VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_21-vv-00978
Package ID: USCOURTS-cofc-1_21-vv-00978
Petitioner: Liza Orban
Filed: 2021-08-19
Decided: 2024-09-19
Vaccine: influenza
Vaccination date: 2019-11-30
Condition: shoulder injury related to vaccine administration (SIRVA)
Outcome: denied
Award amount USD: 

AI-assisted case summary:
Liza Orban filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging she suffered a shoulder injury related to vaccine administration (SIRVA) from an influenza vaccine received on November 30, 2019. She also asserted that the flu vaccine caused her injury in fact. The court previously ruled that the onset of her shoulder pain occurred at least 51 days after vaccination, which is beyond the 48-hour timeline for a Table SIRVA claim, and dismissed that part of her claim. The court also directed Ms. Orban to show cause why her causation-in-fact claim should not be dismissed, as the evidence did not appear sufficient to prevail. Ms. Orban responded that she was unable to obtain additional evidence to overcome the onset ruling or demonstrate that her injury met the Althen standard for causation-in-fact. She stated that proceeding further would be unreasonable and a waste of resources. The court found that the record did not contain sufficient medical records or a medical opinion to demonstrate entitlement to compensation. Consequently, Ms. Orban's claim for compensation was denied, and the case was dismissed for insufficient proof.

Theory of causation field:
Off-Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_21-vv-00978-0
Date issued/filed: 2024-06-27
Pages: 18
Docket text: PUBLIC ORDER/RULING (Originally filed: 05/28/2024) regarding 39 Findings of Fact & Conclusions of Law,, Order to Show Cause, ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
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Case 1:21-vv-00978-UNJ Document 40 Filed 06/27/24 Page 1 of 18
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0978V
LIZA ORBAN, Chief Special Master Corcoran
Petitioner, Filed: May 28, 2024
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Michael A. Firestone, Marvin Firestone, MD, JD, and Associates, San Mateo, CA, for
Petitioner.
Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.
FACT RULING AND ORDER TO SHOW CAUSE1
On February 22, 2021, Liza Orban 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 shoulder injury related to vaccine
administration (“SIRVA”) as defined by the Vaccine Injury Table, resulting from an
influenza (“flu”) vaccine received on November 30, 2019. Petition at 1. Alternatively,
Petitioner asserts that her shoulder injury was caused in fact by the flu vaccine. Id. The
case was assigned to the Special Processing Unit of the Office of Special Masters.
1 Because this 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 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-00978-UNJ Document 40 Filed 06/27/24 Page 2 of 18
For the reasons discussed herein, I find that a preponderance of the evidence
supports a finding that the onset of Petitioner’s shoulder pain did not occur within 48
hours, the time set forth in the Table for a SIRVA. Furthermore, the record at present
does not support a finding that the onset of Petitioner’s shoulder pain occurred within any
time that could plausibly support a finding of vaccine causation. Unless Petitioner can
provide additional evidence remedying this evidentiary deficiency, her claim will be
dismissed.
I. Relevant Procedural History
Just under a year after the case was activated, Respondent determined that he
would defend this claim (ECF No. 29). On October 7, 2022, Respondent filed his Rule
4(c) Report setting forth his objections (ECF No. 30). Following a status conference,
Petitioner filed a motion for a finding of fact on the issue of onset on May 10, 2023 (ECF
No. 36). Respondent responded on June 22, 2023, and Petitioner replied on June 28,
2023 (ECF Nos. 37, 38). The issue of when Petitioner’s shoulder pain began is now ripe
for resolution.
II. Factual Finding
A. Legal Standards
Before compensation can be awarded under the Vaccine Act, a petitioner must
demonstrate, by a preponderance of evidence, all matters required under Section
11(c)(1), including the factual circumstances surrounding his or her claim. Section
13(a)(1)(A). In making this determination, the special master or court should consider the
record as a whole. Section 13(a)(1). Petitioner’s allegations must be supported by medical
records or by medical opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). “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).
To overcome the presumptive accuracy of medical records, a petitioner may
present testimony which is “consistent, clear, cogent, and compelling.” Sanchez v. Sec'y
2

Case 1:21-vv-00978-UNJ Document 40 Filed 06/27/24 Page 3 of 18
of Health & Human Servs., No. 11–685V, 2013 WL 1880825, at *3 (Fed. Cl. Spec. Mstr.
Apr. 10, 2013) (citing Blutstein v. Sec'y of Health & Human Servs., No. 90–2808V, 1998
WL 408611, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998)). The Federal Circuit has
“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) (explaining that a patient may not report every ailment,
or a physician may enter information incorrectly or not record everything he or she
observes).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
hours of the administration of 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).
3

Case 1:21-vv-00978-UNJ Document 40 Filed 06/27/24 Page 4 of 18
42 C.F.R. § 100.3(c)(10).
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.
B. Relevant Factual History
This ruling contains only a brief overview of facts relating to the onset of Petitioner’s
symptoms.
1. Medical Records
Petitioner received a flu vaccine intramuscularly in her left arm on November 30,
2019. Ex. 16 at 10-11. Three weeks later (December 19, 2019), she was seen by her
primary care physician (“PCP”) Dr. Joel Buchanan. Ex. 3 at 19. She had been
experiencing headaches, and thought they could be related to her blood pressure. Id. She
also reported pain in her right hip that had begun months earlier. Id. An examination was
done, although the record does not indicate that the examination included her
musculoskeletal system. Id. at 20. She was given a tetanus diphtheria acellular pertussis
(“Tdap”) vaccine, advised to log her blood pressure at home, and use heat, ice, and
stretches for her hip pain. Id. at 21. Although Petitioner asserts that she instructed the
nurse to place the Tdap vaccine in her right arm because her she was experiencing left
shoulder pain, the record does not indicate the arm of administration for this vaccine. Id.
at 19-21, 24. The record also does not document any concerns with Petitioner’s left arm
or shoulder. Id.
