1

In the United States Court of Federal Claims 

OFFICE OF SPECIAL MASTERS

No. 17-1905V

Filed: February 15, 2023

PUBLISHED

JEANNE MICHELLE FORREST, as 

special administrator of the estate of 

JOANN FORREST,

 Petitioner,

v.

SECRETARY OF HEALTH AND 

HUMAN SERVICES,

 Respondent.

Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner.

Jennifer A. Shah, U.S. Department of Justice, Washington, DC, for respondent.

Ruling on Entitlement1

On December 8, 2017, Joan Forrest filed a petition under the National Childhood 

Vaccine Injury Act, 42 U.S.C. § 300aa-10-34 (2012),2 alleging that her receipt of an 

influenza (“flu”) vaccination on December 16, 2014, caused a right shoulder injury, 

specifically a Table Injury of “SIRVA.” (ECF No. 1.) On June 25, 2020, the current 

petitioner, Jeanne Michelle Forrest, was substituted as petitioner in her capacity as legal 

representative for the estate of Joann Forrest.3 (ECF No. 58.) An amended petition 

was subsequently filed to additionally plead significant aggravation as an alternate 

theory. (ECF No. 63.) For the reasons set forth below, I conclude that petitioner is

1 Because this document 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 EGovernment Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of 

Electronic Government Services). This means the document 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.

2 All references to “§ 300aa” below refer to the relevant section of the Vaccine Act at 42 U.S.C. § 300aa10-34. 

3 Throughout this decision, Jeanne Michelle Forrest will be referred to exclusively as “petitioner” and Joan 

Forrest will be referred to as “Ms. Forrest.” 

Special Master Horner

Shoulder Injury Related to 

Vaccine Administration 

(“SIRVA”); Influenza (“Flu”) 

Vaccine; Ruling on the Record; 

Significant Aggravation
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entitled to an award of compensation for a significant aggravation of the Ms. Forrest’s 

pre-existing shoulder injury.

I. Applicable Statutory Scheme

Under the National Vaccine Injury Compensation Program, compensation 

awards are made to individuals who have suffered injuries after receiving vaccines. In 

general, to gain an award, a petitioner must make a number of factual demonstrations, 

including showing that an individual received a vaccination covered by the statute; 

received it in the United States; suffered a serious, long-standing injury; and has 

received no previous award or settlement on account of the injury. Finally – and the key 

question in most cases under the Program – the petitioner must also establish a causal 

link between the vaccination and the injury. In some cases, the petitioner may simply 

demonstrate the occurrence of what has been called a “Table Injury.” That is, it may be 

shown that the vaccine recipient suffered an injury of the type enumerated in the 

“Vaccine Injury Table,” corresponding to the vaccination in question, within an 

applicable time period following the vaccination also specified in the Table. If so, the 

Table Injury is presumed to have been caused by the vaccination, and the petitioner is 

automatically entitled to compensation, unless it is affirmatively shown that the injury 

was caused by some factor other than the vaccination. § 300aa-13(a)(1)(A); § 300 aa11(c)(1)(C)(i); § 300aa-14(a); § 300aa-13(a)(1)(B). 

As relevant here, the Vaccine Injury Table lists a Shoulder Injury Related to 

Vaccine Administration or “SIRVA” as a compensable injury if it occurs within 48 hours

of administration of a flu vaccine. § 300aa-14(a) as amended by 42 CFR § 100.3. 

Table Injury cases are guided by statutory “Qualifications and aids in interpretation” 

(“QAIs”), which provide more detailed explanation of what should be considered when 

determining whether a petitioner has proven the existence an injury listed on the 

Vaccine Injury Table. 42 CFR § 100.3(c). To be considered a “Table SIRVA,” petitioner 

must show that the injury at issue meets the following four criteria: 

(i) No history of pain, inflammation or dysfunction of the affected shoulder 

prior to intramuscular vaccine administration that would explain the alleged 

signs, symptoms, examination findings, and/or diagnostic studies occurring 

after vaccine injection;

(ii) Pain occurs within the specified time-frame;

(iii) Pain and reduced range of motion are limited to the shoulder in which 

the intramuscular vaccine was administered; and

(iv) No other condition or abnormality is present that would explain the 

patient's symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy, 

brachial neuritis, mononeuropathies, or any other neuropathy).

42 CFR §100.3(c)(10). 

Alternatively, if no injury falling within the Table can be shown, the petitioner may

still demonstrate entitlement to an award by showing that the vaccine recipient’s injury 

or death was caused-in-fact by the vaccination in question. § 300aa-13(a)(1)(A); § 
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300aa-11(c)(1)(C)(ii). To so demonstrate, a petitioner must prove that the vaccine was 

“not only [the] but-for cause of the injury but also a substantial factor in bringing about 

the injury.” Moberly ex rel. Moberly v. Sec'y of Health & Human Servs., 592 F.3d 1315, 

1322 n.2 (Fed. Cir. 2010) (quoting Shyface v. Sec'y of Health & Human Servs., 165 

F.3d 1344, 1352–53 (Fed. Cir. 1999)); Pafford v. Sec'y of Health & Human Servs., 451 

F.3d 1352, 1355 (Fed. Cir. 2006). In particular, a petitioner must demonstrate: (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 proximate temporal relationship between vaccination and 

injury. Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir. 2005)

For both Table and Non–Table claims, Vaccine Program petitioners must 

establish their claim by a “preponderance of the evidence”. § 300aa-13(a). That is, a 

petitioner must present evidence sufficient to show “that the existence of a fact is more 

probable than its nonexistence . . . .” Moberly, 592 F.3d at 1322 n.2. Proof of medical 

certainty is not required. Bunting v. Sec'y of Health & Human Servs., 931 F.2d 867, 873 

(Fed. Cir. 1991). However, a petitioner may not receive a Vaccine Program award 

based solely on her assertions; rather, the petition must be supported by either medical 

records or by the opinion of a competent physician. § 300aa-13(a)(1).

