O'leary, M.D. v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

No. 18-584V

Filed: June 24, 2021

PUBLISHED

Special Master Horner

ROBERT O’LEARY, M.D.,

Petitioner, Ruling on Entitlement; Shoulder

v. Injury Related to Vaccine

Administration; SIRVA;

SECRETARY OF HEALTH AND Influenza Vaccine; Onset;

HUMAN SERVICES, Adhesive Capsulitis

Respondent.

Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.

Naseem Kourosh, U.S. Department of Justice, Washington, DC, for respondent.

RULING ON ENTITLEMENT 1

On April 25, 2018, petitioner, Robert O’Leary, M.D., filed a petition under the

National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-10-34 (2018) 2 (“the Act” or

“the program”). (ECF No. 1.) Petitioner alleges that he suffered a Table Injury of

shoulder injury related to vaccine administration (“SIRVA”) caused by an influenza (“flu”)

vaccine he received on October 7, 2016. (Id.) For the reasons set forth below, I find

that petitioner is entitled to compensation for a Table Injury of SIRVA.

I. Procedural History

Petitioner filed his petition, several medical records, and a sworn affidavit on April

25, 2018. (ECF No. 1; Exs. 1-4.) This case was initially assigned to the Special

1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will

be posted on the United States Court of Federal Claims’ website in accordance with the E-Government

Act of 2002. See 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 the special master, upon review, agrees that the identified material fits within this definition, it will be

redacted from public access.

2Within this decision, all citations to § 300aa will be the relevant sections of the Vaccine Act at 42 U.S.C.

§ 300aa-10-34.

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Processing Unit (“SPU”). (ECF No. 6.) Petitioner filed a supplemental affidavit on June

12, 2018. (ECF No. 8; Ex. 5.)

On March 1, 2019, respondent filed a status report indicating that he was willing

to engage in settlement discussions. (ECF No. 17.) However, petitioner filed a status

report on July 3, 2019 indicating that the parties were unable to reach an agreement

and requesting that respondent file a Rule 4(c) report. (ECF No. 26.)

Respondent filed his Rule 4(c) report on July 31, 2019, recommending against

compensation. (ECF No. 28.) Respondent explained that petitioner’s alleged vaccine

injury does not fit the criteria required for a Table SIRVA. (Id. at 1, 4.) Specifically,

respondent suggested that the medical records do not demonstrate that petitioner’s

symptoms began within 48 hours of vaccination and that alternate causes explain

petitioner’s shoulder pain. (Id. at 4.)

This case was reassigned to Special Master Roth on August 15, 2019. (ECF No.

29.) Petitioner filed two supplemental affidavits on November 11, and December 6 of

2019, (ECF Nos. 32, 33; Exs. 6, 7), and an expert report from physical medicine and

rehabilitation specialist, Dr. Naveed Natanzi, D.O., on January 27, 2020. (ECF No. 34;

Ex. 8.) Respondent filed a responsive expert report from orthopedic surgeon Dr. Brian

Feely M.D. on April 27, 2020. (ECF No. 35, Ex. A.) Petitioner filed another

supplemental affidavit on April 30, 2020. (ECF No. 36; Ex. 10.)

On July 16, 2020, petitioner filed a status report requesting a ruling on

entitlement. (ECF No. 39.) Petitioner then filed a motion for a ruling on the record on

August 17, 2020. (ECF No. 40.) Respondent filed a response to petitioner’s motion on

October 1, 2020. (ECF No. 42.) Petitioner did not file a reply.

This case was reassigned to my docket on January 26, 2021. (ECF No. 44.) On

January 28, 2021, I issued a scheduling order indicating that I intend to act on the

pending motion for a ruling on the record unless the parties advised that they wished to

resume settlement discussions. (ECF No. 45.) Respondent filed a status report on

March 11, 2021 indicating that the parties were unable to reach an agreement regarding

settlement and requesting a ruling on the record. (ECF No. 47.) Accordingly, this case

is now ripe for a ruling on entitlement. 3

3 I have determined that the parties have had a full and fair opportunity to present their cases and that it is

appropriate to resolve this issue without a hearing. See Vaccine Rule 8(d); Vaccine Rule 3(b)(2);

Kreizenbeck v. Secretary of Health & Human Services, 945 F.3d 1362, 1366 (Fed. Cir. 2020) (noting that

“special masters must determine that the record is comprehensive and fully developed before ruling on

the record.”).

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II. Factual History

a. As reflected in petitioner’s medical records

Prior to his vaccination, petitioner was a relatively healthy 51-year old man with

no significant recent medical history. Petitioner had not sought medical treatment in the

three years prior to the vaccination at issue in this case. (Ex. 5, p. 1.)

Petitioner received a flu vaccination on October 7, 2016. (Ex. 1.) He was initially

seen by Dr. John J. Brennan on November 9, 2016 for left shoulder pain. (Ex. 2, p. 1.)

Dr. Brennan noted that petitioner “had an old history of a trauma to his shoulder when

he fell on it but recovered nicely and had no pain.” (Id.) Petitioner reported that he had

recently developed new aching pain in his left shoulder causing difficulty with overhead

activities and nighttime pain. (Id.) On examination, petitioner exhibited some deformity

in both shoulders at the A.C. joint. He also showed full active forward elevation with a

mildly positive impingement sign in his left shoulder. Petitioner was able to externally

rotate his shoulder and resist forward flexion with slight pain. (Id. at 2.) Dr. Brennan

diagnosed petitioner with left shoulder pain and administered a corticosteroid injection.

(Id.)

Petitioner received a left shoulder MRI without contrast on January 27, 2017. (Id.

at 31.) Petitioner’s MRI revealed supraspinatus and infraspinatus tendinosis with low-

grade partial-thickness articular sided tearing, subscapularis tendinosis, moderate

degeneration of the acromioclavicular joint, degeneration of the glenohumeral joint with

subchondral cyst formation truncation of the free edge of the posterior superior glenoid

labrum, and mild tendinosis of the intra-articular portion of the long head of the biceps

tendon. (Ex. 2, p. 32.)

Petitioner returned to Dr. Brennan for a follow up exam on February 5, 2017. (Id.

at 5-8.) He reported significant stiffness in his shoulder and pain in his biceps. (Id. at

5.) Dr. Brennan explained that petitioner had some rotator cuff tearing, bicep

tendinopathy, and elements of adhesive capsulitis. (Id. at 6.) Petitioner reported that

the corticosteroid injection provided some relief for a few weeks, but that his pain had

returned and chose to follow up with Dr. Brennan after considering his treatment

options. (Id. at 5, 7.)

