Ms. Malerk recalled that in “early January
2020, just after the New Year, during one of our lunches together, Sara told me that her
left shoulder was really painful.” Id. at ¶ 6. Her left arm felt weak and was hard to move.
Id. Petitioner mentioned her left shoulder pain “at every lunch date that I can remember”
in January and February 2020. Id. at ¶ 7. Ms. Malerk recalled that Petitioner was planning
to go see a physician for her shoulder, but “right after we had that conversation, everything
shut down because of the pandemic.” Id. at ¶ 8. Ms. Malerk states this was in March 2020,
and by that point Petitioner had been talking about her left shoulder pain “for months.” Id.
While medical offices were closed due to the pandemic, Ms. Malerk and Petitioner
frequently spoke by phone, and during “almost every call,” Petitioner complained of left
shoulder pain. Id. at ¶ 9.
IV. Parties’ Arguments
Respondent contests only the second QAI criterion for a Table SIRVA – whether
onset of Petitioner’s pain occurred within the time specified, which is within 48 hours of
vaccine administration. Respondent’s Rule 4(c) Report, filed June 10, 2022, at *8-9 (ECF
No. 27) (“Rule 4(c) Report”). Respondent observes that Petitioner did not seek care for
her shoulder injury until seven months and 27 days after vaccination, at which time she
reported that she had been experiencing shoulder pain “since February 2020” – which is
over a month after vaccination. Id. at *8. Medical records do not reveal instances in which
she reported vaccination-associated pain, nor did any of her treating providers correlate
the vaccination with her alleged shoulder injury. Id. Respondent argues that “[o]nly
petitioner has raised the possibility that her alleged shoulder injury was due to the flu
vaccination,” and asserts that pursuant to Section 13(a)(1), I may not award
compensation based on the claims of a petitioner alone, unsubstantiated by medical
records or medical opinion. Id. at *8-9. Respondent adds that an off-Table claim is not
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viable because Petitioner has not offered an expert opinion in support of her claim, or
other evidence establishing causation. Id. at *10.
Petitioner emphasizes that she has “consistently testified that her arm pain began
the day of her vaccination.” Petitioner’s Response to Order to Show Cause, filed May 15,
2023, at *1 (ECF No. 38) (“Pet.”). Petitioner’s daughter filed affidavit testimony stating
that she and Petitioner discussed Petitioner’s shoulder pain in December 2019, shortly
after the flu shot. Id. (citing Ex.11 at 1). Petitioner adds that a coworker provided affidavit
testimony that “right after New Year’s 2020,” Petitioner discussed left arm pain during a
lunch break. Id. (citing Ex. 16 at 2). And Petitioner’s husband testified to discussing
Petitioner’s left arm pain in January 2020. Id. at *2 (citing Ex. 10 at 1).
Petitioner also acknowledges that there was “a significant period” between
vaccination and her first formal medical treatment, but argues that “this formal treatment
gap is entirely attributable to the emergence of the Covid-19 and subsequent Pandemic
restrictions.” Pet. at *2. She adds that the gap coincided with “the height of the uncertainty
surrounding Covid-19 transmission and during the heart of the Covid-19 lockdowns.” Id.
During this timeframe, she underwent an informal assessment with a colleague who
works as an orthopedic PA “in late January or early February 2020, prior to the Pandemic,
and even produced as evidence here the booklet of shoulder exercises that [the
orthopedic PA] provided to her for what he relayed to petitioner was likely either shoulder
bursitis or an impingement.” Id. (citing Exs. 9 at 2; 17; 18 at 3).
Petitioner further does not dispute that the initial orthopedic record for treatment of
the alleged SIRVA in this case lists a February 2020 onset date – which would put onset
over a month after vaccination – but argues that the evidence establishes that “this is
more likely than not an inaccurate onset date notation rather than proof of a delayed
onset.” Pet. at *2-3. In support, she cites affidavit testimony. Id. Petitioner adds that a
different record, her post-operative OT evaluation (Ex. 13 at 3), “support[s] an onset by
January 2020,” though acknowledging that the provider “did not record a more specific
onset date.” Id. With respect to the September 2, 2020 orthopedic record suggesting
onset in February 2020, Petitioner states that this reference “is a word-for-word recital of
the prior history and is exceedingly likely to have simply been a copy/paste of the prior
visit note.” Id. at *2-3 n.1.
Ultimately, Petitioner argues that the August 26, 2020 note referring to onset in
February 2020 “conflicts with the majority of the evidence, including the affidavit testimony
and the medical record from the occupational therapist, which reports an earlier onset.”
Id. at *3. Petitioner argues that medical records may be outweighed by later testimony
that is “consistent, clear, cogent and compelling,”6 and requests that I exercise discretion
6 Wood v. Sec’y of Health & Human Servs., No. 19-2008V, 2023 WL 2622521, at *4 (Fed. Cl. Spec. Mstr.
Mar. 24, 2023) (citing Camery v. Sec’y of Health & Human Servs., 42 Fed. Cl. 381, 391 (1998).
9

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and credit the “significant affidavit testimony, with supportive documentation” and medical
records. Id. at *4.