A petitioner may also allege that the vaccine at issue caused a “significant 

aggravation” of a preexisting injury. The Vaccine Act defines significant aggravation as 

“any change for the worse in a preexisting condition which results in markedly greater 

disability, pain, or illness accompanied by substantial deterioration of health.” § 300aa33(4). Where a petitioner in an off-Table case is seeking to prove that a vaccination 

aggravated a pre-existing injury, she must establish three additional factors. See 

Loving v. Sec’y of Health & Human Servs., 86 Fed. Cl. 135, 144 (Fed. Cl. 2009) 

(combining the first three Whitecotton factors for claims regarding aggravation of a 

Table injury with the three Althen factors for off table injury claims to create a six-part 

test for off-Table aggravation claims); see also W.C. v. Sec’y of Health & Human Servs., 

704 F.3d 1352, 1357 (Fed. Cir. 2013) (applying the six-part Loving test.). The additional 

Loving factors require petitioners to demonstrate aggravation by showing: (1) the 

vaccinee’s condition prior to the administration of the vaccine, (2) the vaccinee’s current 

condition, and (3) whether the vaccinee’s current condition constitutes a “significant 

aggravation” of the condition prior to the vaccination. Id. 

II. Procedural History

As noted above, this case was initially filed on December 8, 2017. Based on the 

allegations contained in the petition it was originally assigned to the Special Processing 

Unit or “SPU” for possible information resolution. (ECF No. 5.) Through her counsel, 

Ms. Forrest developed the record between March of 2018 and June of 2019. (ECF Nos. 

9, 15, 25, 32, 35, 37, 39; Exs. 1-22.) Respondent then filed his Rule 4 Report on 

September 24, 2019. (ECF No. 44.) Respondent contended that Ms. Forrest could not 

establish a Table Injury of SIRVA and had not filed any expert medical opinion to 

support a cause-in-fact claim. (Id. at 9-12.) Respondent suggested that Ms. Forrest

had a preexisting shoulder injury and that her symptoms were not limited to her 

shoulder. (Id.)
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After respondent filed his report, the case was reassigned out of the SPU and to 

the undersigned and I ordered Ms. Forrest to file an expert report. (ECF No. 46-48.) 

She filed a report by Marco Bodor, M.D., and supporting material on March 12, 2020. 

(ECF No. 53; Exs. 24-29.) Respondent filed a responsive report by Julie Bishop, M.D., 

with supporting material on July 21, 2020. (ECF No. 59; Exs. A-B.) During this period, 

Ms. Forrest passed away due to conditions unrelated to her injury claim and Jean 

Michelle Forrest became petitioner as legal representative of the estate. (ECF Nos. 52, 

56-58; Exs. 23, 30.) On August 31, 2020, petitioner filed a supplemental report by Dr. 

Bodor responding to Dr. Bishop’s report. (ECF Nos. 60-61; Exs. 31-34.) 

On September 2, 2020, I held a status conference during which I urged the 

parties to consider litigative risk settlement and also noted that I felt the case is 

appropriate for resolution on the written record. (ECF No. 62.) I discussed petitioner’s 

claim as more likely to represent a claim for significant aggravation. (Id.) Specifically, I 

explained that my review of the medical records suggested three arcs of shoulder 

symptoms – the first predating the vaccination, the second immediately after 

vaccination, and a third subsequent to a later series of falls. (Id. at 2.) Respondent’s 

expert, Dr. Bishop, opined this was the natural course of Ms. Forrest’s degenerative 

conditions; however, both Ms. Forrest’s primary care physician and Dr. Bodor opined 

the second arc of symptoms constituted a vaccine-related aggravation of Ms. Forrest’s 

shoulder condition. (Id.) Subsequently, on September 14, 2020, petitioner amended 

her petition to include a claim for significant aggravation. (ECF No. 63.)

Thereafter, the parties exchanged several more expert reports. Respondent filed 

a supplemental report by Dr. Bishop on April 28, 2021. (ECF No. 71; Ex. C.) Petitioner 

filed a further report by Dr. Bodor on August 4, 2021. (ECF No. 74; Ex. 35.) 

Respondent then filed a report by Dr. Bishop on September 30, 2021, and petitioner 

responded with a report by Dr. Bodor on October 8, 2021. (ECF Nos. 76-77; Exs. D, 36-

38.) Respondent filed a report by Dr. Bishop on January 5, 2022, and petitioner filed a 

report by Dr. Bodor on January 19, 2022. (ECF Nos. 79-80; Exs. E, 39-40.) 

Respondent filed a final report by Dr. Bishop on March 7, 2022. (ECF No. 83; Ex. F.) 

On March 8, 2022, I ordered petitioner to file a motion for a ruling on the record 

and also permitted petitioner to simultaneously file a report by Dr. Bodor responding to 

respondent’s final report by Dr. Bishop. Petitioner filed a final report by Dr. Bodor on 

March 10, 2022, and her motion for a ruling on the record on May 9, 2022. (ECF Nos. 

84-85; Exs. 41-43.) Respondent filed his response on June 22, 2022, and petitioner 

filed a reply on July 6, 2022. (ECF Nos. 87-88.)

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. Sec’y of Health & Human 

Servs., 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.”). Accordingly, this matter is now ripe for resolution.
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III. Factual History

a. As reflected in the medical records

i. Pre-vaccination 

Ms. Forrest presented to her primary care physician on December 27, 2011, with 

a complaint of right shoulder pain. (Ex. 4, p. 1.) On physical exam she had crepitus4

and impaired range of motion. (Id. at 2.) She followed up with an orthopedist (Dr. 

Johnson) on January 13, 2012.5 (Ex. 2, p. 1.) She complained of “persistent,” but 

“waxing and waning” shoulder pain for approximately eight years.6 (Id.) The pain had 

worsened in the last few months. (Id.) She had previously tried physical therapy but felt 

it had made her symptoms worse. By the time she sought treatment from Dr. Johnson, 

the pain was interfering with her sleep. (Id.) On physical exam she had reduced range 

of motion and signs of impingement (Hawkins and Neer’s testing were positive).7 Ms. 

Forrest was diagnosed with right shoulder subacromial impingement and a suspected 

rotator cuff tear. (Id. at 3.)