On March 9, 2017, petitioner was seen by Dr. Schrank for evaluation of his

shoulder. (Ex. 2, pp. 9-12.) Petitioner reported that he had noticed a progressive loss

in range of motion over the past five months, and that he now experienced intermittent

and moderate anterior lateral arm pain. (Id. at 9.) On exam, petitioner exhibited

tenderness at the scapula and along the long head of the biceps tendon and

supraspinatus. (Id.) His supraspinatus strength was recorded as 4/5 and internal and

external rotation strength as 5/5. Petitioner showed positive Neer’s and Hawkins signs,

and negative speeds test and Yergasons signs. (Id. at 10.) Dr. Schrank observed a

grade I SLAP tear and a type II acromion. (Id. at 10-11.) Petitioner was diagnosed with

a left frozen shoulder and referred to physical therapy. (Id. at 11, 30.)

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Petitioner began physical therapy on March 21, 2017. (Ex. 3, p. 1.) His initial

examination notes that his pain and stiffness began “in October” and “shortly after

receiving a flu vaccine.” (Id.) The onset date was recorded as October 15, 2017;

however, the basis for this date is unclear as the date of petitioner’s vaccination is not

included in the accompanying history nor is any other date certain for onset discussed.

(Id.) Petitioner’s exam showed tenderness to palpation, considerable restriction, and

decreased strength in his left shoulder. (Id. at 2.) He was assessed with left shoulder

adhesive capsulitis, major motion loss, posterior cuff and bicep tenderness, and

weakness of rotator cuff and scapular stabilizers. (Id.) Petitioner returned for two more

physical therapy sessions on March 23 and 30 of 2017. (See Ex. 3, pp. 4-7.) During

these visits, petitioner reported that he was complying with his home exercise program

and tolerating treatment, but still had difficulty sleeping due to his pain. (Ex. 3, pp. 4, 6.)

On April 13, 2017, petitioner returned for a follow-up exam. (Ex. 2, p. 13.)

Petitioner reported that he continued to have restricted motion in his left shoulder, and

that he felt his condition was getting worse. Petitioner reported that his pain interrupted

his sleeping and interfered with his activities of daily living (“ADLs”). (Id.) Petitioner’s

exam revealed tenderness of the medial border of the scapula and tenderness of the

superomedial angle of the scapula, tenderness on the long head of the biceps tendon,

and supraspinatus tenderness. (Id. at 14.) Petitioner received a corticosteroid injection

at this visit. (Id. at 15.)

Petitioner returned for another follow-up on June 20, 2017. (Id. at 18.) He

reported the same symptoms as he did on his prior exam and that he believed physical

therapy increased his pain. Petitioner received another corticosteroid injection at this

visit. (Id. at 18, 20.) Petitioner’s final medical record documents a follow-up on July 27,

2017. Petitioner again reported that his range of motion had not changed and that he

was doing home exercises as tolerated. (Ex. 2, p. 23.) Petitioner was advised of

surgical options, but chose to manage his pain with home exercises instead. (Id. at 25.)

b. As reflected in the Affidavits

Petitioner has submitted a number of affidavits during the pendency of this case.

In his initial affidavit, petitioner addressed the general requirements of the Vaccine Act,

stating that he received a flu vaccine on October 7, 2016, that he received it at Great

South Bay Endoscopy in Patchogue, New York, that he sustained a left shoulder injury

caused by his vaccine, that he suffered effects of his injury for over six months, and that

he has never received an award or settlement for his vaccine injury. (Ex. 4, p. 1.)

Petitioner’s first supplemental affidavit incorporated the entirety of his original

affidavit. This affidavit adds that petitioner’s primary care physician is Dr. Robert

Roche, but that he had never seen Dr. Roche, and had never been to the doctor in the

three years before receiving his October 7, 2016 flu vaccination. Petitioner also

explains that he had a previous shoulder injury when he was 14 years old, that it was

likely a sprain, and that it resolved within 3-4 weeks. (Ex. 5, p. 1.)

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Petitioner’s second supplemental affidavit adds that petitioner was working per

diem as an anesthesiologist at Great South Bay Endoscopy when he received his flu

shot, and that he did not file a worker’s compensation claim in connection to his

vaccination. Petitioner also adds in this affidavit that the previous shoulder injury

referred to in Exhibit 2 is the same injury from when he was 14 years old referenced in

the previous affidavit. (Ex. 6, p. 1.)

Petitioner’s third supplemental affidavit adds that petitioner “definitely felt left

shoulder pain within the first 24 hours after the injection on October 7, 2016, but

attributed it to the usual soreness that occurs after a flu vaccination,” and that “[t]he pain

worsened significantly over the next few weeks with an associated loss in range of

motion of the left shoulder.” (Ex. 7, p. 1.) This affidavit describes that petitioner was

sitting when he was vaccinated while the administer was standing and that he does not

recall maneuvering his arm in any position while being vaccinated. (Id.)

Petitioner’s final affidavit contains a more detailed account of his vaccination,

noting that he received the vaccination at his place of employment on October 7, 2016.

The following day he experienced pain in his left shoulder, but considered it typical of a

flu vaccination and chose to treat it with anti-inflammatory medications and massage.

Several weeks later he reports noticing a reduced range of motion in addition to

worsening pain, specifically when raising his left arm or reaching behind his back.

Petitioner also began to experience trouble sleeping due to his pain. After several

months with no improvement, petitioner made an appointment with Dr. Brennan and

received a second opinion from Dr. Schrank. Petitioner explains that physical therapy

worsened his condition, and that after receiving several cortisone shots he considered

surgery, but ultimately declined. Petitioner has not sought any additional treatment for

his condition and manages his pain and mobility with daily stretching and anti-

inflammatory medication (Ex. 10, p. 2.)

III. Expert Opinions

a. Petitioner’s Expert – Naveed Natanzi, D.O.

Petitioner submitted an expert report from physical medicine and rehabilitation

specialist Dr. Naveed Natanzi. (ECF No. 34-2; Ex. 8.) Dr. Natanzi received his medical

degree from Western University of Health Sciences in June of 2012. (Ex. 9A, p. 2.) He

is board certified by the American Academy of Physical Medicine and Rehabilitation.

