In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 17-598V

Filed: January 31, 2019

Unpublished

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

ROSS VINOCUR, *

*

Petitioner, * Ruling on Entitlement; Table Injury;

* Influenza (Flu) Vaccine; Shoulder 

v. * Injury Related to Vaccine Administration

* (SIRVA); Findings of Fact; 

SECRETARY OF HEALTH * Onset of Petitioner’s Shoulder Pain; 

AND HUMAN SERVICES, * Special Processing Unit (SPU)

* 

Respondent. *

*

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

Shaelene Wasserman, Muller Brazil, LLP, Dresher, PA, for petitioner.

Daniel Anthony Principato, U.S. Department of Justice, Washington, DC, for 

respondent.

FINDINGS OF FACT AND RULING ON ENTITLEMENT1

Dorsey, Chief Special Master:

On May 4, 2017, Ross Vinocur (“petitioner”) filed a petition for compensation 

under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et 

seq.,

2

(the “Vaccine Act” or “Program”) for a left shoulder injury, diagnosed as adhesive 

capsulitis, caused in fact by the influenza vaccination he received on November 9, 

2014. Petition at 1, ¶¶ 2, 8, 10 (ECF No. 1). The case was assigned to the Special 

Processing Unit (“SPU”).

 

1 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. 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, the undersigned 

agrees that the identified material fits within this definition, the undersigned will redact such material from 

public access. Because this unpublished ruling contains a reasoned explanation for the action in this 

case, undersigned is 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). 

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for 

ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 

300aa (2012).
2

During a fact hearing held on November 6, 2018 in Washington, D.C., the 

undersigned made factual findings regarding petitioner’s prior condition, the onset of his 

pain, scope of his pain and limited range of motion, and lack of other condition or 

abnormality. Pursuant to these findings, which are set forth in this ruling, the 

undersigned determined petitioner’s adhesive capsulitis meets the criteria for a Table 

shoulder injury related to vaccine administration (“SIRVA”) following receipt of the 

influenza vaccine.

3 Accordingly, the undersigned finds that petitioner is entitled to 

compensation. 

I. Procedural History

Along with the petition, petitioner filed the medical records required by the 

Vaccine Act. See Exhibits 1-4 (ECF No. 1); Statement of Completion (ECF No. 2); see 

also § 11(c)(2) (for a description of the required medical records). An initial status 

conference was scheduled for June 16, 2017.

During the call, petitioner’s counsel confirmed that all known and updated 

medical records had been filed. Order, issued June 16, 2017, at 1 (ECF No. 8). The 

staff attorney managing this SPU case suggested that a detailed affidavit from 

petitioner, describing his injury, particularly the onset of his pain and reason for delay in 

seeking treatment, would be helpful. Id. Petitioner filed his affidavit on August 1, 2017. 

(ECF No. 9). On December 20, 2017, respondent filed a status report indicating he 

intended to defend this case. (ECF No. 13). He requested to file his Rule 4 report by 

January 29, 2018. Id. 

In his Rule 4 report, respondent argued that compensation was not appropriate in 

this case because petitioner had failed to establish that he suffered a Table Injury or 

that his injury was caused by the influenza vaccination he received. Respondent’s Rule 

4 Report (“Rule 4 Report”) filed Jan. 29, 2018, at 3-5 (ECF No. 17). Regarding a Table 

SIRVA, respondent maintained “the record does not demonstrate that petitioner’s 

symptoms began within 48 hours after vaccination.” Id. at 3; see 42 C.F.R. § 

100.3(a)(XIV) and (c)(10)(ii) (requiring petitioner’s pain to have occurred within 48 hours 

of vaccination). He stressed that “[p]etitioner did not seek medical care until more than 

four months after vaccination.” Rule 4 Report at 3. Additionally, he asserted an earlier 

occurrence of frozen right shoulder suggests petitioner “may have underlying pathology 

and a propensity to develop adhesive capsulitis, not related to the vaccine” and that the 

hand tremors suffered by petitioner “suggests there could be some underlying 

neurological issue, which would also preclude petitioner from establishing causation 

under the Table.” Id. at 4. When arguing petitioner had not provided preponderant 

 

