VICP Registry Case Source Bundle
Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_22-vv-00272
Package ID: USCOURTS-cofc-1_22-vv-00272
Petitioner: Kathy F. McMurty
Filed: 2022-03-10
Decided: 2025-07-15
Vaccine: Tdap
Vaccination date: 2019-03-11
Condition: left shoulder injury related to vaccine administration (SIRVA)
Outcome: dismissed
Award amount USD: 

AI-assisted case summary:
Kathy F. McMurty filed a petition for compensation under the National Vaccine Injury Compensation Program, alleging a left shoulder injury related to vaccine administration (SIRVA) caused by a Tdap vaccine she received on March 11, 2019. She reported initial pain a week after vaccination, which developed into severe pain three days later, leading to diagnoses of subacromial bursitis and a rotator cuff tear. Medical records from March to July 2019 showed improvement, with her pain rating at two out of ten and her shoulder functioning at ninety percent by the end of physical therapy in July 2019. She reported no pain but some popping in July 2019, and her range of motion and strength were full. There was a three-year gap in treatment records until August 2022, when she reported intermittent pain over the preceding three years. The respondent argued that the petitioner failed to meet the Vaccine Act's severity requirement, which mandates that residual effects or complications of the injury persist for more than six months after vaccination. The court found that the evidence demonstrated a limited period of treatment that resolved by July 2019, well before the six-month mark, and the subsequent three-year gap without treatment meant the injury's persistence could not be proven. Therefore, the court dismissed the claim for failure to meet the severity requirement.

Theory of causation field:
Table

Public staged source text:

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DOCUMENT 1: USCOURTS-cofc-1_22-vv-00272-0
Date issued/filed: 2025-07-15
Pages: 5
Docket text: PUBLIC DECISION (Originally filed: 06/09/2025) regarding 34 DECISION of Special Master Signed by Chief Special Master Brian H. Corcoran. (ppa) Service on parties made.
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Case 1:22-vv-00272-UNJ Document 35 Filed 07/15/25 Page 1 of 5
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 22-272V
KATHY F. MCMURTY, Chief Special Master Corcoran
Petitioner, Filed: June 9, 2025
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Philip Irwin, Neal & Harwell, PLC, Nashville, TN, for Petitioner.
Elizabeth Andary, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On March 10, 2022, Kathy F. McMurty (“Petitioner”) filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq2 (the “Vaccine Act”). Petitioner alleges that she suffered a left
shoulder injury related to vaccine administration (“SIRVA”), a defined Table Injury, which
was causally related to a tetanus-diphtheria-and pertussis (“Tdap”) vaccine she
received on March 11, 2019. Petition at 1.
For the reasons discussed below, I find Petitioner has not established that she
suffered the residual effects of her injury for more than six months, and therefore dismissal
of the claim is warranted.
1 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 (2012).