(Id. at 1.) Dr. Natanzi completed his residency at the University of California, Irvine

Physical Medicine and Rehabilitation department. (Id.) He was previously an attending

physician at Bodor Clinic and currently serves as an attending physician at Pasadena

Rehab Institute. Dr. Natanzi also works at Regenerative Sports and Spine Institute, a

company he founded in 2017. (Id.)

Dr. Natanzi explains that “most people are unaware that a vaccination can cause

significant shoulder dysfunction,” so they often fail to associate their post-vaccine

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shoulder injuries with vaccinations. (Ex. 8, p. 7.) He notes that this often skews

observed correlations between shoulder injuries and vaccinations in the medical records

of SIRVA cases. (Id.) However, Dr. Natanzi points out that petitioner described “recent

development” of left shoulder pain on November 9, 2016, just one month after his

vaccination. (Id.) Further, Dr. Natanzi cites petitioner’s physical therapy records to

show that some of petitioner’s treating physicians noted onset of his pain in October.

(Id.)

Dr. Natanzi notes that petitioner’s difficulty with overhead activities, positive

impingement signs, decreased range of motion with ongoing rotator cuff mediated

pains, adhesive capsulitis, and bicipital tendinitis are all “commonly seen in the context

of a SIRVA injury.” (Id. at 8.) Dr. Natanzi indicates that petitioner explains in his

affidavit that his only prior left shoulder trauma involved a football game when he was

14-years old, and that he had never experienced any left shoulder injuries since. Dr.

Natanzi opines that petitioner’s account is corroborated by the lack of any medical

records documenting shoulder pain or injuries prior to petitioner’s October 2016 flu

vaccination. (Ex. 8, p. 8.)

Dr. Natanzi believes that petitioner experienced “[i]nadvertent overpenetration of

the vaccination needle resulting in bursal and rotator cuff penetration causing . . .

immediate pain, limited range of motion, and discomfort.” And that the “[v]accine

[interacted] with naturally-occurring antibodies from a prior vaccination, resulting in an

exaggerated, robust, and prolonged inflammatory response [causing] Adhesive

capsulitis and rotator cuff mediated pain. (Id. at 9.) Dr. Natanzi cites a series of case

studies on SIRVA which “include one or more of a variety of symptoms and diagnoses .

. . [that were] confirmed in [petitioner’s] case,” to conclude that petitioner likely suffered

from a Table SIRVA. (Id. at 9-10.)

b. Respondent’s Expert – Brian Feeley, M.D.

In response to Dr. Natanzi, respondent filed a report by orthopedic surgeon Dr.

Brian Feeley. (ECF No. 35-1; Ex. A.) Dr. Feeley received his medical degree from

Stanford University in 2001. (Ex. B, p. 1.) He is licensed by the state of California, the

Drug Enforcement Administration, and certified by the American Board of Orthopaedic

Surgery. (Id.) Dr. Feeley has served as a medical professor at the University of

California, San Francisco since 2008, and is Chief of the university’s Sports Medicine

and Shoulder Service. (Id. at 1-2.) Dr. Feeley has published over 200 pieces of

medical literature including medical journal articles, review articles, and medical

textbook chapters. (Id. at 24-39.)

After reviewing petitioner’s medical records, Dr. Feeley explains that adhesive

capsulitis is evidenced by an initial onset of pain and stiffness while the shoulder

becomes very difficult to move over time. (Ex. A, p. 2.) It is most prevalent in

individuals between 40 and 60 years old, and more common in women than in men.

(Id. at 2-3) (citing Kiera Kingston, et al. Shoulder adhesive capsulitis: epidemiology and

predictors of surgery, 27 J. OF SHOULDER AND ELBOW SURGERY 1437 (2018) (Ex. C).)

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The hallmark sign of adhesive capsulitis, according to Dr. Feeley, is the inability to move

one’s shoulder, either on their own or with assistance. (Id. at 3.) Dr. Feeley explains

that adhesive capsulitis occurs in three stages. First, there is the “freezing” stage where

the pain slowly develops and range of motion decreases over time. (Id.) The freezing

stage typically lasts from six weeks to nine months. (Id.) Dr. Feeley refers to the

second stage as the “frozen” stage where pain may improve, but reduced range of

motion persists. This stage lasts four to six months. (Id.) Finally, in the remaining six

months to two years, the patient will enter the “thawing” stage where motion and any

remaining pain slowly resolves. (Ex. A, p. 3.)

Adhesive capsulitis is a clinical diagnosis typically determined by the hallmark

finding of decreased range of motion with no evidence of shoulder osteoarthritis on x-

ray or MRI. (Id.) Dr. Feeley explains that the causes of adhesive capsulitis are not fully

understood, but notes that diabetes, hypothyroidism, hyperthyroidism, Parkinson’s, and

heart disease have all been associated with increased risk. (Id.) (citing Anthony Ewald,

Adhesive Capsulitis: a review, 83 AM. FAMILY PHYSICIAN 417 (2011) (EX. D).)

According to Dr. Feeley, adhesive capsulitis is usually treated with a combination

of physical therapy and corticosteroid injections. (Ex. A, p. 3) (citing Chung-Yee Cecilia

Ho et al., The effectiveness of manual therapy in the management of musculoskeletal

disorders of the shoulder: a systematic review, 14 MANUAL THERAPY 463 (2009) (EX. E);

Wei Wang et al., Effectiveness of corticosteroid injections in adhesive capsulitis of

shoulder, 96 MED. (BALTIMORE) e7529 (2017) (Ex. F).) Rarely, patients undergo surgery

in the form of an arthroscopic debridement. (Id.) Dr. Feeley concludes that in most

cases, adhesive capsulitis completely resolves after two years following onset. (Ex. A,

p. 3) (citing Joseph D. Lamplot et al., Outcomes From Conservative Treatment of

Shoulder Idiopathic Adhesive Capsulitis and Factors Associated With Developing

Contralateral Disease, 9 ORTHOPAEDIC J. OF SPORTS MED. 2325967118785169 (2018)

(EX. G).)

Based on petitioner’s clinical presentation, Dr. Feeley opines that petitioner likely

suffered from adhesive capsulitis. (Id.) Dr. Feeley’s conclusion is specifically based on

the fact that petitioner presented with minimal pain and loss of motion; and was

diagnosed with impingement which is “a common finding in patients [with frozen

shoulder] who are initially mis-diagnosed . . . .” (Ex. A, pp. 3-4.) After his initial

presentation, petitioner progressively lost range of motion and developed sharp pain in

his left shoulder, signs that Dr. Feeley opines are consistent with adhesive capsulitis.