3 Effective for petitions filed beginning on March 21, 2017, SIRVA is an injury listed on the Table. See 

National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, Final Rule, 82 

Fed. Reg. 6294 (Jan. 19, 2017); National Vaccine Injury Compensation Program: Revisions to the 

Vaccine Injury Table, Delay of Effective Date, 82 Fed. Reg. 11321 (Feb. 22, 2017) (delaying the effective 

date of the final rule until March 21, 2017). The requirements for SIRVA following receipt of the influenza 

vaccination are set forth in the Vaccine Table (42 C.F.R. § 100.3(a)(XIV) (2017)) and the Table’s 

Qualification and Aids to Interpretation (“QAI”) for SIRVA (42 C.F.R. § 100.3(c)(10)). 
3

evidence to establish causation in fact, respondent again mentioned the four-month 

delay in treatment and possible alternative causes for petitioner’s injury Id. at 5. After 

reviewing the Rule 4 report, the undersigned directed the staff attorney to hold a call 

with the parties to inform them of her initial impressions and to discuss the next step in 

this case. 

During the call held on February 23, 2018, the staff attorney informed the parties 

that the undersigned believed petitioner’s history of adhesive capsulitis in the opposite 

(right) shoulder almost five years earlier would not preclude petitioner from establishing 

causation in this case. See Order, issued Mar. 6, 2018, at 1 (ECF No. 18). She added 

that the undersigned had further indicated she was not aware of a neurological problem 

which would cause both petitioner’s hand tremors and the SIRVA type of symptoms 

experienced by petitioner. Id. She informed petitioner’s counsel that the undersigned 

wished to see affidavits from petitioner and any lay witnesses addressing the onset and 

duration of his hand tremors and his left shoulder adhesive capsulitis and medical 

records related to his hand tremors, particularly any which show a diagnosis of this 

condition. Id. at 1-2. Respondent’s counsel added that any affidavits from non-family 

members would be particularly helpful. Id. at 2. 

A few months later, petitioner filed a second affidavit and additional medical 

records from his primary care provider (“PCP”), Arnold Koff, M.D. See Exhibits 6-7, filed 

Apr. 11, 2018 (ECF No. 19). The following month, he filed an affidavit from a co-worker, 

Chris Cobb. See Exhibit 8, filed May 2, 2018 (ECF No. 22). On May 22, 2018, the staff 

attorney held a status conference with the parties to inform them that the undersigned 

wished to hold a fact hearing in this case. Pre-Hearing Order, issued June 11, 2018, at 

1 (ECF No. 23). Deadlines for the parties’ pre-hearing submissions were set. Id. at 2. 

The fact hearing was held on November 6, 2018, in Washington, D.C. Petitioner 

was the only witness and testified remotely, utilizing video conferencing. Following the 

hearing, the parties were given 30 days to supplement the record, and two articles 

regarding SIRVA injuries were filed as Court Exhibits I and II.4 The matter of entitlement 

is now ripe for adjudication. 

II. Factual History

Initially, petitioner filed medical records from his PCP, Dr. Koff at Avon Health, 

from three years prior to vaccination as recommended for most adult vaccinees.5 See 

Exhibit 4 at 2 (requesting medical records from 11/1/11 to the present). Later, petitioner 

filed additional records from as early as October 2004. See Exhibit 7. 

 

4 These articles are S. Atanasoff et al., Shoulder injury related to vaccine administration (SIRVA), 28 

Vaccine 8049 (2010), filed as Court Exhibit I and M. Bodor and E. Montalvo, Vaccination Related 

Shoulder Dysfunction, 25 Vaccine 585 (2007), filed as Court Exhibit II.

5 See Guidelines for Practice under the National Vaccine Injury Compensation Program at 13-14, 

http://www.uscfc.uscourts.gov/sites/default/files/19.01.18%20Vaccine%20Guidelines.pdf (last visited on 

Jan. 15, 2019). 
4

These earlier records show that petitioner was seen twice in 2004 and three 

times in 2006, for tightness in his chest, difficulty clearing his throat, several episodes of 

vertigo, hypothyroidism, and chronic sinusitis. See Exhibit 7. On October 26, 2004, he 

underwent a treadmill test (id. at 8) and was provided samples of Nexium in May 2006 

(id. at 10). In the records from the visits in 2006, it is noted that petitioner’s symptoms

did not prevent him from running and playing soccer. Id. at 11. 