Ms. Forrest returned to Dr. Johnson on February 9, 2012. A diagnostic 

ultrasound showed “a chronic right shoulder full-thickness tear of the anterior medial 

fibers of the supraspinatus with minimal tendon retraction” and acromioclavicular joint 

osteoarthritis. (Ex. 2, p. 5.) She declined a steroid injection and was referred for a 

surgical consultation that she apparently did not pursue.8 (Ex. 15, p. 9.) 

Ms. Forrest did not seek care again until about a year and a half later, when she 

sought care from her primary care provider on July 12, 2013, following a fall in her 

garden. (Ex. 4, p. 20.) She reported that about two weeks prior she fell down a slope in 

her garden and fell onto her knees and right shoulder. She complained of right shoulder 

4 ”The grating sensation caused by the rubbing together of the dry synovial surfaces of joints; called also 

articular c.” Joint crepitus, DORLAND’S MEDICAL DICTIONARY ONLINE, 

https://www.dorlandsonline.com/dorland/definition?id=67378&searchterm=joint%20crepitus (last 

accessed Feb. 13, 2023). 

5 In addition to her shoulder complaint, petitioner also had bilateral hand pain and weakness that was 

separately diagnosed as arthritis. (Ex. 2, p. 3.)

6 Petitioner would later report to Dr. Johnson that she recalled a prior fall occurring about eight to ten 

years prior. (Ex. 2, p. 4.)

7 A Hawkins-Kennedy test is a test used in the evaluation of orthopedic shoulder injury. “A positive 

Hawkins-Kennedy test is indicative of an impingement of all structures that are located between the 

greater tubercle of the humerus and the coracohumeral ligament.” Hawkins-Kennedy test, WIKIPEDIA, 

https://en.wikipedia.org/wiki/Hawkins%E2%80%93Kennedy_test (last accessed Feb. 13, 2023). A Neer 

impingement test is a test designed to reproduce symptoms of rotator cuff impingement “through flexing 

the shoulder and pressure application.” Neer Impingement Test, WIKIPEDIA, 

https://en.wikipedia.org/wiki/Neer_Impingement_Test (last accessed Feb. 13, 2023). In a Neer’s test, 

symptoms should be reproduced “if there is a problem with he supraspinatus or biceps brachii.” Id.

8 Petitioner was referred to Dr. Benjamin Widmer but there is no indication from the records that she saw 

Dr. Widmer at that time. (Ex. 15.) Petitioner’s first visit to Dr. Widmer appears to be on July 6, 2015. (Id. 

at 11-16.) 
6

and right knee pain as well as fatigue. (Id.) However, the fatigue was reportedly more 

concerning at this particular visit. Ms. Forrest reported that she was still experiencing 

shoulder pain, worse at night, that she felt was slowly improving and that her shoulder 

pain “is not overly concerning.” (Id.) However, she did state that she could not cross 

her arm across her chest. (Id.) On examination, she had no crepitus and no 

tenderness to palpation, but reported some pain with resisted abduction and rotation. 

Apart from her cross-body movement, her range of motion was normal. Neer’s test 

demonstrated “some tightness” but Hawkins test was negative. (Id. at 21.) No 

treatment was recommended.

However, Ms. Forrest returned to her primary care provider on August 5, 2013, 

reporting that her right shoulder pain had worsened due to attempting to pull a vine out 

of her garden. (Ex. 4, p. 24.) She now had mild tenderness to palpation in the inferior 

to the acromion, limited external rotation, and abduction limited to 90 degrees. For the 

first time she had pain with an empty can test.9 (Id.) However, it was noted that her 

passive range of motion was good. Accordingly, the injury was considered “probably 

more consistent with rotator cuff tendinitis rather than tear” with an additional baseline of 

osteoarthritis. (Id. at 25.) Ms. Forrest was referred to physical therapy. (Id.) However, 

there is no evidence to suggest she acted on that referral.

On January 21, 2014, Ms. Forrest was hospitalized after a car accident. (Ex. 3, 

pp. 1, 66.) She suffered a fractured rib, a left scapula fracture, facial lacerations, and a 

pulmonary contusion. (Id.) There is no indication that the accident affected her right 

shoulder. 

On November 4, 2014, Ms. Forrest returned to her primary care physician with a 

chief complaint of a rash on her face. (Ex. 4, p. 40.) Her history of osteoarthritis 

affecting her hands, knees, and shoulder was referenced; however, she was managing 

her pain with home exercises and herbal remedies. (Id.) Examination of Ms. Forrest’s

extremities provided only a cursory notation that she had no peripheral edema. (Id. at 

41.) It was recommended that petitioner continue her home exercises, but no other 

treatment was indicated for her osteoarthritis. (Id.)

ii. Vaccination and subsequent treatment 

Ms. Forrest received the flu vaccination at issue in this case in her right deltoid 

on December 16, 2014. (Ex. 16, p. 3; Ex. 1.) About a month later, on January 19, 

2015, she sought treatment from her primary care provider “to evaluate right shoulder 

pain after receiving her flu shot.” (Ex. 4, p. 46.) The following history was provided:

She presents with right upper extremity pain that began after receiving her 

flu shot at Walgreens on 12/16/2014. She reports severe pain and difficulty 

9 The empty can test (Jobe’s test) and full can tests are used to diagnose shoulder injuries. “Specifically, 

these physical examination maneuvers examine the integrity of the supraspinatus muscle and tendon.” 

Empty can/ Full can tests, WIKIPEDIA, https://en.wikipedia.org/wiki/Empty_can/Full_can_tests (last 

accessed Feb. 13, 2023). In the empty can test, “the arm is rotated to full internal rotation (thumb down) 

and in the full can test, the arm is rotated to 45° external rotation, thumb up.” Id. The test is considered 

positive “if weakness, pain or both are present during resistance. A positive test result suggests a tear to 

the supraspinatus tendon or muscle, or neuropathy of the suprascapular nerve.” Id. 
7

lifting her right should[er] during the 2 days following her flu shot . . . The 

pain has caused multiple sleepless nights . . . Pain duration lasts from 

minutes to hours in some instances . . . She denies any recent trauma, but 

does report numbness, tingling, and weakness in the right arm. 