Petitioner had a screening mammogram on January 3, 2020. Ex. 3 at 17. The
record does not document any concerns with her left arm or shoulder, although it appears
that (consistent with the specific nature of this treater visit) no history was taken and no
general physical examination was done. Id.
Petitioner saw Dr. Buchanan for a comprehensive physical examination and
routine gynecological exam on January 20, 2020 – now almost two months after the
relevant vaccination. Ex. 3 at 13. The review of systems section of the record indicates
that Petitioner did not report decreased range of motion, joint pain, joint stiffness, joint
swelling, or myalgia. Id. On examination, she had full range of motion in all joints and
normal joints and muscles. Id. at 14. A pap smear was done, and Petitioner was given
orders for a screening mammogram and colonoscopy. Id. at 15. She was also instructed
to start iron for anemia and Tramadol for foot pain. Id. The record does not document any
concerns or findings relating to Petitioner’s left shoulder or arm. Id.
4

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Petitioner next saw the medical assistant in her PCP’s office approximately six
weeks later, on March 6, 2020. Ex. 3 at 11. It appears that this visit was just for a blood
draw, and no examination was done. Id. at 11-12. Then, Petitioner had a telemedicine
appointment with Dr. Buchanan on April 16, 2020, for right foot pain. Id. at 10. Dr.
Buchanan ordered an x-ray and directed Petitioner to continue Tramadol. Id. Neither of
these records mention Petitioner’s left arm or shoulder.
On June 23, 2020 – nearly seven months after vaccination – Petitioner saw Dr.
Buchanan for left shoulder pain. Ex. 3 at 8. She now reported a dull achy feeling when
she reached to the side. Id. She stated that she “wakes up sore from it,” and it was painful
to lift a coffee cup. Id. She reported that the onset of her shoulder pain was “months ago.”
Id. She further explained that she thought that “the flu vacc[ine] that was given to her at
Sam’s Club was given too high.” Id. The record states that on examination, she had
decreased range of motion in her right shoulder but otherwise normal joints and muscles.3
Id. at 9. Dr. Buchanan referred Petitioner to physical therapy (“PT”) and recommended
home exercises. Id.
Two weeks later (July 6, 2020), Petitioner underwent a PT evaluation for left
shoulder pain. Ex. 5 at 3. She reported that her symptoms began on November 30, 2019,
explaining that the onset was “sudden following the flu shot.” Id. She stated that she saw
her doctor for other immunizations in December 2019 and had them in the opposite arm.
Id. at 4. She added that “due to the COVID-19 pandemic she was just recently able to get
into the doctor.” Id. She reported a pain level of two out of ten at best and four out of ten
at worst. Id. at 3. On examination, her left shoulder exhibited reduced and painful active
range of motion, as well as reduced strength, compared to her right shoulder. Id. at 4.
She had positive results on the Speed’s bicep test on the left side. Id. at 5. She was found
to have limited shoulder range of motion and strength that impacted her ability to perform
functional activities such as dressing, carrying groceries, sleeping, and bathing. Id. at 6.
On the medical history form for her July 6th PT evaluation, Petitioner listed an injury date
of “Nov/Dec 2019” and noted the cause or her injury as “flu shot.” Id. at 62.
Petitioner returned to Dr. Buchanan on July 21, 2020, for evaluation of left shoulder
pain. Ex. 3 at 6. At this visit, she reported that the onset of her shoulder pain was “weeks
ago.” Id. On examination, she had decreased range of motion in her left shoulder but
otherwise normal joints and muscles. Id. at 7. Dr. Buchanan ordered an x-ray and referred
her to an orthopedist. Id.
3 Respondent states that this reference to Petitioner’s right shoulder is “likely a scrivener’s error, as the
medical records otherwise refer to petitioner’s left arm.” Respondent’s Response at *3 n. 2 (ECF No. 37).
My ruling herein would not change if I were to find that Petitioner’s PCP intended to refer to her left arm.
5

Case 1:21-vv-00978-UNJ Document 40 Filed 06/27/24 Page 6 of 18
Petitioner saw orthopedist Dr. Christopher Stroud on August 3, 2020 for left
shoulder pain. Ex. 8 at 6. She explained that she received a flu vaccine in November, and
“[s]hortly after that, she noted some heaviness and a dull aching sensation in the shoulder
and upper arm.” Id. Her symptoms had continued since then. Id. On examination, she
had some limitations in internal rotation but otherwise full range of motion in her shoulder.
Id. at 7. She had positive results on the Speed’s test and negative results on the O’Brien’s
maneuver. Id. Left shoulder x-rays were unremarkable. Id. at 8. Dr. Stroud’s impression
was left shoulder pain following flu vaccination, and he recommended heat, Voltaren gel,
and stretches. Id. He also recommended Neurontin for nighttime use. Id.
Petitioner returned to Dr. Buchanan for left shoulder pain on August 25, 2020,
stating that the onset of her pain was “months ago.” Ex. 3 at 4. Her range of motion was
better, but the pain was the same. Id. Dr. Buchanan’s impression was that she was 30-
40% improved, and he noted that she was participating in PT and seeing Dr. Stroud. Id.
at 5.
Petitioner attended a total of 16 PT visits before being discharged on August 26,
2020. Ex. 5 at 56. At discharge, her shoulder was stronger, and she was able to move it
better, but she still had pain, especially at night. Id. Her pain level was zero out of ten at
best and eight out of ten at worst. Id. She continued to have reduced active range of
motion, with slight improvement in some planes of motion from her initial evaluation. Id.
at 57. Because her range of motion had not improved and she was still in pain, she was
discharged from PT and advised to return to her physician. Id. at 59.
Petitioner returned to Dr. Stroud on September 11, 2020, reporting that she was
not much better, with pain at night that came and went. Ex. 8 at 9. She had tried Neurontin
without success. Id. On examination, her shoulder was not tender and had full range of
motion, with pain at the mid range. Id. at 10. He described her left shoulder as “irritable”
with a positive impingement sign and excellent strength. Id. He assessed her with
shoulder inflammation secondary to vaccine administration, and ordered a left shoulder
ultrasound to evaluate the bursa. Id. He also prescribed a steroid Dosepak and
Meloxicam. Id. If she was not better in five weeks, he would consider a subacromial
steroid injection. Id.