Dr. Feeley also notes that petitioner’s treating physicians diagnosed petitioner with

adhesive capsulitis, but opines that the temporal association with petitioner’s vaccine

was likely coincidental. (Id. at 4.) Finally, Dr. Feeley explains that petitioner’s anatomic

findings on MRI are inconsistent with those that would be expected in a SIRVA case,

but are consistent with non-specific findings seen in frozen shoulder cases. (Id.)

Dr. Feeley notes that a 2017 review of shoulder injuries following vaccination

identified 45 reported cases of SIRVA, with a majority of the injuries being diagnosed

as bursitis and occurring within 48 hours of vaccination. (Id.) (citing Martín Arias et al.,

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Risk of bursitis and other injuries and dysfunctions of the shoulder following

vaccinations, 35 VACCINE 4870 (2017) (Ex. H).) Specifically, Dr. Feeley notes that:

As far as the latency period is concerned, 6 in 8 FEDRA patients

complained of increasing severity pain starting within the first 24 h[ours] or

few days (4-7) post-vaccination, and 2 reported pain within 2 months. The

systematic review [which identified 37 cases] showed that the patients had

immediate pain or pain arising within the first 24 h[ours] post-vaccination in

81.8% of cases, while the remaining 18.9% , they gave pain within the 4

first days. The pain was of increasing severity and caused shoulder and

mobility restriction.

(Ex. A, p. 4) (quoting Arias supra at Ex. H.)

Dr. Feeley does note, however, that there is some literature that presents a link

between vaccines and frozen shoulder. In one case review, Saleh et al. observed three

cases of vaccine-related frozen shoulder. (Ex. A, p. 4) (citing Zeina M. Saleh et al.,

Onset of Frozen Shoulder Following Pneumococcal and Influenza Vaccinations, 14 J.

OF CHIROPRACTIC MED. 285 (2015) (Ex. I).) However, Dr. Feeley notes that in these

cases, onset occurred within 24 hours. (Id.) Dr. Feeley cites a second case report by

Degreef and Debeer of a patient who experienced adhesive capsulitis with acute onset

following flu and Hepatitis A vaccinations. (Ex. A, p. 4) (citing Lise Degreef & Philippe

Debeer, Post-vaccination Frozen Shoulder Syndrome. Report of 3 cases, 112 ACTA

CHIRURGICA BELGICA 447 (2012) (Ex. J).) Dr. Feeley further argues that because Black

et al. found that shoulder pain was equally common before and after hepatitis A

vaccination, “it is not likely that a vaccination causes frozen shoulder.” (Ex. A, p. 4)

(citing Steven Black et al., A post-licensure evaluation of the safety of inactivated

hepatitis A vaccine (VAQTA®, Merck) in children and adults, 22 VACCINE 766 (2004)

(Ex. K).) Finally, Dr. Feeley opines that because Trollomo et al found that intraarticular

injections are safe, cause no side effects, and induced immunity, “it strongly suggests

that intraarticular injection is safe and [does] not elicit a negative response.” (Ex. A, pp.

4-5) (citing Christina Trollmo et al., Intra-articular immunization induced strong systemic

immune response in humans, 82 CLINICAL AND EXPERIMENTAL IMMUNOLOGY 384 (1990)

(Ex. L).)

Dr. Feeley relies on a statement from the American Academy of Orthopaedic

Surgeons (“AAOS”) reading in part that “[m]ost of these associations between

immunization and shoulder pathology will be coincidental, even if they are perceived as

causal.” (Ex. A, p. 5.) The AAOS concluded that roughly one million people

inaccurately associate dormant shoulder conditions with vaccinations. (Id.) Dr. Feeley

believes that the AAOS statement “strongly concludes that there is a high risk of

erroneous diagnosis and that vaccine administration is merely coincidental with the

onset of common shoulder pathologies.” (Id.)

Dr. Feeley agrees with Dr. Natanzi that petitioner’s shoulder injury from when he

was 14 years old is unrelated to his frozen shoulder. (Id.) However, Dr. Feeley

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explains that the biceps tendonitis observed on petitioner’s imaging and exam is “rarely,

if ever documented in the [SIRVA] literature.” Further, Dr. Feeley opines that

petitioner’s MRI only revealed non-specific findings which would be found in many

patients. Finally, although petitioner’s subacromial bursitis is consistent with SIRVA, Dr.

Feeley believes that if it were vaccine-associated, it would have likely resolved within

weeks of the vaccination. (Id.) Dr. Feeley concludes by explaining that adhesive

capsulitis is often attributed to some causal event, but that there is limited evidence

suggesting that the injury can be linked to vaccinations. (Id.)

Dr. Feeley also suggests that petitioner’s pain did not occur within 48 hours of his

vaccination because petitioner did not report pain until one month after vaccination.

(Ex. A, p. 6) (citing Gokcan Okur, Kimberly A. Chaney & Laurie M. Lomasney, Magnetic

resonance imaging of abnormal shoulder pain following influenza vaccination, 43

SKELETAL RADIOLOGY 1325 (2014) (Ex. M).)

Due to the fact that petitioner postponed treatment, showed no signs or

symptoms of bursitis at his initial visit, had progressive loss of motion consistent with

adhesive capsulitis, and experienced success with treatment for adhesive capsulitis, Dr.

Feeley ultimately concludes that instead of a SIRVA, petitioner suffered adhesive

capsulitis unrelated to his vaccination. (Ex. A, p. 6.)

IV. Analysis

In this case, petitioner has alleged a “Table Injury.” In these cases, petitioners

must show that they suffered an injury associated with the vaccination in question, as

described by the Vaccine Injury Table. If the injury arose within the specified period of

time, the vaccination is presumed to have caused the Table Injury. § 300aa-

13(a)(1)(A); § 300 aa-11(c)(1)(C)(i); § 300aa-14(a); § 300aa-13(a)(1)(B). Petitioner

bears a preponderance of the evidence burden of proof. § 300aa-13(a)(1)(A

Petitioner has alleged that he suffered a SIRVA caused by his influenza

vaccination. The Vaccine Injury Table lists SIRVA as a compensable injury if it occurs

within 48 hours of administration of an influenza vaccine. § 300aa-14(a) as amended

by 42 C.F.R. § 100.3(a). The Act’s “Qualifications and aids in interpretation” (“QAI”)

provide specific guidelines used to evaluate Table Injury SIRVA claims. See 42 C.F.R.