(Id.) Ms. Forrest’s prior rotator cuff tear was noted, but “she has not had many 

problems with the shoulder until after receiving the flu shot.” (Id.) Physical exam 

showed impingement, with Neers and Hawkins tests producing pain. (Id. at 47.) Empty 

can test showed weakness and she had significant weakness with a push off test. 

Range of motion was full except for limited and “visibly painful” abduction. (Id.) The 

assessment was that this “may represent progression of the tear that was exacerbated 

by the inflammatory process [elicited] by the flu shot. Other thoughts include a bursitis 

directly from the shot itself vs. a nerve injury from the injection.” (Ex. 4, p. 47.) Ms. 

Forrest was referred to her orthopedist for further evaluation. (Id.)

On May 15, 2015, Ms. Forrest returned to her primary care provider and reported 

that her shoulder pain “has slowly been improving.” (Ex. 4, p. 50.) She was having

difficulty securing an appointment with an orthopedist but reported that “the pain has 

almost resolved.” (Id.) There is no indication of any relevant physical examination 

findings at this encounter. (Id. at 50-51.)

On July 6, 2015, Ms. Forrest saw an orthopedic surgeon (Dr. Widmer). (Ex. 2, p. 

31.) Her “long history” of right shoulder dysfunction was noted, but Ms. Forrest reported 

that it “was not bothering her much but she had a flu shot in the fall and had pain and 

dysfunction with increasing stiffness and pain thereafter.” (Id.) Petitioner reported a 

“waxing and waning” of her condition but indicated that “she is not remotely back to 

having as functional a shoulder as she would like.” (Id.) The pain reportedly extended 

down to her hand at times. (Id.) She reported pain with internal and external rotation, 

but no issue with forward elevation. (Id.) Physical exam confirmed her reduced range 

of motion and an x-ray showed degenerative changes. She was diagnosed with 

adhesive capsulitis in addition to her ongoing rotator cuff disease. (Id. at 33.) An MRI 

was recommended. (Id.) Dr. Widmer did not specifically address whether Ms. Forrest’s 

reported vaccination had any causal role in her condition.

Ms. Forrest opted not to undergo the MRI imaging recommended by Dr. Widmer. 

(Ex. 15, p. 17.) However, she agreed to a diagnostic ultrasound. (Id. at 18.)

iii. Subsequent treatment and falls

Before Ms. Forrest was able to present for her diagnostic ultrasound, she 

reported that she had experienced a fall while walking up steps. She “lost balance and 

grabbed the railing so she wouldn’t fall, and she felt a pop in the middle of her forearm, 

and she is having pain there now.” (Ex. 15, p. 20.) Ms. Forrest declined the 

recommendation to get an x-ray and indicated she would maintain her upcoming 

appointment for her diagnostic ultrasound. (Id.)

On August 7, 2015, Ms. Forrest underwent a right shoulder ultrasound which 

showed: (1) “right subscapularis partial tearing versus tendinosis. No evidence of a full 
8

thickness tear”; (2) “atrophic appearing long head of the biceps tendon, likely indicating 

a chronic tear/rupture”; and (3) “right supraspinatus full thickness tendon tear with 

probable retraction of the anteromedial fibers. No evidence of an acute tear.” (Ex. 2, p. 

42.)

On August 20, 2015, Ms. Forrest saw a different orthopedic surgeon (Dr. 

Gardiner). (Ex. 20, pp. 17-19.) Ms. Forrest reported her history of chronic shoulder 

pain with additional persistent shoulder pain following her December 2014 flu 

vaccination. (Id. at 17.) Dr. Gardiner reviewed the ultrasound report and recommended 

a rotator cuff repair surgery given the severity of petitioner’s reported symptoms. (Id. at 

18-19.)

Subsequently, on September 10, 2015, Ms. Forrest returned to her primary care 

provider reporting that she had experienced another fall on August 31, 2015. She had 

landed on her chest and had ongoing chest pain. (Ex. 4, p. 63.) On September 29, 

2015, Ms. Forrest reported that she had another fall that caused her to hit her head. (Id. 

at 66.) She had no residual symptoms of head trauma, apart from a resolving 

hematoma, but reported worsened right shoulder pain over time as her “bigger 

concern.” (Id.) She reportedly had a shoulder exam “consistent with rotator cuff strain, 

not consistent with full-thickness tear.” (Id. at 67.) There was no indication for imaging, 

but petitioner was referred to physical therapy. (Id.) Ms. Forrest presented for a 

physical therapy evaluation on October 22, 2018. (Ex. 20, p. 9.) She was given 

instructions for a home exercise program but did not otherwise return for further 

physical therapy sessions. (Id.) However, her primary care provider subsequently 

noted on November 4, 2015, that her shoulder was improving with physical therapy. 

(Ex. 4, p. 77.)

iv. Further records

Ms. Forrest did not seek any care for the next four months. Then, on March 9, 

2016, she established care with a new primary care provider. (Ex. 7, p. 20.) At that 

time Ms. Forrest reported a history of her post-vaccination injury that suggested she had 

nerve damage caused by her vaccination in addition to her previously diagnosed rotator 

cuff tear. (Id.) The Review of Systems recorded right arm neuropathy and shoulder 

pain, but physical examination was only cursory with no indication of range of motion or 

any specific testing maneuvers. (Id. at 21.) She was referred for both orthopedic and 

neurologic evaluation. (Id. at 23.) Ms. Forrest’s neurology follow up was unrevealing. 

Her neurologist felt it was “[d]ifficult to separate symptoms from rotator cuff problems.” 

(Ex. 9, p. 15.) A subsequent electrodiagnostic study was normal. (Id. at 6-12.)