Petitioner saw Dr. Stroud for left shoulder adhesive capsulitis on October 16, 2020.
Ex. 8 at 11. She reported that her symptoms had been ongoing since November 2019,
and her pain was slightly improved. Id. However, she continued to have pain at night, or
when holding groceries. Id. Meloxicam and the steroid Dosepak helped. Id. On
examination, she had full range of motion “except for some scapular recruitment.” Id. at
12. He recommended PT and again prescribed Meloxicam and a steroid Dosepak. Id.
Petitioner underwent a second PT evaluation on October 21, 2020. Ex. 6 at 16.
Although the medical record indicates that she reported the onset of her symptoms both
6

Case 1:21-vv-00978-UNJ Document 40 Filed 06/27/24 Page 7 of 18
on October 19, 2020, and “on November 30th4 when she got a flu shot.” (Id.), on the
intake form Petitioner wrote that her symptoms began on November 30, 2019. Id. at 28.
Petitioner reported that her shoulder had been “really painful and she has been losing
ROM since the injection.” Id. at 16. She had gone to PT for about two months in the
summer without relief. Id. On examination, her left shoulder active and passive range of
motion were both reduced compared to her right shoulder. Id. at 17. Petitioner attended
four more PT visits through November 2, 2020. Id. at 8.
Petitioner saw Dr. Stroud for left shoulder pain on November 30, 2020. Ex. 15 at
6. Meloxicam had helped somewhat, but the steroid Dosepak did not help and PT was
hurting her. Id. Dr. Stroud administered a steroid injection in her left shoulder and
recommended another course of PT, along with heat and stretches. Id. at 7.
Petitioner attended a third PT evaluation on December 28, 2020. Ex. 14 at 7. She
reported left shoulder pain that began a year earlier in November 2019 after receiving a
flu vaccine. Id. She had attended two rounds of PT, but had to stop “due to insurance
purposes.” Id. She had received a steroid injection a month earlier (November 30, 2020)
that helped some. Id. A left shoulder ultrasound had revealed bursitis. Id. She reported a
pain level of two out of ten, that ranged from zero at best to ten at worst. Id. On
examination, her left shoulder active and passive range of motion were reduced, as was
her left shoulder strength. Id. at 8.
Petitioner returned to Dr. Stroud the following month (January 28, 2021). Ex. 15 at
3. Dr. Stroud noted that this had been “an ongoing issue since November 2019,” that
Petitioner stated began following a flu vaccination. Id. Mobic and Voltaren gel helped
slightly, and she had a 30% improvement with a glenohumeral steroid injection done in
November 2020. Id. Petitioner chose to proceed with another steroid injection. Id. at 4.
2. Witness Statements
Petitioner has filed five declarations in support of her claim. Exs. 1, 17, 18, 21, 23.
Petitioner states that after receiving the flu vaccination:
I recognized almost immediately that something was wrong in my left arm.
I described it “like when a dentist’s needle goes into your gum to anesthetize
the gum for a procedure which caused me to see stars briefly.” This was not
a normal feeling of getting an immunization.
Ex. 1 at ¶ 5.
Because she works in the healthcare field, she has had flu shots annually for over
20 years, and this vaccination did not feel the same as usual. Ex. 1 at ¶ 5. Nevertheless,
4 Although the record does not specify the year, given the timing I interpret the record as referring to
November 30, 2019.
7

Case 1:21-vv-00978-UNJ Document 40 Filed 06/27/24 Page 8 of 18
she has felt soreness for up to about two weeks after a flu vaccination, so she waited for
the pain to subside. Id. at ¶ 6.
Petitioner states that she felt “weakness and awkwardness” in doing daily tasks
such as folding clothes, carrying groceries, reaching to pick up items, or lifting her
grandchild, although she does not explain when these problems began. Ex. 1 at ¶ 7. She
used to go to the gym regularly, but states that “[s]ince receiving the November 30, 2019
Flu vaccination” she can no longer lift weights or use her arm for the elliptical machine.
Id. at ¶ 8. She has difficulties with getting dressed, driving, and sleep. Id. at ¶¶ 9, 10, 14.
As for the December 19, 2019 appointment that was silent on problems with her
left arm or shoulder, she explains that she made this appointment due to feeling “off”
physically for weeks, with strange heart palpitations and high blood pressure swings. Ex.
17 at ¶ 4. She had also been experiencing hip pain for several years, probably starting
around 2015, that she had been meaning to address but had put off. Id. at ¶ 6. She
reported her hip pain to Dr. Buchanan at the December 2019 appointment, explaining
that it “likely took precedence over any concern I had regarding my sore left shoulder
presuming it would resolve on its own.” Id. (emphasis added).
Petitioner adds that she also reported to Dr. Buchanan during the December 2019
visit that she had lost her right big toenail a couple of months earlier, but this also was not
noted in the record – suggesting that the record is incomplete as to matters other than
her left shoulder pain. Ex. 17 at ¶ 7. She is “confident that I mentioned my left arm’s
‘achiness’ and ‘soreness’ during this December 19, 2019 visit, but apparently this never
made it into my medical records either.” Id. She explains that she is so confident about
this because when a Tdap vaccine was recommended she agreed, but instructed the
nurse to administer it in her “good” arm – her right arm – since her left arm was still sore
from the flu vaccination the month prior. Id.; Ex. 23 at ¶ 2.
Petitioner states that her December 2019 appointment with Dr. Buchanan was the
first time she had seen him, and she had not had a PCP for the previous two years. Ex.