Petitioner next visited his PCP on March 28, 2013, for an annual physical. 

Exhibit 4 at 4. In the history section of this record, petitioner’s long-term chest 

palpitations and chronic throat clearing are described. Also, listed is “mild trembling in 

[petitioner’s] right hand when grasping an object such as a coffee mug close to the 

body.” Id. It is recorded that petitioner has experienced this tremor “for more than 10 

years with no change.” Id. 

Petitioner received the influenza vaccination alleged as causal at the minute 

clinic in the CVS pharmacy on November 9, 2014. Exhibit 1 at 3-4. The vaccine record 

shows the vaccination was administered in petitioner’s left deltoid. Id. at 4. 

Following this vaccination, petitioner did not receive medical care until he sought 

treatment for his left shoulder adhesive capsulitis from Roy D. Beebe, M.D., an 

orthopedist at UConn Health Center, approximately four and one-half months later, on 

March 25, 2015. Exhibit 2 at 16. The record from that visit indicates petitioner had 

experienced three months of left shoulder pain since receiving the influenza vaccination 

in December 2014. His discomfort was described as gradually worsening until he 

experienced significant pain at night and at rest and a significant loss of motion. In this 

record, it is noted that petitioner previously suffered from adhesive capsulitis in his 

contralateral (right) shoulder. Id. 

Dr. Beebe performed a physical examination of petitioner’s left shoulder which 

revealed petitioner had mild diffuse tenderness, forward flexion to 80 degrees, 

abduction to 45 degrees, and no external rotation. Exhibit 2 at 16. He ordered x-rays of 

petitioner’s left shoulder which were normal, administered a cortisone injection, 

prescribed a narcotic opioid for nighttime, and ordered aggressive physical therapy 

(“PT”). Id. at 16-18; see also Exhibit 3 at 10 (Rx for PT). 

Petitioner attended 10 PT sessions at Magna Physical Therapy & Sports 

Medicine Center, LLC (“Magna PT”) in April 2015. Exhibit 3 at 11-20. At his first visit on 

April 2, 2015, petitioner reported that his symptoms started in November 2014, and that 

he believed they were caused by the “flu shot” he received. Id. at 7. Describing his 

pain as a low-level ache which had increased in the past three weeks, petitioner rated 

the severity of his pain at five out of ten currently, three out of ten at its best, and nine 

out of ten at its worst. Id. at 5, 8. In the PT record from this initial visit, it is noted that 

Dr. Beebe had diagnosed petitioner with left frozen shoulder and administered an

injection which had been “helpful for a few day[s].” Id. at 5. Petitioner reported that he 

had suffered from adhesive capsulitis in his right shoulder in 2010 which took 
5

approximately six months to resolve. Id. at 7, 11. Although he participated in PT for this 

earlier injury, he “did not complete his therapy due to frustration with chronicity.” Id. at 

11. Observing that petitioner’s current symptoms were consistent with left shoulder 

adhesive capsulitis, the physical therapist recorded impairments in petitioner’s range of 

motion (“ROM”), strength, and functionality. He recommended that petitioner attend PT

three times per week for four weeks. Id. at 12. 

At his last visit in April 2015, due to the level of his pain and increased discomfort 

following treatment, petitioner questioned whether he should continue with PT. Exhibit 

3 at 20. In response, the physical therapist “[d]iscussed [the] importance of relaxation 

during manual stretching” and increasing petitioner’s home exercise program (“HEP”). 

Id. He observed that petitioner had made good progress increasing his ROM but still 

showed significant guarding and pain at the end of his movement. After decreasing the 

amount of manual stretching performed during the session, the therapist noted that 

petitioner tolerated the treatment better. Id.

Towards the end of April 2015, petitioner visited his PCP, Dr. Koff, seeking his 

opinion on his left frozen shoulder. Exhibit 4 at 12. At that visit, petitioner reported that 

his pain started in November 2014 when he received the influenza vaccination. Noting 

that his pain had not relented, petitioner indicated that he began to have difficulty 

moving his shoulder two months ago. He informed Dr. Koff that Dr. Beebe had 

diagnosed him with frozen shoulder and prescribed oxycodone which he took only at 

night. He disclosed that he had experienced some improvement in ROM since starting 

PT two weeks ago. Id. Although not clearing indicated in these records, it appears Dr. 