§ 100.3(c)(10). To demonstrate the presence of a SIRVA, petitioner must show: (i)

there is “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) that

“onset of pain occurred within the specified timeframe,” i.e. within 48 hours; (iii) that

“pain and reduced range of motion are limited to the shoulder in which the intramuscular

vaccine was administered”; and (iv) that “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(a); 42 C.F.R. § 100.3(c)(10). If petitioner can prove that his injury meets

these elements by preponderant evidence, he will be entitled to compensation unless

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the government can show the injury was caused by a factor unrelated to vaccination. §

300aa-13(a)(1)(B).

The process for making determinations in Vaccine Program cases regarding

factual issues begins with consideration of the medical records. § 300aa-11(c)(2). The

special master is required to consider “all [ ] relevant medical and scientific evidence

contained in the record,” including “any diagnosis, conclusion, medical judgment, or

autopsy or coroner's report which is contained in the record regarding the nature,

causation, and aggravation of the petitioner's illness, disability, injury, condition, or

death,” as well as “the results of any diagnostic or evaluative test which are contained in

the record and the summaries and conclusions.” § 300aa-13(b)(1). However, Special

Masters are not bound by any “diagnosis, conclusion, judgement, test result, report, or

summary” contained in the medical records and must instead reach a decision based on

“the record as a whole” and “consider the record and the course of the injury, disability,

illness, or condition until the date of judgement . . .” § 300aa-13(a)(1) and (b)(1). The

Special Master “may find the first symptom or manifestation of onset or significant

aggravation of an injury, disability, illness, condition, or death described in a petition

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.” § 300aa-13(b)(2).

Medical records ordinarily “warrant consideration as trustworthy evidence.”

Cucuras v. Sec’y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed.Cir.1993).

Where subsequent testimony conflicts with contemporaneous medical records, special

masters frequently accord more weight to the medical records. See, e.g., Reusser v.

Sec’y of Health & Human Servs., 28 Fed. Cl. 516, 523 (1993) (“[W]ritten documentation

recorded by a disinterested person at or soon after the event at issue is generally more

reliable than the recollection of a party to a lawsuit many years later.”); See also

Vergara v. Sec’y of Health & Human Servs., 08-882V, 2014 WL 2795491, *4 (Fed. Cl.

Spec. Mstr. May 15, 2014) (“Special Masters frequently accord more weight to

contemporaneously-recorded medical symptoms than those recorded later in medical

histories, affidavits, or trial testimony.”). However, special masters are cautioned against

favoring contemporaneous records “reflexively” and must not overemphasize individual

records at the expense of a comprehensive evaluation of the entire record. Shapiro v.

Sec’y of Health & Human Servs., 101 Fed. Cl. 532, 539-40 (2011). “Medical records

are only as accurate as the person providing the information.” Parcells v. Sec’y of

Health & Human Servs., No. 03-1192V, 2006 WL 2252749, at *2 (Fed. Cl. Spec. Mstr.

July 18, 2006).

There are situations in which compelling oral testimony may be more persuasive

than written records, such as where records are deemed to be incomplete or inaccurate.

Campbell v. Sec'y of Health & Human Servs., 69 Fed.Cl. 775, 779 (2006) (“like any

norm based upon common sense and experience, this rule should not be treated as an

absolute and must yield where the factual predicates for its application are weak or

lacking”); Lowrie v. Sec'y of Health & Human Servs., No. 03–1585V, 2005 WL 6117475,

at *19 (Fed. Cl. Spec. Mstr. Dec. 12, 2005) (“[w]ritten records which are, themselves,

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inconsistent, should be accorded less deference than those which are internally

consistent”) (quoting Murphy, 23 Cl.Ct. at 733). However, when witness testimony is

offered to overcome the presumption of accuracy afforded to contemporaneous medical

records, such testimony must be “consistent, clear, cogent, and compelling.” Sanchez v.

Sec'y 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)), mot. for rev. denied, 142

Fed. Cl. 247, 251-52 (2019), vacated on other grounds and remanded, 809 Fed. Appx.

843 (Fed Cir. 2020).

a. 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

When petitioner first sought treatment for his alleged SIRVA with Dr. Brennan on

November 9, 2016, he reported “an old history of trauma to his shoulder.” (Ex. 2, p. 1.)

However, petitioner explained in his affidavits that this injury occurred when he was 14

years old and resolved without any pain. (Exs. 5-7, 10.) Dr. Brennan recorded the prior

shoulder complaint as “recovered nicely” and as having “no pain.” (Ex. 2, p. 1.)

Additionally, Dr. Brennan confirmed in his Review of Systems that petitioner had no

“chronic” joint pain. (Id.) Further, both experts in this case agree that petitioner’s earlier

shoulder injury is unrelated to his frozen shoulder. (See Ex. 8, pp. 8-9; Ex. A, p. 5.)

Accordingly, I find by preponderant evidence that petitioner had no history of shoulder

dysfunction prior to his vaccination that would explain the alleged signs, symptoms,

examination findings, and/or diagnostic studies occurring after vaccine injection.

b. Onset of pain occurred within the specified timeframe (48 hours)

When petitioner first sought treatment from Dr. Brennan on November 9, 2016,

about one month post-vaccination, onset of his shoulder pain was not specifically

discussed except to note that petitioner’s left shoulder pain began “recently.” (Ex. 2, p.

1.) A follow up appointment with Dr. Brennan was entirely silent regarding onset. (Id. at

5-8.) Petitioner then sought treatment from Dr. Schrank on March 9, 2017, with a chief

complaint of pain and stiffness in the left shoulder. (Id. at 9-12.) Dr. Schrank recorded a

history of “progressive loss of motion over the past 5 months.” (Id. at 9.) Five months

prior to March 9, 2017, is October 9, 2016, which is two days or 48 hours post-

vaccination. Shortly thereafter, petitioner presented for a physical therapy evaluation.