23 at ¶ 1. This visit was mainly to check her blood pressure due to headaches. Id. She
was also “being prescribed Gabapentin and Tramadol for my painful right hip that had
been bothering me for quite some time,”5 and in retrospect she suspects that these
medicines masked the true extent of her shoulder injury. Id. She adds that the medical
documentation for that visit was entered by Dr. Buchanan’s scribe rather than the doctor
himself, and that there was no documented evaluation of her musculoskeletal system in
the exam section of the note. Id. at ¶ 3. She adds that she did report her sore left arm
5 In a different declaration, Petitioner states that she had been prescribed Tramadol for right foot pain and
Gabapentin for pain from trigeminal neuralgia. Ex. 17 at ¶¶ 16, 20. Although this inconsistency is troubling,
I find it does not matter for purposes of this ruling.
8

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during her January 3, 2020 mammogram, explaining that she told the technician to “go
easy on my left side, because I had a sore arm.” Id. at ¶ 4.
As to the January 20, 2020 exam, although the record describes it as an annual
physical and well-female exam with routine gynecological exam, Petitioner’s recollection
is that the visit was mostly focused on her routine gynecological exam and not a “full-
blown physical where the doctor evaluates a patient from head to toe.” Ex. 17 at ¶ 17.
She does not recall Dr. Buchanan asking her questions about her musculoskeletal
system. Id. She states, “I think I believed my arm soreness was going to go away any
day.” Id. (emphasis added). She explains that the “trigeminal neuralgia that I was
experiencing was such an overbearing heavy feeling and caused such tiredness and
overall malaise, that I think I lumped it all together and just didn’t stress what else was
still bothering me regarding my left shoulder.” Id. She adds, “[l]ikely, the pain in my left
shoulder was still being numbed/masked somewhat by the pain medication” she was
taking. Id. (emphasis added). She adds that the record’s notation that she did not report
decreased range of motion, joint pain, joint swelling, or myalgia, and that an examination
found full range of motion and normal joints and muscles is “not entirely accurate”
because she had significant hip pain at the time, with decreased range of motion in her
hip. Ex. 23 at ¶ 5. At this visit, she does not recall feeling significant reduction in her left
shoulder range of motion. Id.
Petitioner adds that the March 6, 2020 visit was only a lab draw with a medical
assistant. Ex. 17 at ¶ 18; Ex. 23 at ¶ 6.
At Petitioner’s April 16, 2020 telemedicine visit, Dr. Buchanan reviewed her lab
results. Ex. 17 at ¶ 20. Petitioner recalls “complaining about the odd symptoms related to
my chest and upper armpit area and that I was still experiencing severe itchiness and
some sharp pains.” Id. She also reported right foot pain, which had been bothering her
for years and for which she had been prescribed Tramadol, and she “presume[d] this
medication also had the added benefit of helping alleviate my left shoulder pain.” Id. Due
to the “limitations and awkwardness” of a telemedicine visit, and that her toe took
precedence because it limited her mobility, she presumes that Dr. Buchanan “mistook my
armpit complaints with the rest of my complaints related to my left shoulder.” Id. She adds
that he only noted her toe complaints and neglected to record the remaining complaints
she raised. Id.
Petitioner asserts that Respondent’s suggestion that she did not mention shoulder
pain at the April 16th telehealth visit is “misleading, as this was a very short telemedicine
appointment” to review lab results in the early days of the COVID-19 Pandemic. Ex. 23
at ¶ 7. She recalls mentioning pain in her chest area, and adds that because it was a
virtual visit, she was “too embarrassed to really go into detail” about pain around her
nipples and itchiness in her chest. Id. But the pain in her chest was “from the same
muscles one moves when they move their shoulder and is exactly the pain I feel when I
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cross my body with my left arm or wash my face.” Id. She adds that she was still taking
Gabapentin and Tramadol, likely masking her left arm pain and making it “hard to
differentiate the pain in my upper left arm/shoulder that was slowly getting worse.” Id.
Although Petitioner suggests that she reported left shoulder pain at this appointment, she
does not actually say that she did. Exs. 1, 17, 23.
Petitioner adds that at Dr. Buchanan’s suggestion, she had previously begun
tracking her blood pressure using the health portal. Ex. 23 at ¶ 8. On examining her
journal, she notes that she “experienced a lot of pain in the area of my chest and breast,
and the muscle groups affected with arm movement, and associated with movement of
one’s shoulder, shoulder joint, and shoulder muscles. To me, it’s all connected, and it all
started with the flu vaccination I received on November 30, 2019 at Sam’s Club.” Id. at
¶ 9. She adds that Respondent’s suggestion that she first reported left shoulder pain on
June 23, 2020 “is misleading.” Ex. 23 at ¶ 10. She states:
I had been telling medical professionals all along that I was feeling
soreness/achiness/pain that later turned to limited mobility in my left side
that started when I received my flu vaccination of November 30, 2019. It
was only at this point that I went to see Dr. Buchanan specifically for this
pain because it had not gone away and seemed to be actually getting worse
with time.
Ex. 23 at ¶ 10.
Petitioner also submitted a declaration from her husband, John Orban. Ex. 21. Mr.
Orban states that his wife had left shoulder surgery in October 2021 “for a frozen shoulder
that she has been suffering from ever since shortly after she got a flu shot in November
2019.” Id. at ¶ 2. He recalls that “during the Winter of 2019 she began becoming frustrated
with a nagging pain in her left shoulder that seemed to start shortly after the flu injection.”
Id. at ¶ 4. She kept waiting for the soreness to go away and tried to exercise thinking it
would help. Id. at ¶ 6. He recalls that “in the early months of 2020,” Petitioner was worried
that exercising may be preventing her shoulder from healing, so she cut back on her
exercise regime and stopped lifting weights. Id. at ¶ 8. Starting in March 2020 she stayed
home completely, as she had been furloughed at work and had no need to go out. Id. at
¶ 9.
Petitioner submitted a witness statement from Farrah Naeem. Ex. 18. Ms. Naeem
explains that she and Petitioner were both laid off from positions with the same employer
in March 2020. Id. They had become friends and continued to exchange text messages
about Petitioner’s shoulder condition. Id. Ms. Naeem states that she is “aware that Liza
Orban had an issue with her upper arm in late December 2019 and early 2020.” Id. At
work, Ms. Naeem “tried to help with suggestions on exercises that could help her regain
her motion and strengthen her arm again.” Id. These conversations occurred when she
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would accidentally hurt herself at work and say that her arm was still sore from the flu
vaccination. Id.