Koff prescribed a different medication, piroxicam.6 See Exhibit 2 at 15 (record from later 

visit with Dr. Beebe). 

Petitioner returned to Dr. Beebe for follow-up regarding his left shoulder adhesive 

capsulitis on June 1, 2015. Exhibit 2 at 15. He reported that his pain had improved, but 

that he still had marked, although also improved, pain at night. He tried taking

meloxicam to facilitate better sleep but found it did not help. Upon examination, Dr. 

Beebe observed that petitioner’s forward flexion remained at 80 degrees, but his 

abduction had improved to 80 degrees and his external rotation had improved to 30 

degrees. He instructed petitioner to continue aggressive PT. Id. 

Petitioner was re-evaluated at Magna PT on June 4, 2015. Exhibit 3 at 21. In 

this record, it is noted that he had received PT in April 2015 but had not been treated for 

over a month due to travel and work. After seeing his orthopedist, he was referred 

again to PT. Petitioner’s pain and limited ROM continued but were described as 

improved. Id. 

 

6 Piroxicam is a nonsteroidal anti-inflammatory drug used for treatment of conditions such as rheumatoid 

arthritis and osteoarthritis. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND’S”) at 1450 (32th ed. 

2012). According to petitioner, this medication failed to alleviate his pain. Exhibit 6 at 6 (petitioner’s 

second affidavit); Testimony (“Tr.”) at 24. 
6

Petitioner attended five PT sessions in June and July 2015. Exhibit 3 at 21-27. 

At his last PT session on July 2, 2015, he reported that he “fe[lt] about the same.” Id. at 

27. Observing that petitioner still suffered from significant limitation in his external 

rotation, the therapist indicated petitioner would “continue to benefit from skilled PT to 

increase ROM and strength in order to maximize functional mobility.” Id. In addition to 

recommending additional PT, the therapist encouraged petitioner to continue his HEP. 

Id. 

Almost a year later, on May 26, 2016, petitioner was seen at UConn Health 

Urgent Care for a cough. There is no mention of any other condition, including 

petitioner’s left shoulder adhesive capsulitis. Exhibit 2 at 11-14. 

On August 11, 2016, petitioner visited his PCP, Dr. Koff, for his annual physical. 

Exhibit 4 at 20. At this visit, he indicated that he had “no further problems with [his]

shoulder.” Id. (all letters capitalized in the original). 

He returned to his PCP three months later, on November 10, 2016, to check on 

other conditions and to discuss recent bloodwork. Exhibit 4 at 24. The medical record 

from this visit reveals petitioner had full ROM and was not taking any medication but 

was avoiding sleeping on his left shoulder due to ongoing discomfort. This is the last 

medical record which mentions petitioner’s left shoulder injury. Id. 

Beginning with the record from petitioner’s March 28, 2013 visit, all medical 

records from petitioner’s PCP include an entry regarding his right-handed tremor. See 

Exhibit 4. In the most recent PCP record filed, from a visit on November 10, 2016, 

additional information is provided. It is noted that petitioner’s daughter developed a 

similar tremor at age 26 but that petitioner knows of no other relative with this condition. 

The record again mentions that the tremor remains unchanged but adds that it does not 

interfere with petitioner’s ability to write. Exhibit 4 at 24.7

III. Legal Standard for Entitlement

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). § 13(a)(1)(A). In making this determination, the special master or court should 

consider the record as a whole. § 13(a)(1). Petitioner’s allegations must be supported 

by medical records or by medical opinion. Id. 

 

7 This record also indicates petitioner has experienced the tremor for five to ten years. As the it was 

documented in 2013 that petitioner had suffered from the tremor for more than ten years, this later entry 

appears to be erroneous. Compare Exhibit 4 at 4 (entry from record dated March 28, 2013) with id. at 24 

(entry from record dated November 10, 2016). 
7

In addition to requirements concerning the vaccination received, the duration and 

severity of petitioner’s injury, and the lack of other award or settlement,8 a petitioner 

must establish that she suffered an injury meeting the Table criteria, in which case 

causation is presumed, or an injury shown to be caused-in-fact by the vaccination she 

received. § 11(c)(1)(C). 

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. § 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). The 

criteria establishing a SIRVA under the accompanying 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).