On August 16, 2016, Ms. Forrest saw a new orthopedist. (Ex. 10, p. 9.) The 

orthopedist felt Ms. Forrest was a “poor historian” and recorded no history of any of the 

prior inciting events reflected in her prior medical history. (Id.) She reported severe 

pain localized to the lateral aspect of the shoulder, worse with activities. (Id.) On 

physical exam, Ms. Forrest had reduced range of motion and positive Neer, Hawkins, 

and empty can tests. (Id. at 11.) She was diagnosed with mild to moderate 

glenohumeral osteoarthritis and a suspected rotator cuff tear. She was referred for an 

MRI study. (Id. at 12.) That MRI, conducted October 3, 2016, showed “[m]oderate 

degenerative changes [at the] humeral head [as well as] [d]egenerative changes in the 
9

acromioclavicular joint with undersurface spurring impress[ing] upon the supraspinatus 

musculotendinous junction region.” (Ex. 10, pp. 6-7.) It also showed “[f]ull thickness 

tearing of the supraspinatus and infraspinatus tendons with retraction beneath the 

acromioclavicular joint and abutment of the humeral head and acromion. The 

supraspinatus and infraspinatus muscles are retracted and appear small/atrophic.” (Id.

at 7.) There was also “[m]oderate joint effusion with suspected debri[s].” (Id.) Upon 

review of the MRI, the orthopedist advised Ms. Forrest she had a chronic irreparable 

rotator cuff tear and recommended a reverse total shoulder arthroplasty as a last resort. 

(Id. at 5.) Ms. Forrest declined a subacromial steroid injection and the orthopedist 

referred her to physical therapy. (Id.) Ms. Forrest attended physical therapy from 

February through July of 2017, seeing improvement in her pain but not a resolution of 

her limited function. (Ex. 5.) 

Ms. Forrest subsequently sought a fourth orthopedic opinion on August 2, 2017. 

(Ex. 8, pp. 1-4.) Ms. Forrest reported history that included her post-vaccination pain as 

well as a fall in April of 2016 that she felt improved her symptoms. She reported that 

she had been told by her doctor that the fall broke up some of her scar tissue. She 

reported numbness and tingling down her arm in addition to her shoulder pain. (Id. at 

1.) Ms. Forrest was diagnosed with an unspecified rotator cuff tear or other rupture of 

the right shoulder along with bursitis, impingement, and cervical radiculopathy. (Id. at 

4.) Ms. Forrest deferred on a recommended cervical MRI study because her symptoms 

were improving. She was to continue physical therapy and undergo a shoulder MRI to 

further evaluate her rotator cuff. (Id.) The MRI showed complete tears of the 

supraspinatus and infraspinatus tendons with five centimeters of retraction and 

moderate to severe muscle atrophy as well as mild subscapular tendinosis, a complete 

stable tear of the biceps tendon, subluxation of the humeral head, mild to moderate 

glenohumeral and acromioclavicular osteoarthritis, and a small glenohumeral joint 

effusion. (Id. at 9.) A capsular reconstruction was recommended. (Id.) Initially, Ms. 

Forrest deferred because she felt she had “functional range of motion,” but she returned 

about a month later and indicated she would proceed with surgery. (Id. at 9, 15.)

Ms. Forrest never pursued the recommended surgery. She passed away on 

November 8, 2019.

b. As reflected in Ms. Forrest’s affidavits

Ms. Forrest filed two affidavits in this case. (ECF Nos. 1. 15.) I have reviewed 

these affidavits and they are consistent with the history reflected in the above-discussed 

medical records. The affidavits do not contain any additional details that would affect 

the resolution of entitlement in this case.
10

IV. Summary of Expert Opinions 

a. Initial Report by Petitioner’s Expert, Marco Bodor, M.D.10

Dr. Bodor opines that Ms. Forrest sustained a significant aggravation of 

preexisting shoulder dysfunction caused by her December 16, 2014 influenza 

vaccination. (Ex. 24, p. 3.) He explains that “[p]rior to this vaccination, she had 

intermittent pain but little disability, whereas afterwards she had considerable disability. 

This is a key distinction.” (Id. at 3-4.)

Dr. Bodor explains that the likely mechanism of injury is injection of the vaccine 

into the subacromial bursa and adjacent rotator cuff. (Ex. 24, p. 4 (citing Marko Bodor & 

Enoch Montalvo, Vaccination-related shoulder dysfunction, 25 VACCINE 585 (2007) (Ex. 

26); Brian P. McColgan & Frank A. Borschke, Pseudoseptic arthritis after accidental 

intra-articular deposition of the pneumococcal polyvalent vaccine: a case report, 25(7) 

AM. J. EMERG. MED. 1 (2007) (Ex. 27); S. Atanasoff et al., Shoulder injury related to 

vaccine administration (SIRVA), 28 VACCINE 8049 (2010) (Ex. 28) (as filed as Ex. A, Tab 

3)).) Further to this, he cites a case report to demonstrate that a preexisting full 

thickness rotator cuff tear may make it more likely that the substance of the vaccine 

would pass through the tear into the joint. (Id. (citing Andrew Neviaser & Jo A. 

Hannafin, Adhesive Capsulitis: A review of current treatment, 38(11) Am. J. Spots Med. 

2346 (2010) (Ex. 29)).) Dr. Bodor opines that vaccine deposition into the infraspinatus 

and teres minor insertions is common in cases of SIRVA and that this would be 

consistent with Dr. Widner’s finding of painful external rotation in Ms. Forrest’s case. 

(Id.) He also opines that petitioner’s subsequent development of adhesive capsulitis as 

diagnosed by Dr. Widner is also consistent with SIRVA. He explains that adhesive 

capsulitis is a “true inflammatory disorder” and that SIRVA patients are at increased risk 

of adhesive capsulitis compared to the general population. (Id.) Dr. Bodor 

acknowledges that Ms. Forrest also reported some symptoms consistent with nerve 

involvement but noted that after she was referred to a neurologist her EMG and 

neurologic exam were normal. (Id.)