C. The Parties’ Arguments
Petitioner argues that she “has consistently reported her symptoms began on
November 30, 2019 right after receiving the flu injection.” Petitioner’s Motion for Findings
of Fact on Issue of Onset, filed May 10, 2023, at *7 (ECF No. 36) (“Mot.”). She maintains
the July 21, 2020 visit notes “are erroneous” because they note onset as being “weeks
ago” – apparently in contrast to the notes of the prior and subsequent visits, which report
onset as having been “months ago.” Mot. at *7. She adds that her July 6, 2020 PT
evaluation reflects November 30, 2019 as the onset date. Id. Thus, “[t]here is no evidence
in the record that contradicts Petitioner’s version of events – that she experienced the
onset of symptoms consistent with SIRVA immediately after vaccination, on November
30, 2019” (id. at *8) – despite the July 21st record stating that onset was weeks earlier,
which would mean June or July 2020 (not to mention the absence of reports of shoulder
pain for over six months post-vaccination).
Regarding the extended treatment delay, Petitioner argues that once she began
treatment, “she always consistently attributed her shoulder symptoms to the flu vaccine
she received on November 30, 2019.” Mot. at *9. Her decision to wait to obtain treatment
“was reasonable because she thought the symptoms would go away and wanted . . . in
person visits during the Covid pandemic.”6 Id.
Petitioner cites two cases in support of her claim, Shelton v. Sec’y of Health and
Human Servs., No. 19-279V, 2021 WL 2550093 (Fed. Cl. Spec. Mstr. May 21, 2021), and
Winkle v. Sec’y of Health & Human Servs., No. 20-485V, 2021 WL 2808993 (Fed. Cl.
Spec. Mstr. June 3, 2021). Mot. at *9-10. Petitioner acknowledges that the treatment
delay in both of these cases was slightly shorter (five months), but asserts that her nearly
seven-month delay is “about the same amount of time.” Id. at *10. Shelton and Winkle,
she maintains, demonstrate that “medical records reflecting consistent attribution of
shoulder symptoms to vaccine administration are crucial,” noting that her records show
that she consistently stated that her symptoms began when the vaccine was
administered. Id. at *11. Further, Petitioner gave “reasonable explanations for why the
medical records do not reflect concerns about her shoulder sooner.” Id. at *11. The
December 2019 was her first primary care visit in two years, and her shoulder was not
the focus of the visit; at that time, she also expected the pain to go away. Id. Petitioner
6 This sentence is missing a verb between the words “to” and “in.” Presumably, Petitioner meant to state
that she wished to avoid in person visits during the COVID-19 Pandemic.
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adds that the “report failed to make any entries about Petitioner’s musculoskeletal even
though this visit was an annual physical,” citing Kirby, 997 F.3d at 1383.7 Id.
Petitioner adds that she is “certain that she told the technician to go easy on her
left arm” at the January 3, 2020 visit. Mot. at *12. And she describes the January 20, 2020
appointment as a “very brief meeting . . . about the issues she had already reported” –
despite the fact that it was documented as a comprehensive physical examination. Id.
With respect to the April 16, 2020 visit, she explains that she was “simply too
embarrassed to talk about her shoulder symptoms.” Mot. at *12. It was a virtual visit, and
she was embarrassed to go into detail about the pain around her nipples and itchiness
from clothes. Id. Thus, her “reticence to undress in front of a video camera” is
understandable. Id. She adds that the June 23, 2020 appointment was the first time she
saw Dr. Buchanan specifically for her shoulder pain – because it had not gone away and
seemed to be getting worse with time. Id. at *13.
Respondent argues that Petitioner has not preponderantly established that the
onset of her shoulder pain occurred within 48 hours of vaccination. Respondent’s
Response, filed June 22, 2023, at *5 (ECF No. 37) (“Resp.”). Petitioner’s witness
statements alone are “inadequate to overcome the presumed accuracy and reliability of
contemporaneous medical records, which show petitioner’s alleged SIRVA did not begin”
within 48 hours of vaccination. Resp. at *6. And “[n]one of the contemporaneous medical
records support an immediate post-vaccination onset of shoulder pain and several of
petitioner’s records are inconsistent with her claim.” Id. Further, Respondent points out
that Petitioner explained that because she has received the flu vaccine annually for over
20 years and immediately recognized that something was wrong with her arm, yet still did
not report shoulder concerns for seven months despite multiple intervening visits with her
primary care physician, Dr. Buchanan – the treater to whom she ultimately reported her
shoulder pain months later. Id. at *6.
Respondent also points out that Petitioner requested her healthcare information
from Dr. Buchanan on December 21, 2019, two days after the December 2019 visit – but
never sought to correct that that Dr. Buchanan allegedly omitted her report of shoulder
pain from the record. Resp. at *7. And Petitioner allegedly began recording problems with
chest pain and her periods in April 2020 – but none of these notes refer to left shoulder
pain. Resp. at *7. Petitioner’s reliance on Shelton and Winkle is misplaced, Respondent
contends, because the petitioners in those cases had shorter delays in seeking care, with
little or no intervening medical encounters. Id.
7 It appears that Petitioner is referring to the January 20, 2020 visit, which was the annual physical. Ex. 3
at 13.
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Otherwise, Respondent maintains, Petitioner’s attempts to discredit
contemporaneous medical records with declarations prepared years after vaccination for
purposes of litigation “are self-serving and not adequate to overcome the reliability of
contemporaneous medical records.” Resp. at *7. And although Petitioner asserts that pain
medication she was taking for other conditions could have masked her degree of pain,
Petitioner has also attested that she “saw stars briefly” during vaccination and
experienced sharp pain, “blast[s] of soreness” and “a feverish feeling” – and did complain
of pain in her hip and right foot during this time period. Id. at *7-8 (citing Ex. 1 at 1-2). If
the pain medication she was taking during that time were insufficient to manage her lesser
hip and foot pain, Respondent argues, then it is unlikely those medications would have
“numbed the true extent” of her alleged left shoulder pain. Id. at *8.