Case 1:22-vv-00272-UNJ Document 35 Filed 07/15/25 Page 2 of 5
I. Procedural History
Petitioner filed this matter on March 10, 2022. On October 6, 2023, Respondent
filed his Rule 4(c) Report, opposing compensation in this case, arguing that the Vaccine
Act’s “severity requirement” could not be met. ECF 26 at 3. Petitioner was subsequently
ordered to show cause why her inability to meet this claim requirement is not grounds for
the claim’s dismissal. ECF No. 28. Petitioner filed her response on February 12, 2024.
Petitioner’s Response to Show Cause Order (Pet. Res.), ECF No. 33. The matter is ripe
for resolution.
II. Factual Background
Petitioner received a Tdap vaccine on March 11, 2019. Ex. 1 at 1, Ex. 2 at 2. She
had no prior history of left shoulder pain, inflammation, or dysfunction. A week later, on
March 18, 2019, Petitioner went to a walk-in clinic, reporting that she had a Tdap vaccine
one week earlier and experienced initial pain that developed into severe pain three days
later. Ex. 6 at 2. Her symptoms were consistent with a rotator cuff tear or possibly severe
tendinitis secondary to her vaccination. Id.
Petitioner saw orthopedist Dr. Ian Byram on March 22, 2019. Ex. 5 at 10. After an
examination, she was diagnosed with subacromial bursitis and a traumatic incomplete
tear of the rotator cuff. Id. at 11-12. An MRI on April 12, 2019, showed potential infectious
or chemical bursitis, a tear of the supraspinatus tendon, and degeneration of the anterior
inferior labrum with a focal tear. Ex. 4 at 2-3.
On May 10, 2019, Petitioner returned to Dr. Byram. Ex. 5 at 5. She reported
improved symptoms, only rating her pain as two out of ten. Id. Dr. Byram administered a
cortisone injection and referred her to physical therapy. Id. at 6-7.
Between May 29, 2019 and July 3, 2019, Petitioner attended twelve physical
therapy visits. Ex. 3 at 17-50. At her second-to-last appointment, she reported that her
pain was zero out of ten at best, and three out of ten at worst. Id. at 47. She also reported
her shoulder was improved to ninety percent. Id. At her last appointment, she reported
the same pain levels and that her shoulder was “feeling much better.” Id. at 50.
Petitioner returned to Dr. Byram on July 5, 2019. She reported some “popping” but
no pain. Ex. 5 at 3. An examination showed symmetric range of motion and full strength
in her left shoulder. Id.
2

Case 1:22-vv-00272-UNJ Document 35 Filed 07/15/25 Page 3 of 5
There is a subsequent, three-year treatment gap, with no reports of shoulder pain.
Ex. 7 at 8-9 (routine physical exam on January 31, 2020, with no reports of shoulder pain
or discomfort); Id. at 1-2 (routine physical exam on January 29, 2021, with no reports of
shoulder pain or discomfort). Then, on August 9, 2022, Petitioner returned to Dr. Byram
for intermittent pain over the last three years. Ex. 5A at 3. However, at that time her pain
was reported as zero out of ten. Id. She exhibited slightly reduced range of motion and
strength, positive Jobe, Hawkins, and Neers tests. Id. Dr. Byram diagnosed her with a
tear of the left rotator cuff and pain in the shoulder joint. Id. No other contemporaneous
medical records have been filed in this matter.
III. Affidavit evidence
Petitioner submitted two affidavits in support of her claim. Ex. 8; Supplemental
Affidavit of Kathy F. McMurtry (“Supp. Aff.”). In her initial affidavit, Petitioner summarized
her injury and course of treatment. Ex. 8. In her supplemental affidavit, Petitioner stated
that by July 2019 she experienced no pain when her arm was in the resting position, but
she experienced significant pain when performing certain tasks. Supp. Aff. At 5-6. After
her discharge from physical therapy, Petitioner performed a daily exercise program
prescribed by her physical therapist. Id. at 8. Further, from March 11, 2019, through at
least January 2020. Petitioner also stated she experienced continuous pain in her left
shoulder when required to lift anything over ten pounds or with certain movements and
continued to do a daily home exercise program. Id. at 7, 9.
Petitioner further submitted an affidavit from David B. McMurtry, Petitioner’s
husband. ECF No. 32. Mr. McMurtry stated that Petitioner’s condition improved by July
of 2019, however she continued to do a daily exercise program until at least January of
2020. Id. at 2. Further, for “approximately one (1) year following her injection injuries,
[Petitioner] was unable to engage in her normal day-to-day activities without pain.” Id. at
3.
ANALYSIS
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 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.
In particular, a petitioner must establish that she suffered an injury meeting the
3