10 Dr. Bodor received his medical degree from the University of Cincinnati in 1987 and completed a 

surgery internship at the University of California, San Diego, in 1988. (Ex. 25, p. 1.) He completed his 

physical medicine and rehabilitation residency at the University of Michigan in 1993. (Id.) Along with 

three fellows, he sees approximately 28 patients per day, where he performs diagnostic and therapeutic 

procedures. (Id. at 2.) Dr. Bodor is affiliated with the UCSF Department of Neurological Surgery and the 

UC Davis Department of Physical Medicine and Rehabilitation, collaborating in the care of patients and 

teaching visiting faculty, fellows, residents, medical and pre-medical students. (Id.) He also serves as the 

medical director of the Napa Medical Research Foundation, spending approximately 10-20 hours per 

week supervising research assistants and PhD students. (Id.) Dr. Bodor was the first person to describe 

vaccination-related shoulder dysfunction in the journal Vaccine in 2007, which was subsequently 

renamed SIRVA by Atanasoff et al. in 2010. (Ex. 24, p. 1.) He has treated 15 patients with SIRVA in his 

practice since 2007 and has reviewed over 35 SIRVA petitions for the VICP. (Id.) 
11

b. Initial Report by Respondent’s Expert, Julie Y Bishop, M.D.11

Although Dr. Bishop disagrees with Dr. Bodor’s assessment of Ms. Forrest’s own 

clinical history, she does not offer any specific challenge to his explanation of how a 

vaccine could, in general, significantly aggravate a preexisting shoulder condition. Dr. 

Bishop opines that Ms. Forrest’s course both before and after the vaccination at issue is 

consistent with a “waxing and waning” course of mild osteoarthritis and rotator cuff tear. 

(Ex. A, p. 7.) She disagrees with Dr. Bodor’s assessment that her condition was 

substantially worse post-vaccination and instead indicates that it was not until the 

summer of 2015, when Ms. Forrest began experiencing falls and noted feeling a 

popping in her arm, that the tempo of her care increased. (Id.) Dr. Bishop charges that 

Dr. Bodor does not account for the “known and expected course of someone with Ms. 

Forrest’s pre-vaccine shoulder condition.” (Id.)

Dr. Bishop agrees that Ms. Forrest may have experienced two days of mild postvaccination irritation of her shoulder as she reported, but also notes that this was noted 

to have improved and that Ms. Forrest’s pain was otherwise documented as 

intermittent, which is more consistent with osteoarthritis and rotator cuff disease. (Ex. 

A, p. 8.) Dr. Bishop also acknowledges there was progression of Ms. Forrest’s 

condition but opines that this progression cannot be explained by her vaccination. (Id.) 

Dr. Bishop contends that Ms. Forrest’s objective imaging over time confirms the 

progression of her preexisting shoulder dysfunction as the explanation of her clinical 

course. (Id.) In particular, she stresses that the imaging shows the worsening of 

petitioner’s rotator cuff tears over time. (Id.)

Further to this, Dr. Bishop explains that glenohumeral osteoarthritis is itself a 

progressive condition with no treatment that can reverse or slow its natural progression. 

Decreased function generally occurs over months to years. (Ex. A, p. 8.) Over time, 

osteoarthritis results in pain and stiffness resulting in functional imitations, especially 

with overhead activities and external rotation. (Id.) “The loss of motion is due to 

capsular thickening and contraction and is a hallmark of the disease.” (Id.) Dr. Bishop 

opines that Ms. Forrest’s condition, as documented by Dr. Widner, “clearly matches” the 

course of osteoarthritis. (Id. at 9.) Dr. Bishop agrees with Dr. Widner’s diagnosis of 

adhesive capsulitis but disagrees with Dr. Bodor’s attribution of that adhesive capsulitis 

11 Dr. Bishop serves as a professor in the department of Orthopaedic Surgery at the Ohio State 

University, Wexner Medical Center, as well as Chief of the Division of Shoulder surgery, and Vice Chair of 

Finance for the Orthopaedic Department. (Ex. A, p. 1.) As a shoulder specialist, all of Dr. Bishop’s 

research interests, publications, book chapters, and presentations have been on the treatment of 

shoulder pathology. (Id.; Ex. B pp. 9-41.) Dr. Bishop has treated multiple patients with SIRVA in her 

practice over the years and has published in this area as well. (Id.) Dr. Bishop received her medical

degree from Cornell University Medical College in 1997. (Ex. B, p. 1.) She completed fellow training in 

2003 specifically in shoulder surgery (fellowship at Mount Sinai Hospital in New York City) and 

Orthopaedic sports medicine (visiting fellowship at the University of Pittsburg Medical Center). (Ex. A, p. 

1.) She is board certified in orthopedic surgery. (Ex. B, p. 2.) Dr. Bishop is also a fellow of the American 

Academy of Orthopaedic Surgeons, an active member of the American Shoulder and Elbow Surgeons, a 

member of the American Orthopaedic Society for Sports Medicine as well as an elected member of the 

American Orthopaedic Association. (Ex. A, p. 1.) 
12

to vaccination. (Id.) Whereas Dr. Bishop agrees that primary idiopathic adhesive 

capsulitis may be associated with SIRVA, she asserts that Ms. Forrest had secondary 

adhesive capsulitis related to her underlying osteoarthritis. (Id.)

According to Dr. Bishop, “[a]nother hallmark finding of [glenohumeral 

osteoarthritis] is that the pain is often intermittent and can be aggravated by various 

activities, thus there are times when it flares up and times when it calms down.” (Ex. A, 

p. 9.) This, she concludes, “is in step with [Ms. Forrest’s] statements that her symptoms 

were intermittent and when aggravated, the pain was present for a short period of time.” 

(Id.) Dr. Bishop further indicates that Ms. Forrest’s documented falls may also have 

contributed to the progression of her rotator cuff tear and also aggravated her 

underlying osteoarthritis. (Id. at 10.)