Respondent finally contends that Petitioner’s argument that she did not report
shoulder symptoms during her April 2020 telehealth appointment due to embarrassment
is unsupported. Resp. at *8. Petitioner had already discussed her chest pain and
soreness, and documented this in her health portal. Id. Moreover, when Petitioner did
finally report shoulder pain, she described it as shoulder and left arm pain that radiated
into her neck – not chest pain or itchiness. Id. Respondent further points out that Petitioner
asserts that she did discuss her left arm pain at prior appointments, despite record
omission of those reports – but in contradiction to her assertion that she was not
comfortable doing so. Id. And Petitioner would not have needed to undress for a shoulder
examination to be done. Id.
Petitioner replies that Respondent misunderstands what Petitioner meant in her
declaration about the December 2019 appointment. Petitioner’s Reply, filed June 28,
2023, at *1-2 (ECF No. 38) (“Reply”). Petitioner clarifies that she does not state or imply
that Dr. Buchanan failed to record left shoulder issues that she reported; instead,
Petitioner “implied that she made these statements to the nurse administering the TDAP
vaccine, not Dr. Buchanan.” Reply at *2. Petitioner reiterates that the December 2019
appointment was “for a myriad of medical issues that had long predated the vaccine.” Id.
She presumed that her left shoulder issues would resolve on their own, like in previous
years. Id. Because she only mentioned it to the nurse administering the Tdap vaccine, “it
should not come as a surprise that it was not documented.” Id. at *3. She adds that her
declaration shows that “she has previously delayed treatment for painful conditions, so
her delay in getting her shoulder treated was not unprecedented.” Id.
Petitioner further takes issue with Respondent’s suggestion that a more painful
condition generally requires more extensive treatment than a less painful one, and asserts
that the extent of the treatment she received for her hip and right foot, as well as her left
shoulder, “has no bearing on the pain associated.” Reply at *3.
In addition, Petitioner argues that “it is not inconsistent for a patient to feel
embarrassed and reticent to share with a doctor over a virtual-video appointment (which
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was fairly new technology for most patients who may be more reticent to disrobe while
‘on camera’)” and more comfortable reporting the issue in writing in a health portal. Reply
at *4. And “pain associated with her left shoulder can change over time . . . . Just because
Petitioner did not later report chest pain in connection to her shoulder pain, it does not
follow that Petitioner did not think her shoulder pain was connected to her chest issues.”
Id.
Petitioner ultimately maintains that she has filed multiple witness declarations
credibly explaining how she did report left shoulder issues to her doctor, and has provided
reasonable explanations for why this may not have been set forth in some records. Reply
at *4. Petitioner thus argues that she has “presented sufficient corroborative evidence to
support a finding of fact that she experienced the onset of symptoms of SIRVA” within 48
hours of vaccination or, in the alternative, that her shoulder injury was caused in fact the
flu vaccination. Reply at *5.
D. Factual Finding on Onset
One fact stands out above all else in this onset debate: Petitioner did not seek care
for shoulder pain until nearly seven months after vaccination. In the interim, she saw her
PCP – the same doctor to whom she ultimately reported her shoulder pain later – for care
three times (in addition to other medical encounters where reporting shoulder pain may
not be expected, such as a lab draw and mammogram). Thus, she unquestionably had
the opportunity to report shoulder pain, and it is reasonable to expect she might have if it
were in fact as severe as alleged.
Most significantly, Petitioner saw her PCP for a comprehensive physical
examination 51 days – nearly two months – after vaccination, but reported no joint pain
or decreased range of motion, and on examination was found to have full range of motion
in all joints. Ex. 3 at 14. Although Petitioner characterizes this appointment as being more
focused on gynecological care, that is not what the record itself states. Furthermore, she
saw her PCP two additional times in the first five months after vaccination, but did not
seek care for shoulder pain at either of these appointments. While her declarations
provide some explanation for why she did not seek shoulder treatment at these
appointments, on key factual issues they rely more on inference rather than clear
statements, and are not otherwise detailed or persuasive. Moreover, it is difficult to
reconcile her statement that the November 2019 vaccination was immediately different
than previous vaccinations with her failure to seek medical attention thereafter for nearly
seven months, particularly with multiple opportunities to do so.
When Petitioner finally sought care for shoulder pain, she did mention her flu
vaccination, stating that she “[t]hinks that the flu vacc[ine] that was given to her at Sam’s
Club was given too high.” Ex. 3 at 8. But even then she did not directly relate her shoulder
injury to vaccination, identifying the onset of her shoulder pain as “months ago” – which
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could mean any number of months, and does not suggest that the onset of her pain was
within 48 hours of vaccination.
Admittedly, Petitioner did report that her symptoms began on November 30, 2019
“sudden[ly] following the flu shot” at her PT evaluation on July 6, 2020. Ex. 5 at 3.
However, on her medical history form she reported an injury date of “Nov/Dec 2019.” Id.
at 62. Thereafter, her medical records are somewhat inconsistent, indicating that she
reported that her shoulder began “weeks ago”8 (Ex. 3 at 6), “[s]hortly after” a November
flu vaccine (Ex. 8 at 6), “months ago” (Ex. 3 at 4), since November 2019 (Ex. 8 at 11), on
October 19, 2020 and November 30, 2019 (Ex. 6 at 16, 28), in November 2019 (Ex. 14
at 7), and “since November 2019” (Ex. 15 at 3).
In her declarations, Petitioner asserts that the flu vaccination caused her to “see
stars briefly,” and was different from previous vaccinations. Ex. 1 at ¶ 5. She “recognized
almost immediately that something was wrong in [her] left arm.” Id. And she states that
“[s]ince receiving the November 30, 2019 Flu vaccination” she can no longer lift weights
or use her arm for the elliptical machine. Id. at ¶ 8. However, she does not state that she
had pain within 48 hours of vaccination. Petitioner has not provided consistent, clear,
cogent and compelling testimonial evidence sufficient to overcome the presumptive
accuracy of the medical records. Sanchez, 2013 WL 880825, at *3.