(Ex. 3, p. 1.) At that time the history he provided noted that petitioner “noticed onset of

pain and stiffness shortly after [receiving] a flu vaccine.” (Id.) Thereafter, several follow

up visits were again silent as to onset. Petitioner averred that the onset of his shoulder

pain began “the next day” following his vaccination. (Ex. 10, p. 2.) Upon my review of

the complete record, there is not a single encounter record in petitioner’s medical

11

records that is incompatible with onset of shoulder pain occurring within 48 hours of

vaccination. 4

In light of the above, there is preponderant evidence that onset of petitioner’s left

shoulder pain began within 48 hours of petitioner’s October 7, 2016 flu vaccination.

Respondent offers several arguments to the contrary, but, especially in the context of

this record, these arguments would have the effect of elevating petitioner’s burden

above a preponderance of the evidence.

Respondent argues that “there are no objective findings from a treating medical

professional documenting the presence of shoulder pain in the 48 hours following

vaccination.” (ECF No. 42, p. 10.) Respondent acknowledges that some of petitioner’s

medical records directly relate onset of his pain to “shortly after” his vaccination but

dismisses this as a belated “self-report.” (Id.) Respondent’s argument is inconsistent

with the Vaccine Act insofar as the statute instructs that the special master may find the

time period for the first symptom or manifestation of onset required for a Table Injury is

satisfied “even though the occurrence of such symptom or manifestation was not

recorded or was incorrectly recorded as having occurred outside such a period.”

§300aa-13(b)(2). Moreover, the Federal Circuit has observed, albeit in a different

context, that “[i]ndeed, for many medical symptoms or events – such as a headache

and other pain, dizziness, nausea, and vomiting – the patient’s or a parent’s testimony

may be the best, or only, direct evidence of their occurrence. Medical records related to

those symptoms would likely be based on the statements of those who experienced

them.” James-Cornelius on Behalf of E. J. v. Sec'y of Health & Human Servs., 984 F.3d

1374, 1380 (Fed. Cir. 2021) (emphasis added). Years of adjudicating SIRVA claims

demonstrates that respondent’s search for objective findings within 48 hours of

vaccination is not reflective of real-world medical care. E.g. Smallwood v. Sec’y of

Health & Human Servs., No. 18-291, 2020 WL 2954958, at *10 (Fed Cl. Spec. Mstr.

Apr. 29, 2020) (Chief Special Master noting that “[i]t is often common for a SIRVA

petitioner to delay treatment, thinking his/her injury will resolve on its own.”)

Respondent also argues that petitioner’s testimonial evidence is “at odds” with

his medical records and prior affidavits in that he averred in later affidavits that onset of

his shoulder pain began within 24 hours of vaccination whereas the prior records and

affidavits were silent as to any connection between his injury and vaccination. (ECF No.

42, pp. 10-11.) Respondent stresses that “contemporaneous medical records should

generally be accorded more weight than testimony, particularly conflicting testimony.”

(Id. at 10.) Respondent is correct that contemporaneous medical records are deserving

of significant weight. Respondent is incorrect, however, that petitioner’s testimony is “at

odds” with his contemporaneous medical records. It is well established in this program

that medical records must be interpreted with the understanding that they “typically

4 Petitioner’s physical therapy record does include a notation indicating that onset was “10/15/2016,”

which would be about one week post-vaccination. (Ex. 3, p. 1.) However, the more detailed history of

present illness identifies onset as occurring “shortly after” the flu vaccine without identifying the date of

vaccination or discussing a date certain for onset. Considering the physical therapy record as a whole

and in the context of the record as a whole, the descriptive portion of the document, which places onset in

relation to vaccination, carries more weight than the specific onset date that is otherwise unexplained.

12

record only a fraction of all that occurs.” Murphy v. Sec’y of Health & Human Servs., 23

Cl. Ct. 726, 733 (1991) (quoting Clark v. Sec’y of Health & Human Servs., No. 90-45V,

slip op. at 3, 1991 WL 57051 (Cl. Ct. Spec. Mstr. Mar. 28, 1991).) Accordingly, “the fact

that reference to an event is omitted from the medical records may not be very

significant.” Id. There is no presumption that medical records are complete. Kirby v.

Sec’y of Health & Human Servs., 997 F.3d 1378, 1383 (Fed. Cir. 2021). The fact that

many of petitioner’s medical records failed to make any notation as to onset at all is

much less significant than if those records had contained a notation of onset occurring

at some other time. Respondent stresses the number of instances where onset is not

recorded (ECF No. 42, p. 11 (citing seven orthopedic visits at Ex. 2, pp. 1-3 5, 9, 13, 15,

18, 20, 23, 25)); however, most of the encounters cited by respondent are follow up

appointments with the same medical provider, making it far more likely that the omission

would be carried forward and far less likely that initial onset would be revisited.

Notably, however, petitioner’s medical records are not entirely silent regarding

onset. Respondent rejects notations such as “recently,” “over the past 5 months,” or

“shortly after” vaccination, as inadequate descriptors because they “do not specify that

the pain began within 48 hours of vaccination.” (ECF No. 42, p. 11.) However, the fact

that the medical records are imprecise does not automatically render them contradictory

to petitioner’s more specific testimony. Nor should respondent have the expectation

that patients or treating physicians will specifically conform their language to the precise

terms of the Vaccine Injury Table. If petitioner reported to his physical therapist that

pain began “the next day” following his vaccination as stated in his affidavit (Ex. 10, p.

2) that is easily paraphrased to “shortly after” vaccination as appears in his medical

record (Ex. 3, p. 1). Without more, it is not reasonable to parse these two statements as

being inconsistent. And, as noted above, petitioner’s March 9, 2017 report of a 5-month

history of symptoms does place onset at 48 hours post-vaccination as a matter of timing

regardless of whether vaccination was specifically referenced. (Ex. 2, p. 9.) Upon

consideration of this record as a whole, my conclusion is that petitioner’s medical

records, while vague, are in harmony with petitioner’s affidavit testimony and adequate

to place onset of shoulder pain within 48 hours of vaccination when combined with

petitioner’s sworn statement. Accord Williams v. Sec’y of Health & Human Servs., No.

17-1046V, 2020 WL 3579763, at *5 (Fed. Cl. Spec. Mstr. Apr. 1, 2020) (finding that

“based on the record as a whole, I find the notations characterizing onset as ‘since,’

‘after receiving,’ ‘following’, and ‘very soon after’ injection are best understood as

indicating onset was effectively immediate, or within 48 hours of, vaccination.”)