With regard to neurologic symptoms, Dr. Bishop disagrees that these symptoms 

could be referred from the shoulder. (Ex. A, p. 10.) Rather, Dr. Bishop stresses that 

Ms. Forrest had documented degenerative disc disease that likely explains her 

neurologic symptoms. (Id.) Nonetheless, Dr. Bishop characterizes the neurologic 

symptoms as “nonspecific” and explains that while the neurologic condition may explain 

Ms. Forrest’s difficulty with fine skills, her pain and reduced range of motion in her 

shoulder are related to her rotator cuff and arthritic changes. (Id.)

c. Subsequent Reports by the Parties’ Experts

After providing their initial opinions, both parties’ experts filed multiple

supplemental reports. (Exs. 31, 35, 41, C-F.) I have carefully reviewed all of these 

reports; however, it is not necessary to summarize each report. A substantial portion of 

the analysis contained in these reports relates to the question of whether neurologic 

symptoms of numbness and tingling can be seen among patients experiencing shoulder 

conditions. However, as explained above, even though the experts differ on their 

interpretation of the neurologic symptoms at issue in this case, they both nonetheless 

also opine that Ms. Forrest’s clinical history is largely explained by her shoulder 

pathology. Whether Ms. Forrest’s numbness and tingling into her hand is consistent 

with the shoulder pathology itself or separately explained by an additional condition is 

immaterial to resolving whether that agreed upon shoulder pathology was aggravated 

by her vaccination.

V. Party Contentions

a. Petitioner’s Motion

In her motion for a ruling on the record, petitioner focuses exclusively on the 

significant aggravation claim included in her amended petition. (ECF No. 85.) 

Petitioner argues that while Ms. Forrest had a history of osteoarthritis and a rotator cuff 

tear, “[t]he difference in symptomology in the right shoulder from before to after the 

vaccine administration was dramatic” and constitutes a significant aggravation of Ms. 

Forrest’s condition inclusive of adhesive capsulitis, severe pain, and loss of range of 

motion. (Id. at 1.) 
13

Petitioner stresses that under a Loving analysis for significant aggravation, 

respondent is incorrect to suggest (through his expert) that Ms. Forrest’s preexisting 

condition should be evaluated by looking to the expected course of the underlying 

conditions. (ECF No. 85, p. 15.) Rather, petitioner indicates that under the legal 

standard at issue only petitioner’s pre- and post-vaccination conditions may be 

compared and petitioner is not obligated to prove that her post-vaccination condition is 

worse than her expected outcome. (Id. at 15-16) (quoting Sharpe v. Sec’y of Health & 

Human Servs., 964 F.3d 1072, 1082 (Fed. Cir. 2020).)

Petitioner argues that through Dr. Bodor she has set forth a mechanism of 

significant aggravation that is “essentially the same as any SIRVA injury.” (ECF No. 85, 

p. 16.) That is, petitioner argues that the significant aggravation in this case was 

caused by injection of a vaccine into the subacromial bursa and adjacent rotator cuff. 

(Id.) She further argues that this is consistent both with Ms. Forrest’s treating 

physician’s assessment and the medical literature filed in this case. (Id. at 16-18.) 

Further to this, petitioner argues that the medical records are clear in attributing Ms. 

Forrest’s worsened condition to her vaccination, both in terms of the history she 

provided and the treating physician’s assessment, and that the timing is medically 

appropriate for vaccine-causation. (Id. at 18-20.) Thus, petitioner argues that she has 

proven Loving prongs four through six. (Id.)

b. Respondent’s Response

Respondent agrees that a Loving analysis is the relevant legal framework. (ECF 

No. 87, p. 10.) However, respondent counters that nothing in the Sharpe decision cited 

by petitioner “prohibits respondent from introducing, or the special master from 

considering, evidence that petitioner’s post-vaccination clinical course is consistent with 

the expected clinical course of the condition, and that the vaccine was therefore not a 

‘substantial factor’ in aggravating that condition.” (Id. at 11.) Respondent contends that 

petitioner has failed to demonstrate by preponderant evidence that Ms. Forrest’s 

vaccination was a substantial factor in causing a significant aggravation of her 

preexisting condition as opposed to her condition having evolved “in a manner wholly 

consistent with the natural progression of her diagnoses, perhaps with accelerations 

caused by falls and other incidents.” (Id. at 12.)

Regarding petitioner’s theory of causation, respondent contends that Dr. Bodor’s 

theory is not supported by any medical literature and further that petitioner is engaged in 

conflation when she equates a primary de novo shoulder injury and the worsening of a 

pre-existing shoulder injury. (ECF No. 87, p. 13.) Respondent stresses that none of the 

cited literature supports vaccines as the cause of a progression of a rotator cuff tear and 

asserts that the literature is inapposite. (Id.) In contrast to the evidence petitioner has 

cited regarding Ms. Forrest’s own history, respondent stresses the evidence Dr. Bishop 

has brought forward regarding the fact that glenohumeral arthritis and rotator cuff tears 

naturally progress over time, arguing that Ms. Forrest’s history is consistent with this 

type of progression. (Id. at 13-19.) Further to this, respondent disputes that Ms. Forrest 

had primary adhesive capsulitis caused by her vaccination. (Id. at 19-20.) Finally, 

because respondent distinguishes the two days of post-vaccination petitioner 

experienced as temporary irritation separate from her broader condition, respondent 
14

contends that petitioner has not demonstrated a medically acceptable temporal 

relationship between Ms. Forrest’s vaccination and her worsened condition. (Id. at 21-

22.)

c. Petitioner’s Reply

In her reply, petitioner contends that respondent is seeking to “complicate” this 

case. Petitioner stresses several aspects of the medical records to illustrate why she 

believes the significant aggravation in this case is clear cut. She contends that “[t]here 

is significant, credible evidence that the flu vaccination Ms. Forrest received on 

December 16, 2014, either directly caused, or significantly aggravated, Ms. Forrest’s 

increased shoulder symptomology.” (ECF No. 88, p. 3.) Petitioner further stresses that 

because she has presented a prima facie case of vaccine-caused significant 

aggravation, she is not required to eliminate alternative causes of her injury. She 

contends that respondent has not, in turn, presented preponderant evidence that Ms. 

Forrest’s injury was due to a factor unrelated to vaccination (namely the natural 

progression of her pre-existing shoulder conditions). (Id.) That is, respondent has not 

presented preponderant evidence satisfying his own burden of proof that eliminates Ms. 

Forrest’s vaccination as a substantial factor in her subsequent symptomology. (Id. at 4.) 