Case 1:22-vv-00272-UNJ Document 35 Filed 07/15/25 Page 4 of 5
Table criteria (i.e. a Table injury), in which case causation is presumed, or an injury
shown to be caused-in-fact by the vaccination she received. If a petitioner establishes
a Table injury the burden shifts to respondent to establish a more likely alternative
cause. Section 13(a)(1)(A), 11(c)(1)(C)(i), 14(a). If a petitioner cannot establish a Table
injury, or she may pursue causation-in-fact under the legal standard set forth in Althen
v. Sec'y of Health & Hum. Servs., 418 F. 3d 1274, 1278 (Fed. Cir. 2005).
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 an influenza vaccine. 42 C.F.R. § 100.3(a)(XIV)(B).
In addition to causation, a petitioner must also meet the requirements
establishing that the vaccine received is “covered” by the Program, the duration and
severity of petitioner’s injury, and the lack of other award or settlement.3 With regard to
severity, a petitioner must show that she suffered the residual effects or complications
of her injury or condition for more than six months after the administration of the vaccine.
§ 11(c)(1)(D)(i); see Song v. Sec'y of Health & Hum. Servs., 31 Fed. Cl. 61, 65-66
(1994), aff'd, 41 F.3d 1520 (Fed. Cir. 2014) (noting that a petitioner must demonstrate
the six-month severity requirement by a preponderance of the evidence). Finding that
petitioner has met the severity requirement cannot be based on petitioner's word alone,
though a special master need not base their finding solely on medical records. Section
13(a)(1); see Colon v. Sec'y of Health & Hum. Servs., 156 Fed. Cl. 534, 541 (2021).
Severity must be established regardless of whether the claim arises under the Table or
is a causation-in-fact claim.
The parties dispute whether Petitioner has demonstrated that she suffered
“residual effects or complications of [the injury alleged] for more than six months after the
administration of the vaccine,” as required for eligibility under the Vaccine Program.
Section 11(c)(1)(D)(i). Because Petitioner received the flu vaccine on March 11, 2019,
she must demonstrate by preponderant evidence that her residual symptoms continued
at least through September 11th of that same year (assuming onset of pain the day of
vaccination). See, e.g., Herren v. Sec'y of Health & Human Servs., No. 13-100V, 2014
WL 3889070, at *2 (Fed. Cl. Spec. Mstr. July 18, 2014); see also Hinnefeld v. Sec'y of
Health & Human Servs., No. 11-328V, 2012 WL 1608839, at *4-5 (Fed. Cl. Spec. Mstr.
3 In summary, a petitioner must establish that she received a vaccine covered by the Program, administered
either in the United States and its territories or in another geographical area but qualifying for a limited
exception; suffered the residual effects of her injury for more than six months, died from her injury, or
underwent a surgical intervention during an inpatient hospitalization; and has not filed a civil suit or collected
an award or settlement for her injury. See § 11(c)(1)(A)(B)(D)(E).
4

Case 1:22-vv-00272-UNJ Document 35 Filed 07/15/25 Page 5 of 5
Mar. 30, 2012) (dismissing case where medical history revealed that petitioner's injury
resolved less than two months after onset).
The record herein, however, establishes that Petitioner’s initial treatment occurred
over approximately four months, or until July 3, 2019. At that time, Petitioner reported no
pain, had full strength, and symmetric range of motion in her left shoulder. Ex. 5 at 3-4.
And there are subsequently no records containing reference to shoulder pain until August
9, 2022 – over three years later - at which time she reported intermittent pain for the past
three years. Ex. 5A at 3. Petitioner also has not provided an explanation as to why she
did not seek formal treatment for this three-year period, only attesting that she performed
an at-home exercise program until at least January 2020.
Thus, the evidence only demonstrates a short period of limited treatment that led
to improvement by July 2019, well prior to the six-month cut-off – and with no indication
of a plan to continue treatment. And then no treatment was pursued at all for years
thereafter, allowing for any number of possible intervening factors to explain Petitioner’s
renewed symptoms. I cannot conclude from this that the record preponderantly
establishes Petitioner’s injury persisted for the six months required by the Act.
Conclusion
Because Petitioner has failed to meet the severity requirement set forth in Section
11(c)(1)(D)(i), Petitioner cannot establish entitlement, and therefore I must DISMISS
her claim in its entirety. In the absence of a timely-filed motion for review (see Appendix
B to the Rules of the Court), the Clerk of Court shall enter judgment in accord with this
Decision.4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
5