Respondent also makes two additional arguments going specifically to the weight

of petitioner’s affidavit testimony. First, respondent argues that petitioner’s March 21,

2017 report to his physical therapist came about because petitioner had conducted his

own research into the possible causes of his shoulder pain. (ECF No. 42, p. 11 (citing

Ex. 10, p. 2).) Notably, however, petitioner’s contemporaneous medical records contain

some evidence placing onset at about the time of vaccination even prior to the point at

which petitioner specifically invoked his vaccination as a possible cause of his pain to

his physical therapist. (See Ex. 2, p. 9 (reporting 5-month history of symptoms on March

9, 2017) and Ex. 2, p. 1 (characterizing onset as “recent” as opposed to chronic as of

13

November 9, 2016).) And, in any event, respondent has not articulated why the fact of

petitioner having conducted research into the causes of his shoulder pain is suspect on

this record. Accord Smallwood, 2020 WL 2954958 at *10 (noting that “[r]espondent

references [p]etitioner’s internet search as evidence which undermines his claim of a

SIRVA injury. However, it is logical to assume [p]etitioner may have discounted his

shoulder injury until educating himself through interest research regarding SIRVA.”)

Second, respondent argues that petitioner’s recollection is unreliable because his

last affidavit suggests confusion as to the dates of certain medical appointments. (ECF

No. 42, p. 11.) The affidavit at issue was signed in April of 2020, more than three years

after the events described. Respondent is correct that this has some bearing on the

reliability of petitioner’s overall recollection. However, recalling the dates of specific

medical appointments is not necessarily comparable to recalling the date a painful injury

occurred. And, in any event, for all the reasons discussed above, petitioner’s specific

recollection that onset of his shoulder pain began the day after his vaccination is

corroborated by contemporaneous medical records and the outcome in this case does

not turn exclusively on petitioner’s recollection

Respondent’s expert also relies on petitioner’s one-month delay in seeking

treatment to suggest that petitioner’s onset was outside the 48-hour SIRVA window.

(Ex. A, p. 6.) However, prior decisions by myself and other special masters have found

that postponing treatment for a limited time is not per se dispositive of when onset

occurred. See e.g., Lang v. Sec’y of Health & Human Servs., No. 17-995V, 2020 WL

7873272 (Fed. Cl. Spec. Mstr. Dec. 11, 2020); Forman-Franco v. Sec’y of Health &

Human Servs., No. 15-1479V, 2018 WL 1835203 (Fed. Cl. Spec. Mstr. Feb. 21, 2018);

Tenneson v. Sec’y of Health & Human Servs., No. 16-1664V, 2018 WL 3083140 (Fed

Cl. Spec. Mstr. Mar. 30, 2018), mot. rev. denied 142 Fed. Cl. 329 (2019); and Gurney v.

Sec’y of Health & Human Servs., No. 17-481V, 2019 WL 2298790 (Fed. Cl. Spec. Mstr.

Mar. 19, 2019). When delays in seeking treatment have contributed to dismissals of

SIRVA claims, it was usually because the existing contemporaneous medical records

were inconsistent with petitioner’s allegation of immediate post-vaccination onset. See

e.g., Lavender v. Sec’y of Health & Human Servs., No. 18-1921V, 2021 WL 667187 at

*9-11 (Fed. Cl. Spec. Mstr. Jan. 25, 2021); Small v. Sec’y of Health & Human Servs.,

No. 15-478V, 2019 WL 6463985, at *11 (Fed. Cl. Spec. Mstr. Nov. 1, 2019), review

denied, 2020 WL 918799 (Fed. Cl. Jan. 27, 2020); Demitor v. Sec’y of Health & Human

Servs., No. 17-564V, 2019 WL 5688822, at *10 (Fed. Cl. Spec. Mstr. Oct. 9, 2019).

Delays in seeking treatment have also contributed to dismissals when petitioners have

failed to report their symptoms at doctor visits for extended periods following their

vaccination. See, e.g., Duesterheft v. Sec’y of Health & Human Servs., No. 18-08V,

2021 WL 1097707 at *6-9(Fed. Cl. Spec. Mstr. Feb. 24, 2021); see also Small, supra.

Here, however, I do not find that petitioner’s initial pattern of treatment constituted any

meaningful delay in seeking treatment. Petitioner only waited one month before

seeking treatment, he was not seen by any other healthcare providers between his

vaccination and reporting his shoulder pain to Dr. Brennan, and he did not submit any

records which contradict his allegation of onset.

14

Accordingly, I find by preponderant evidence that petitioner’s shoulder pain

occurred within 48 hours of his October 7, 2016 flu vaccination.

c. Pain and reduced range of motion are limited to the shoulder in

which the intramuscular vaccine was administered

Respondent does not dispute that petitioner’s pain and reduced range of motion

were confined to his left shoulder. Petitioner’s medical records are clear on this question

as well. None of petitioner’s medical records identify any other musculoskeletal

complaint. Nor do any of petitioner’s medical records suggest the presence of any other

type of problem, such as radiculopathy from the neck, that could indicate a different

etiology for petitioner’s shoulder pain. Dr. Feeley likewise did not identify any suspicion

that petitioner’s pain and reduced range of motion extended beyond his left shoulder.

Thus, I find that there is preponderant evidence showing that petitioner experienced

pain and reduced range of motion confined to his left shoulder.

d. 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)

It is undisputed that petitioner was diagnosed with and suffered from adhesive

capsulitis subsequent to vaccination. Petitioner and respondent agree on this point, as

do petitioner’s treating physicians, and the experts in this case. (See ECF No. 40, pp.

2-4; ECF No. 42, pp. 12-13; Ex. 2, pp. 11, 30; Ex. 3, p. 2; Ex. A, pp. 3-4; Ex. 8, p. 9.)

Respondent has not identified any other condition, apart from adhesive capsulitis, that

could explain petitioner’s symptoms. 5 Nonetheless, respondent argues incorrectly that

because petitioner’s condition is explained by his adhesive capsulitis diagnosis, he is

therefore disqualified from claiming a Table SIRVA. (ECF No. 42, p. 12.)