 

8

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). 
8

42 C.F.R. § 100.3(c)(10).

If, however, petitioner suffered an injury that either is not listed in the Table or did 

not occur within the prescribed time frame, she must prove that the administered 

vaccine caused injury to receive Program compensation. § 11(c)(1)(C)(ii) and (iii). In 

such circumstances, petitioner asserts a “non-Table or [an] off-Table” claim and to 

prevail, petitioner must prove her claim by preponderant evidence. § 13(a)(1)(A). The 

Federal Circuit has held that to establish an off-Table injury, petitioner must “prove . . . 

that the vaccine was not only a but-for cause of the injury but also a substantial factor in 

bringing about the injury.” Shyface v. Sec’y of Health & Human Servs., 165 F.3d 1344, 

1351 (Fed. Cir 1999). Id. at 1352. The received vaccine, however, need not be the 

predominant cause of the injury. Id. at 1351.

The Circuit Court has indicated that a petitioner “must show ‘a medical theory 

causally connecting the vaccination and the injury’” to establish that the vaccine was a 

substantial factor in bringing about the injury. Shyface, 165 F.3d at 1352-53 (quoting 

Grant v. Sec’y of Health & Human Servs., 956 F.2d 1144, 1148 (Fed. Cir. 1992)). The 

Circuit Court added that "[t]here must be a ‘logical sequence of cause and effect 

showing that the vaccination was the reason for the injury.’” Id. The Federal Circuit 

subsequently reiterated these requirements in a three pronged test set forth in Althen v. 

Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005). Under this test, 

a petitioner is required

to show by preponderant evidence that the vaccination 

brought about her injury by providing: (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. 

Id. All three prongs of Althen must be satisfied. Id. Circumstantial evidence may be 

considered, and close calls regarding causation must be resolved in favor of the 

petitioner. Id. at 1280.

 

IV. Fact Hearing

A. Applicable Legal Standard for Factual Findings

A petitioner must prove, by a preponderance of the evidence, the factual 

circumstances surrounding her claim. § 13(a)(1)(A). 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 & 
9

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). Contemporaneous medical records are presumed to be accurate. 

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

To overcome the presumptive accuracy of medical records testimony, a petitioner may 

present testimony which is “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)).

B. Affidavits and Testimony

Petitioner filed affidavits in August 2017 and April 2018. See Exhibits 5-6. In 

both, he indicated he received the influenza vaccination alleged as causal at the CVS 

Pharmacy on November 9, 2014. Exhibits 5 at ¶ 2; 6 at ¶ 2. In the earlier affidavit, 

petitioner indicates he suffered dull pain immediately upon vaccination which increased 

over the subsequent weeks and months. Exhibit 5 at ¶ 3. In the later affidavit, he 

describes his pain and stiffness as starting that night or by the next morning. Exhibit 6 

at ¶ 4. 

During the fact hearing, petitioner testified that he felt a burning pain upon 

injection, as though he “could feel the serum going in.” Tr. at 10. He stated that the 

injection was more painful than other vaccinations he had received. Id. When asked 

about the seemingly inconsistent information regarding the onset of his pain in his 

affidavits, petitioner indicated that he felt localized pain immediately upon injection and 

pain and stiffness more reminiscent of the symptoms he experienced in his right 

shoulder in 2010, by the next day. Tr. at 11. In both his testimony and later affidavit, 

petitioner indicated that, while being vaccinated, he was seated and the nurse, who was 

standing, administered the vaccination high in his left shoulder. Tr. at 10; Exhibit 6 at ¶ 

3. When asked to identify the exact location of the vaccination, petitioner pointed to an 

area “approximately one-inch below his shoulder on the lateral aspect of his left arm.” 

Tr. at 10. 

In his testimony and both affidavits, petitioner indicated he did not seek 

immediate medical treatment due to his earlier experience with adhesive capsulitis in 

his right shoulder which “seemed to go away only with the passage of time.” Exhibit 5 

at ¶ 4; accord. Exhibit 6 at ¶ 4; Tr. at 16-17. He testified that, during this time, he selftreated with over the counter medications and some of the stretching exercises he 

performed in 2010. Tr. at 15-16. When petitioner’s symptoms continued and became 

worse than those he experienced in 2010, he sought medical treatment from Dr. Beebe. 