Other witness statements are no more helpful to resolving the onset issue in
Petitioner’s favor. Petitioner’s husband, for example, recalls that she had a frozen
shoulder “that she has been suffering from ever since shortly after she got a flu shot in
November 2019” (Ex. 21 at ¶ 2 (emphasis added)) and was frustrated with left shoulder
pain “during the Winter of 2019.” Ex. 21 at ¶ 2. However, he does not specify in more
detail when Petitioner’s shoulder pain began, or provide details about how he was able
to recall this information nearly two years later.9 And Ms. Naeem states only that she was
aware of an issue with Petitioner’s upper arm “in late December 2019 and early 2020”
(Ex. 18) – which does not support a finding of onset within 48 hours.
I find that the most compelling evidence in this case are the medical records closest
in time to vaccination. And these records contain no mention of any problems with
Petitioner’s left shoulder until nearly seven months after vaccination. Most persuasive is
the record of Petitioner’s January, 20, 2020 comprehensive physical examination
containing no musculoskeletal findings on examination and stating that Petitioner did not
report joint pain or decreased range of motion. I find that later medical records and the
8 Petitioner attempts to dismiss the record stating that her pain began weeks earlier as “erroneous.” Mot. at
*7. Petitioner’s logic in this regard is circular, suggesting that this record is erroneous because it is
inconsistent with earlier and later records – and then, assuming this record can now be ignored, asserting
that she consistently reported onset on November 30, 2019. Id.
9 Mr. Orban’s declaration was signed on November 22, 2021. Ex. 21.
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witness statement evidence filed in this case are not sufficient to overcome the January
20th record. Based on this record, along with the remaining record evidence, a
preponderance of the evidence supports a finding that the onset of Petitioner’s shoulder
pain occurred after January 20, 2020 – which is at least 51 days after vaccination.
Other records do not support the interpretation proposed by Petitioner. Thus,
although Petitioner suggests that she reported left shoulder pain during the April 16, 2020
telemedicine visit, she never actually states that she did – despite filing three declarations
totaling 24 pages on her own behalf. Exs. 1, 17, 23. Instead, she implies that she reported
problems with her chest, armpit, and shoulder, and that Dr. Buchanan neglected to record
her shoulder complaints. But when she did report her shoulder pain two months later, she
did not report related chest and armpit concerns. And she does not allege that she sought
treatment for shoulder pain during the April 16th visit.
In addition, the two cases Petitioner relies on, Winkle and Shelton, are too different
to help Petitioner. In both, the petitioner’s delay in seeking care was approximately five
months – nearly two months shorter. More significantly, the Winkle petitioner had no
intervening medical treatment, and the Shelton petitioner’s only intervening medical
treatment was a single emergency visit for an asthma attack. Winkle, 2021 WL 2808993,
at *4; Shelton, 2021 WL 2550093, at *4-5. In contrast, Ms. Orban had multiple intervening
medical appointments, including three with her PCP, and, importantly, a comprehensive
physical examination that is silent on her left shoulder and states that she reported no
joint pain and no problems were found on musculoskeletal examination.
Petitioner’s case is more like Nicholson v. Sec’y of Health & Human Servs., No.
17-1416V, 2022 WL 14437541 (Fed. Cl. Spec. Mstr. Sept. 22, 2022). In Nicholson, the
petitioner saw a neurologist one month after vaccination, and on examination her
shoulder shrug was full strength, and she had strength and tone within normal limits in all
major muscle groups. Id. at *4. Nineteen days later, the petitioner saw another doctor
complaining of arm pain since her October 3, 2016 flu vaccination. Id. Although Petitioner
asserted that she felt intense pain within one day of vaccination, the special master found
that the petitioner’s silence about left arm or shoulder pain at the previous neurology
appointment “raises substantial question about whether such pain existed at that time.”
Id. at *19, 22. The special master then ruled that preponderant evidence supported a
finding that the petitioner “developed shoulder pain sometime between” the neurology
appointment and the later appointment where she reported shoulder pain. Id. at *22.
Here too, a preponderance of the evidence supports a finding that Petitioner was
not experiencing left shoulder pain at the time of her January 20, 2020 comprehensive
physical examination. From this, it follows that the onset of her left shoulder pain most
likely occurred sometime after the January 20th appointment. Nicholson, 2022 WL
14437541, at *22; see also N.B. v. Sec’y of Health & Human Servs., No. 20-151V, 2023
WL 183458, at *4, 7-8 (Fed. Cl. Spec. Mstr. July 19, 2022), (finding onset was not within
16

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48 hours when the petitioner did not report shoulder pain until four months after
vaccination despite multiple intervening appointments – including one with her PCP, from
whom she ultimately sought care for her shoulder problem – that were silent on shoulder
pain); Shoemaker v. Sec’y of Health & Human Servs., No. 20-625V, 2022 WL 2288698
(Fed. Cl. Spec. Mstr. Jan. 18, 2022), mot. for rev. denied, 150 Fed. Cl. 307 (2022)
(dismissing claim where the petitioner alleged immediate shoulder pain but did not seek
care until almost ten months after vaccination); Porcello v. Sec’y of Health & Human
Servs., No. 17-1255V, 2020 WL 4725507, at *1-2, 9-10 (Fed. Cl. Spec. Mstr. June 22,
2020), mot. for rev. denied, 152 Fed. Cl. 469 (2020) (dismissing claim where the petitioner
did not report arm pain until nearly four months after vaccination, despite intervening
examination finding normal range of motion).
The record does support a finding that Petitioner experienced a left shoulder injury,
but not that the onset of Petitioner’s shoulder pain occurred within 48 hours of vaccination.
Her Table SIRVA claim must therefore be dismissed.