As respondent stresses, “SIRVA is an injury defined by administrative

rulemaking” (ECF No. 42, p. 13) rather than constituting a medical diagnosis in itself. 6

Although deltoid bursitis is the specific condition that has been most clearly associated

with vaccine-related shoulder injuries, the QAI definition of SIRVA was specifically

drafted to encompass shoulder dysfunction beyond that condition. Because SIRVA is

by definition, an unspecified “injury to the musculoskeletal structures of the shoulder

(e.g. tendons, ligaments, bursae, etc.),” the term encompasses a variety of more

specific shoulder injuries and cannot be limited to bursitis. See 42 C.F.R. §100.3(c)(10).

In fact, the proposed rulemaking defining SIRVA specifically includes adhesive

5 There was a reference in petitioner’s medical records to a SLAP tear, but respondent did not argue that

this condition explains petitioner’s symptoms and further conceded that the presence of a SLAP tear was

not supported by petitioner’s MRI. (ECF No. 42, p. 12, n. 9.)

6 This may, in fact, be changing. Although the most common expectation is that those suffering SIRVA

will be diagnosed with specific shoulder pathologies rather than “SIRVA,” in some instances the “SIRVA”

concept is being used by treating physicians as a diagnosis. See Lang, 2020 WL 7873272 at n. 3.

15

capsulitis as a condition falling within the scope of “SIRVA.” 7 Proposed Rulemaking,

2015 WL 4538923, at *45136; See also Gurney v. Sec’y of Health & Human Servs.,

No.17-481V, 2019 WL 2865490, at *7 (Fed. Cl. Spec. Mstr. Apr. 24, 2019) (finding that

“the timing and course of petitioner’s adhesive capsulitis remains consistent with a post-

vaccination sequela to her SIRVA as described in the [Atanasoff study] and as

envisioned by the rulemaking which created SIRVA as a Table Injury.”).

Although I previously noted that findings of shoulder dysfunction beyond deltoid

bursitis do not per se defeat a SIRVA claim, I also acknowledged that may theoretically

be possible for evidence of shoulder dysfunction to be incompatible with SIRVA. Lang,

2020 WL 7873272 at *12-14 (finding that evidence of impingement syndrome is

compatible with SIRVA). In that context, however, I suggested that the question would

become “whether petitioner’s own clinical history indicates that [the] shoulder pathology

wholly explains [the] symptoms independent of vaccination.” Id. at *13.

Here, apart from the timing of initial onset, which is addressed separately above,

neither respondent nor Dr. Feeley have suggested that petitioner’s own clinical

presentation of adhesive capsulitis is in itself incompatible with SIRVA or SIRVA

sequela. 8 Rather, Dr. Feeley contends that petitioner’s adhesive capsulitis is likely

“coincidental” to vaccination because there is only limited scientific literature linking

adhesive capsulitis to vaccination and adhesive capsulitis is an otherwise known

medical condition. (Ex. A, pp. 2-4.) Respondent in turn argues:

7

Respondent’s proposed rulemaking stated in relevant part:

The IOM reviewed the scientific and medical literature finding evidence that convincingly

supports a causal relationship between vaccine injection (with a needle) into an arm and

deltoid bursitis. The report noted that the published VICP case series (Atanasoff et al.), as

described, were clinically consistent with deltoid bursitis. The VICP case series found that

93 percent of patients had the onset of shoulder pain within 24 hours of vaccine

administration and 54 percent had immediate pain following vaccine injection. The VICP

case series found several diagnoses, beyond deltoid bursitis, that resulted in shoulder pain

following vaccination, including tendonitis, impingement syndrome, frozen shoulder

syndrome, and adhesive capsulitis. Another case series reported two cases of shoulder

pain, weakness and reduced range of motion following vaccination with onset of symptoms

within 48 hours of vaccination. [Bodor M, Montalvo E, Vaccination related shoulder

dysfunction, Vaccine 25(2007) 585-587.] In order to capture the broader array of potential

injuries, the Secretary proposes to add SIRVA for [certain influenza] vaccines that are

administered intramuscularly through percutaneous injection into the upper arm.

Proposed Rulemaking, 2015 WL 4538923, at *45136 (emphasis added).

8 Dr. Feeley does indicate that “[t]he other anatomic findings of the shoulder MRI do not correlate to

findings that would be expected in a SIRVA case, but are consistent with the nonspecific findings seen in

frozen shoulder.” (Ex. A, p. 4.) Again, however, although Dr. Feeley is discussing petitioner’s own MRI,

his conclusion is based on the broader idea that adhesive capsulitis is fundamentally a separate

phenomenon that cannot overlap with SIRVA, a proposition that is not supported by respondent’s

rulemaking or prior program caselaw. The fact that Dr. Feeley agrees petitioner’s MRI is consistent with

adhesive capsulitis supports rather than defeats petitioner’s Table Injury claim. Proposed Rulemaking,

2015 WL 4538923, at *45136. In any event, under the terms of the QAI, no specific MRI findings have

been identified as necessary to demonstrating the presence of a SIRVA.

16

[A]s explained by the recent position statement of the American Academy

of Orthopedic Surgeons quoted by Dr. Feely in his report, given the

prevalence of both vaccinations and shoulder pathologies, there is a high

risk that individuals like petitioner, who first notice shoulder pain at some

point after receiving a vaccination, may misperceive their symptoms as new

and inaccurately believe that the vaccination was the cause of their shoulder

injury. Petitioner does not address the issue of frozen shoulder or refute Dr.

Feeley’s conclusions in the context of his Table claim. He therefore has not

substantiated his assertion that there was no other condition present that

would explain his symptoms.

(ECF No. 42, pp. 12-13 (internal citations omitted).) In the present context, this

argument by respondent nonsensically seeks to place a burden upon petitioner to prove

a causal relationship between his vaccination and the injury constituting his Table Injury

claim in order to be able to benefit from the causal presumption he is entitled to under

the terms of the Vaccine Injury Table.

In light of the above, I find by preponderant evidence that no other condition or

abnormality is present that would explain the petitioner’s post-vaccination symptoms.

e. Factors unrelated to vaccination

Once petitioner has met his prima facie burden of demonstrating a Table Injury,

respondent may still prove the condition is “due to factors unrelated to the

administration of the vaccine described in the petition.” § 300aa-13(a)(1)(B). In this

case, respondent has not raised any issue of factors unrelated to vaccination apart from

what is discussed above.

V. Conclusion

For all the reasons discussed above, after weighing the evidence of record within

the context of this program, I find by preponderant evidence that petitioner suffered a

Table Injury of SIRVA following his October 7, 2016 flu vaccination as alleged. A

separate damages order will be issued.

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master

17