Tr. at 17; Exhibit 5 at ¶ 4. Petitioner stated that he also “waited to see the same 

specialist doctor,” presumably Dr. Beebe who he saw on March 25, 2015. Exhibit 6 at ¶ 

5. He testified that by that time, “[his] arm was almost totally useless if [he] moved it at 

all . . . [and that he experienced] heightened pain with any type of movement.” Tr. at 17 
10

When asked, during both direct and cross examination, why he thought the 

medical record from his March 23, 2015 visit to Dr. Beebe identified the influenza 

vaccination as being administered in December and indicated he had suffered three, 

rather than four, months of left shoulder pain, petitioner surmised that he may have 

provided the erroneous information or that his information may have been vague and 

thus, mistakenly interpreted. Tr. at 17-18; 32-33. During cross examination, 

respondent’s counsel also asked about an entry in the medical records from petitioner’s 

April 23, 2015 visit to Dr. Koff which indicated he experienced difficulty moving his left 

shoulder beginning two months earlier. Tr. at 33-34; see Exhibit 4 at 12. In response, 

petitioner theorized that he may have been referring to a time when he experienced 

increased pain during movement. Tr. at 34. He testified that he did not know why he 

did not include any information regarding his immediate pain, upon injection, in his later 

affidavit, instead discussing only the timing of his pain and stiffness, which he indicated 

occurred that evening or the next morning. Tr. at 35. 

Throughout his testimony, petitioner described his condition and the effect it had 

on him. In response to questioning from respondent’s counsel, petitioner testified that, 

to his knowledge, he had not missed any soccer games due to his condition. Tr. at 37-

38. However, he pointed out that he is not a goalie and thus, would not be required to 

throw the ball. Tr. at 38. 

Following questioning by both counsel, the undersigned sought additional 

information regarding petitioner’s work and the cause of his right frozen shoulder in 

2010. Tr. at 39-40. When asked if he personally wrote the entries found on the intake 

form from his first PT session on April 2, 2015, stating that onset occurred in November 

2014 and the cause of his injury was the influenza vaccination he received, petitioner 

confirmed that he had. Tr. at 41-42; see Exhibit 3 at 7. 

Petitioner also filed an affidavit from a co-worker, Chris Cobb, in early May 2018. 

See Exhibit 8. Mr. Cobb indicates he has worked closely with petitioner for the last four 

and one-half years. Id. at ¶ 3. This means Mr. Cobb began working with petitioner in 

late 2013 or early 2014. In his affidavit, Mr. Cobb stated that petitioner informed him on 

multiple occasions in November 2014, that he had troubled sleeping due to his arm 

pain. Id. at ¶ 5. According to Mr. Cobb, after Thanksgiving, petitioner indicated that he 

“was having difficulty lifting his arm over his head and that his range of motion was 

painful.” Id. at ¶ 6. He mentioned the influenza vaccination at that time and, in early 

2015 told Mr. Cobb about the right shoulder symptoms he experienced previously. Id. 

at ¶¶ 6-7. 

C. Factual Findings

Respondent does not dispute that petitioner received the vaccination alleged as 

causal in his left deltoid on November 9, 2014. Rather, the primary disagreements in 

this case involve the timing of the onset of petitioner’s left shoulder injury and existence 

of prior and con-current conditions which respondent suggests may explain petitioner’s 

symptoms. 
11

1. Prior Condition

The first requirement under the QAI for a Table SIRVA is a lack of a history 

revealing problems associated with the affected shoulder which were experienced prior 

to vaccination and would explain the symptoms experienced after vaccination. 42 

C.F.R. § 100.3(c)(10)(i). Although petitioner experienced right shoulder adhesive 

capsulitis in 2010, there is no evidence of pain, inflammation, or dysfunction in his left 

shoulder prior to the influenza vaccine administration. Respondent mentions 

petitioner’s earlier right shoulder condition when arguing the existence of another 

condition which would explain petitioner’s symptoms9 but does not assert petitioner had 

any prior left shoulder issues. 

The undersigned finds there is no evidence that petitioner experienced any

issues with his left shoulder prior to vaccination. 