V. Analysis
Petitioner has not preponderantly established that the onset of her left shoulder
pain occurred within 48 hours of vaccine administration. There are no medical records
supporting the allegation – in contrast to the records placing onset well outside of that
timeframe.
Thus, the first record of treatment for Petitioner’s shoulder pain (which came nearly
eight months after vaccination) specifies that onset occurred in February 2020 – over a
month after vaccination. Ex. 8 at 17. The same record states that Petitioner denied any
antecedent trauma. Id. The OT evaluation is the best medical record in support of
Petitioner’s claim on this issue, but it states only that her shoulder pain started in January
2020 – which could mean January 1, January 31, or some date in between. Ex. 13 at 3.
Thus, the OT evaluation arguably could provide some support for the onset of her pain
being closer in time to vaccination than the orthopedic record. However, it does not place
onset within 48 hours of vaccination. In fact, only if the record specified that the onset of
Petitioner’s pain occurred on the first day of January – not just at some point during the
month of January – would it place onset within 48 hours of vaccination. Because it refers
only to the month of January, without specifying a date or even whether it was early or
late in the month, this record provides little support to Petitioner’s claim of onset within 48
hours.
Petitioner’s affidavit testimony provides some support for her contention that her
pain began within 48 hours of vaccination. Petitioner herself states that her left arm was
“immediately very sore” after vaccination. Ex. 18 at ¶ 7. And her daughter states that she
talked with Petitioner “[r]ight after she got her flu shot in December 2019,” and was told
that Petitioner’s left arm, where she received the vaccine, was “very painful and sore.”
Ex. 11 at ¶ 3. However, Ms. Goodwin does not explain what she means by “right after,”
which is non-specific and could mean on the way home from the vaccination – or could
mean a week later. Such a statement in an affidavit signed over a year after the fact, and
after the filing of the Petition, is not sufficient to overcome the medical record placing
onset over a month after vaccination. Ms. Malerk places onset in “early January 2020,
just after the New Year.” Ex. 16 at ¶ 6 (emphasis added). Onset after the New Year would
be more than 48 hours after vaccination, and thus outside of the Table timeframe.
Petitioner’s husband became aware of her shoulder problem in mid to late January 2020,
when she told him she had been having pain “for a few weeks” – which could be within
the Table timeframe, but also could be outside of that timeframe.
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Moreover, the affidavit testimony stating that the onset of Petitioner’s left shoulder
pain occurred “immediately” after vaccination is not corroborated by independent
evidence, such as medical records, and is inconsistent with the majority of the existing
medical records as well. These factors further diminish the weight such testimonial
evidence should be given. See Rose v. Sec’y of Health & Human Servs., No. 20-0056V,
2022 WL 4128908, at *3 (Fed. Cl. Spec. Mstr. Aug. 10, 2022) (dismissing Table SIRVA
claim where Petitioner stated her pain began on the day of vaccination but the medical
records did not support this claim); Eshraghi v. Sec’y of Health & Human Servs., No. 19-
0039V, 2021 WL 2809590, at *3-4 (Fed. Cl. Spec. Mstr. June 4, 2021) (dismissing Table
SIRVA claim where the petitioner did not seek care for several months and when he did
the medical records made only generalized references to when his pain began).
I acknowledge that the timing of Petitioner’s alleged injury, occurring in the months
leading up to the Covid-19 Pandemic, may have complicated her ability to seek medical
attention – and therefore explains some of the treatment delay. But her vaccination
occurred over two months before Covid-19 was declared a Pandemic.7 Moreover, she
has not explained why she did not avail herself of alternate means of receiving care such
as telephonically, through electronic messages, or telehealth, during the spring and early
summer of 2020. Otherwise, the length of time without treatment is too great not to be
deemed to undermine her onset contentions.
Overall, a preponderance of the evidence does not place the onset of Petitioner’s
left shoulder pain within 48 hours of vaccination. Thus, Petitioner’s Table SIRVA claim
must be dismissed.
In addition, I do not find on this record that a non-Table version of the same claim
would be viable. As a threshold matter, Petitioner did not avail herself of the opportunity
to allege such a claim, since she never filed an amended petition despite due opportunity.
But even if she had, the same onset deficiencies (coupled with an absence of compelling
expert support that could explain causation) would negatively impact the claim. It simply
has not been demonstrated “more likely than not” that a SIRVA could be caused in some
period of a week to a month or more post-vaccination – but not also require more
immediate treatment than what transpired here.
7 The World Health Organization declared COVID-19 a pandemic on March 11, 2020. Centers for Disease
Control COVID-19 Timeline, at https://www.cdc.gov/museum/timeline/covid19.html (last visited Nov. 29,
2023).
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Case 1:21-vv-00425-UNJ Document 42 Filed 01/03/24 Page 12 of 12
Conclusion
Petitioner has failed to establish a left shoulder injury that meets the
requirements for a Table SIRVA, has not asserted that she suffered an injury that
was caused in fact by the December 30, 2019 vaccination, and has not offered
evidence needed to substantiate such a claim. Accordingly, this case is
DISMISSED for insufficient evidence. The Clerk of Court shall enter judgment
accordingly.8
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
8 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.
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