III. Order to Show Cause
The Petition asserts an alternative claim that Petitioner’s shoulder injury was
caused in fact by the flu vaccination. In order to prevail on a causation in fact claim,
Petitioner must establish the Althen factors. See Althen v. Sec’y of Health & Human
Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005) (setting out a three part test for causation
in fact claims, requiring that a petitioner establish (1) a medical theory causally connecting
the vaccination and the injury; (2) a logical sequence of cause and effect showing that the
vaccination was the reason for the injury; and (3) a showing of a proximate temporal
relationship between vaccination and injury).
In this case, based on the record evidence and my ruling herein that the onset of
Petitioner’s shoulder pain occurred at least 51 days after vaccination, it does not appear
that Petitioner can meet the third prong, which requires a showing of a proximate temporal
relationship between the vaccination and injury. Thus, it appears that Petitioner cannot
prevail on a causation in fact claim on the current record. Nevertheless, I allow Petitioner
a final opportunity to provide additional evidence on this issue.
Conclusion
This claim cannot proceed unless Petitioner offers sufficient evidence
demonstrating that the onset of her injury occurred within a time that could satisfy the
Althen standard. I will afford her the chance to file such evidence that may exist but is not
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yet part of the record, or to provide other argument (perhaps based on prior Program
determinations) that such a lengthy post-vaccination onset could still support a SIRVA.
It is important that Petitioner take seriously the chance I am providing her to
substantiate her claim. It is a petitioner’s obligation to follow court orders and to provide
the evidence to support her claim. Failure to follow court orders, as well as failure to file
the medical records and other evidence to support her claim, may result in dismissal of
Petitioner’s claim. Tsekouras v. Sec’y of Health & Hum. Servs., 26 Cl. Ct. 439 (1992),
aff’d, 991 F.2d 810 (Fed. Cir. 1993) (per curiam); Sapharas v. Sec’y of Health & Hum.
Servs., 35 Fed. Cl. 503 (1996); Vaccine Rule 21(b).
Accordingly:
Petitioner is therefore hereby ORDERED to Show Cause why this case
should not be dismissed for insufficient evidence by Monday, July 29, 2024.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
18

================================================================================
DOCUMENT 2: USCOURTS-cofc-1_21-vv-00978-1
Date issued/filed: 2024-09-19
Pages: 3
Docket text: PUBLIC DECISION (Originally filed: 08/19/2024) regarding 42 DECISION of Special Master ( Signed by Chief Special Master Brian H. Corcoran. )(mpj) Service on parties made.
--------------------------------------------------------------------------------
Case 1:21-vv-00978-UNJ Document 43 Filed 09/19/24 Page 1 of 3
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-0978V
UNPUBLISHED
LIZA ORBAN, Chief Special Master Corcoran
Petitioner, Filed: August 19, 2024
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Petitioner’s Motion for a Decision
HUMAN SERVICES, Dismissing Petition; Influenza (Flu)
Vaccine; Shoulder Injury Related to
Respondent. Vaccine Administration (SIRVA)
Michael Arvin Firestone, Marvin Firestone, MD, JD, and Associates, San Mateo, CA, for
Petitioner.
Nina Ren, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On February 22, 2021, Liza Orban 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 shoulder injury related to vaccine
administration (“SIRVA”) as defined by the Vaccine Injury Table, resulting from an
influenza (“flu”) vaccine received on November 30, 2019. Petition at 1. Alternatively,
Petitioner asserts that her shoulder injury was caused in fact by the flu vaccine. Id. The
case was assigned to the Special Processing Unit of the Office of Special Masters.
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the 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-00978-UNJ Document 43 Filed 09/19/24 Page 2 of 3
On May 28, 2024, I ruled that the evidence supported a finding that the onset of
Petitioner’s shoulder pain occurred at least 51 days after vaccination, far beyond the 48
hour timeline for a Table SIRVA claim, and thus dismissed her Table claim. Fact Ruling
and Order to Show Cause, issued May 28, 2024 (ECF No. 39) (“Ruling and Show Cause
Order”). I also stated that it did not appear that Petitioner could prevail on a causation in
fact claim on the current record, and directed Petitioner to show cause why that claim
should not be dismissed. Id.
Petitioner filed a statement responding to the Ruling and Show Cause Order.
Petitioner’s Statement, filed Aug. 16, 2024 (ECF No. 41). Petitioner states that she has
been “unable to obtain additional evidence to overcome” my onset Ruling, and could not
“offer additional evidence demonstrating that the onset of her injury occurred within a time
that could satisfy the Althen standard.” Petitioner’s Statement at *1. She also has found
no decisions that would support a SIRVA onset of pain more than 51 days after
vaccination, and thus offers no other argument. Id. Under these circumstances, Petitioner
states that “to proceed further would be unreasonable and would waste the resources of
the Court, the Respondent, and the Vaccine Program.” Id. at 2. She adds that she
“understands that a decision by the Special Master dismissing her petition will result in a
judgment against her. She has been advised that such a judgment will end all of her rights
in the Vaccine Program.” Id.
To receive compensation under the Vaccine Act, Petitioner must prove either
1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table
– corresponding to a covered vaccine, or 2) that she suffered an injury that was actually
caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). A petitioner must also
demonstrate that the injury satisfies the statutory severity requirement. Id. at
§ 11(c)(1)(D). Examination of the record does not disclose that Petitioner is able to satisfy
these requirements.
Under the Vaccine Act, a petitioner may not be awarded compensation based on
the petitioner’s claims alone. Rather, the petition must be supported by either the medical
records or by a medical opinion. § 13(a)(1). In this case, the record does not contain
medical records or a medical opinion sufficient to demonstrate entitlement to
compensation. For these reasons, and in accordance with § 12(d)(3)(A), Petitioner’s
claim for compensation is DENIED and this case is DISMISSED for insufficient
proof. The Clerk shall enter judgment accordingly.3
IT IS SO ORDERED.
3 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

Case 1:21-vv-00978-UNJ Document 43 Filed 09/19/24 Page 3 of 3
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3