2. Onset of Pain

Regarding the onset of petitioner’s pain, in order to meet the definition of a Table 

SIRVA, petitioner must show that he experienced the first symptom or onset within 48 

hours of vaccination (42 C.F.R. § 100.3(a)(XIV)(B)) and that his pain occurred within 

that same 48-hour period (42 C.F.R. § 100.3(c)(10)(ii) (QAI criteria)). Respondent 

argues that compensation is not appropriate because “the record does not demonstrate 

that petitioner’s symptoms began within 48 hours after vaccination.” Rule 4 Report at 3. 

However, there are additional Vaccine Act provisions the undersigned finds instructive 

in this case. Under Section 13 of the Act, 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.” § 13(b)(2). “Such 

a finding may be made only upon demonstration by a preponderance of the evidence 

that the onset . . . occur within the time period described in the Vaccine Injury Table.” 

Id. 

As the undersigned stated at the fact hearing, multiple entries in the medical 

records as well as petitioner’s testimony and affidavits provide preponderant evidence 

that the onset of petitioner’s pain occurred within 48 hours of vaccination. Tr. at 45-46. 

The histories contained in the medical records from Magna PT and petitioner’s PCP, Dr. 

Koff, all indicate petitioner’s left shoulder pain began in November 2014 when he 

received the influenza vaccination. For example, on the intake form, completed by 

petitioner when first seen at Magna PT on April 2, 2015, petitioner indicated his current 

symptoms started in November 2014. Exhibit 3 at 7. He added that he believes his 

symptoms were caused by the “flu shot” he received. Id. This information is echoed in 

the record from the initial evaluation performed that day. Id. at 11. Additionally, that 

record indicates petitioner “initially noticed pain and restricted movement but over the 

past 3 weeks it has become especially bad.” Id. When seen by Dr. Koff later that 

 

9 The undersigned will discuss this argument further in Section IV.C.4. below. 
12

month, petitioner reported that his pain began in November 2014 when he was 

administered the influenza vaccine. Exhibit 4 at 12. Specifically, petitioner stated that 

he was having pain in his arm after receiving the flu shot “which has not gone away.” 

Id. (all letters capitalized in the original). 

Although these histories were provided by petitioner, they were given within six 

months of vaccination, when petitioner first sought treatment. As the Federal Circuit 

has noted, it is appropriate for a special master to give greater weight to evidence 

contained in medical records created closer in time to the vaccination, even if the 

information is provided as part of a medical history. Cucuras, 993 F.2d at 1528

(medical records are generally trustworthy evidence). The Circuit Court explained that 

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.

Id.

The only medical record containing an entry suggesting the onset of petitioner’s

pain was later is from petitioner’s initial visit to his orthopedist, Dr. Beebe, on March 25, 

2015. The history section of that record indicates petitioner reported “a three-month 

history of pain since he had a flu shot back in December.” Exhibit 2 at 16. It further 

indicates that “[s]ince that time, [petitioner] has had discomfort, which has gradually 

gotten worse to the point now [that petitioner has] significant pain at night and at rest 

and significant loss of motion.” Id. Thus, the record erroneously indicates petitioner 

had three, rather than four, months of pain and that he received the influenza 

vaccination in December, rather than November. However, it is important to note that 

petitioner still linked the onset of his pain to the vaccine administration. Additionally, 

petitioner testified that he may have provided the wrong information during this visit or 

that he may have provided vague information which led the individual who transcribed 

the history to list the duration of petitioner’s pain as three months and timing of 

vaccination as December 2014. Tr. at 17-18, 32-33. The undersigned finds either a

reasonable explanation regarding the source of the erroneous information. 

During his testimony petitioner also provided a reasonable explanation regarding 

the seemingly inconsistent information contained in his two affidavits regarding the 

onset of his pain. Compare Exhibit 5 at ¶ 3 with Exhibit 6 at ¶ 4. Petitioner testified that

he felt localized pain, which he described as burning, immediately upon injection and 

pain and stiffness more reminiscent of the symptoms he experienced in his right 

shoulder in 2010, by the next day. Tr. at 10-11.

The undersigned finds that the preponderance of the evidence, as well as 

petitioner’s testimony, establish that the onset of petitioner’s pain was immediate and 

thus, within 48 hours of vaccination. 
13

3. Scope of Pain and Limited ROM

To establish a Table SIRVA, petitioner’s pain and reduced ROM must be limited 

to the shoulder in which the vaccination alleged as causal was administered. 42 C.F.R. 

§ 100.3(c)(10)(iii). In the medical records filed, there is no indication that petitioner 

experienced pain or limited ROM in any area other than his left shoulder, and 

respondent does not dispute this fact. 

The undersigned finds there is sufficient evidence to show petitioner’s pain and 

reduced ROM to be limited to his left shoulder. 

4. Other Condition or Abnormality

The last QAI criteria for a Table SIRVA states that there must be no other 

condition or abnormality which would explain petitioner current symptoms. 42 C.F.R. § 

100.3(c)(10)(iv). Respondent argues that petitioner’s right-hand tremor and earlier right 

shoulder adhesive capsulitis suggest conditions which would explain petitioner’s left 

shoulder adhesive capsulitis. Rule 4 Report at 4. 

The medical records from petitioner’s PCP show petitioner suffered tremors in his 

right hand from at least 2003 to the present, evident when he attempted certain 

movements such as holding a coffee cup close to his body. Exhibit 4 at 4, 12, 24. In 

these entries, it is noted that petitioner’s condition, evident only in his right hand, 

remained unchanged. Id. In his affidavit, petitioner indicated Dr. Koff diagnosed the 

condition as “familial tremors, . . . said it wasn’t serious, . . . [and] offered to prescribe 

some medication that would take care of it if [he] wanted.” Exhibit 6 at 7. Because the 

condition was not serious and remained unchanged, petitioner declined Dr. Koff’s offer 

of medication. Id. The medical record from a November 2016 visit to Dr. Koff indicates 

petitioner’s daughter developed a similar tremor at age 26 but that petitioner knows of 

no other relative with this condition. Exhibit 4 at 24. When petitioner sought a second 

opinion regarding his left shoulder adhesive capsulitis from Dr. Koff in April 2015, Dr. 

Koff made no connection between petitioner’s right-hand tremors and his left shoulder 

adhesive capsulitis. Exhibit 4 at 12-19. The undersigned finds these records provide 

sufficient evidence to establish petitioner’s left shoulder adhesive capsulitis is unrelated 

to his right-hand tremors which is a benign condition in existence and unchanged for 

years. 

Regarding petitioner’s 2010 right shoulder adhesive capsulitis, there is a similar 

lack of evidence pointing to any connection between it and the left shoulder adhesive 

capsulitis suffered by petitioner in 2014-15. The medical records from Dr. Beebe and 

Magna PT contain numerous references to petitioner’s earlier right shoulder injury. 

Exhibits 2 at 16; 3 at 11, 17, 21. As with petitioner’s right-hand tremors, none of these 

medical providers mentions a link between the two episodes of adhesive capsulitis, 

separated by almost five years and occurring in different shoulders. At the fact hearing, 

petitioner testified that the cause of his right shoulder adhesive capsulitis was never 

determined. Tr. at 40. Adding that both he and his wife experienced adhesive capsulitis 
14

at that time, he theorized that this earlier episode may have been vaccine caused as 

well. Id. Although he could not recall if he received a vaccination at that time, in 2010, 

he suggested that it was possible since he and his wife would have gotten vaccinated at 

the same time. Id.

The undersigned finds there is preponderant evidence showing there is no 

condition, including petitioner’s right-hand tremors and past right shoulder adhesive 

capsulitis, which would explain the left shoulder adhesive capsulitis petitioner suffered in 

2014-15. 

V. Conclusion

Based on the record as a whole, including the testimony of petitioner, the 

undersigned finds by preponderant evidence that (1) petitioner had no prior problem 

with his left shoulder; (2) the onset of petitioner’s pain occurred within 48 hours, 

specifically immediately upon vaccination; (3) petitioner’s pain and reduced ROM were 

limited to his left shoulder; and (4) petitioner had no prior condition or abnormality that 

would explain his symptoms. Thus, the criteria for a Table Injury of SIRVA is satisfied, 

and causation is presumed.10 The undersigned finds that petitioner is entitled to 

compensation in this case. 

IT IS SO ORDERED.

s/Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master

 

10 Although the undersigned also made preliminary findings regarding causation at the fact hearing, 

finding sufficient preponderant evidence existed to establish causation, no further discussion regarding 

causation is needed. Tr. at 47-48.