In that regard, petitioner stresses that respondent has conceded that Ms. Forrest 

suffered a post-vaccination inflammatory response and that his expert has failed to 

address the fact that Ms. Forrest’s own treating physician concluded that this 

inflammatory reaction caused a significant aggravation of her shoulder prior shoulder 

condition. (Id. at 3.)

VI. Analysis

a. Petitioner’s Table Injury claim

Although the parties focus on significant aggravation in their briefing, I first note 

in the interest of completion that petitioner has not demonstrated a Table Injury of 

SIRVA as pleaded in the original petition. The first SIRVA QAI prong requires “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.” 42 

CFR §100.3(c)(10). The Table SIRVA criteria does not necessarily require a spotless 

prior health history of the affected shoulder. Compare, O’Leary, M.D. v. Sec’y of Health 

& Human Servs., 18-584V, 2021 WL 3046617, at *8 (Fed. Cl. Spec. Mstr. June 24, 

2021) (finding petitioner suffered a Table SIRVA despite an “old history of trauma to his 

shoulder” that had previously resolved); and, Clark v. Sec’y of Health & Human Servs., 

18-813V, 2022 WL 16635681 (Fed. Cl. Spec. Mstr. Feb. 7, 2022) (finding that 

“[a]lthough a total shoulder replacement relieved much of petitioner’s earlier severe 

shoulder pain, it appears, contrary to petitioner’s contention, that it never fully 

resolved.”). However, as discussed further below, I find that this case represents a 

significant aggravation of Ms. Forrest’s preexisting shoulder condition. In short, Ms. 

Forrest’s medical records confirmed she had preexisting shoulder dysfunction confirmed 

by objective imaging and medical records created shortly before vaccination indicated 
15

her shoulder complaints were still symptomatic. Further, when she presented for care 

post-vaccination, her treating physicians understood her symptoms as an exacerbation 

of her preexisting shoulder dysfunction. And, indeed, this is also how petitioner’s expert 

approaches his causal opinion. Therefore, petitioner cannot demonstrate that Ms. 

Forrest’s history is compatible with the first SIRVA criterion. Accord Kelly v. Sec’y of 

Health & Human Servs., No. 17-1918V, 2022 WL 1144997 (Fed. Cl. Spec. Mstr. Mar. 

24, 2022). 

b. Petitioner’s Significant Aggravation Claim

i. Petitioner’s condition prior to administration of the vaccine

(Loving prong one)

In light of all of the above, and upon consideration of the record as a whole, I find 

that the following is supported by preponderant evidence: Prior to the vaccination at 

issue Ms. Forrest had right shoulder rotator cuff disease and glenohumeral joint 

osteoarthritis. (See, e.g. Ex. A, p. 7; Ex. 31, p. 1.) Ms. Forrest had a confirmed rotator 

cuff tear with only “minimal”/”no significant” tendon retraction. (Ex. 2, p. 5.) Prior to 

vaccination, symptoms associated with these conditions were occasionally exacerbated 

by isolated events (Ex. 4, pp. 20, 24); however, Ms. Forrest was not experiencing 

continuous disability. She had a baseline of ongoing pain and reduced range of motion

that was “not overly concerning.” (E.g. Ex. 4, p. 20.) The medical records confirm that 

shortly before the vaccination at issue, on November 4, 2014, Ms. Forrest was 

experiencing only mild pain that she was satisfied managing with home exercise and 

herbal remedies. (Ex. 4, pp. 20, 40.)

ii. Petitioner’s current condition/condition after administration of the 

vaccine (Loving prong two)

In light of all of the above, and upon consideration of the record as a whole, I find 

that the following is supported by preponderant evidence: After vaccination, Ms. Forrest 

suffered an “exacerbation” of her prior shoulder pain along with reduced range of motion 

that both she and her primary care provider attributed to her vaccination. (Ex. 4, p. 47; 

Ex. 2, p. 31.) Her primary care physician initially focused on her reported severe pain 

for the two days following her vaccination followed by continued, but intermittent, pain, 

the pattern of which was generally consistent with symptoms of her prior shoulder 

dysfunction, but the severity of which was worse than she had been experiencing prior 

to vaccination. (Id. at 46; Ex. A, p. 8.) Eventually, her treating orthopedist diagnosed 

adhesive capsulitis in addition to her prior rotator cuff tear as explanation for her 

stiffness and reduced range of motion. (Ex. 2, pp. 31, 33.) By the time of her 

orthopedic presentation in early July of 2015, Ms. Forrest’s post-vaccination pain and 

reduced range of motion had improved but not completely resolved. (Ex. 2, p. 31.) 

Subsequently, Ms. Forrest had imaging performed on multiple occasions that confirmed 

progression of her rotator cuff tear, though her osteoarthritis was still only mild to 

moderate (Ex. 2, p. 42; Ex. 10, pp. 6-7; Ex. 8, p. 9.); however, this imaging was 

captured after Ms. Forrest experienced a separate exacerbation of her condition in that 

she reported falls to which she had attributed a “pop” in her shoulder and increased 
16

pain. (Ex. 15, p. 20; see also Ex. 4, pp. 63, 66.) Thus, Ms. Forrest’s subsequent history 

after late July of 2015 is less informative of her condition during the months following 

her vaccination. 

iii. Whether the post-vaccination condition is a “significant 

aggravation” of the prior condition (Loving prong three)

The Vaccine Act defines significant aggravation as “any change for the worse in 

a preexisting condition which results in markedly greater disability, pain, or illness 

accompanied by substantial deterioration of health.” § 300aa-33(4). Here, consistent 

with the statutory definition, a comparison of the findings of fact under Loving prongs 

one and two shows that Ms. Forrest’s post-vaccination condition reflects a change for 

the worse in her pre-vaccination condition inclusive of pain and disability as well as a 

physical deterioration in health during the months following her vaccination. Indeed, 

respondent agrees that Ms. Forrest’s condition deteriorated in the three years following 

her vaccination. (ECF No. 87, p. 12.) What respondent disputes is that this 

deterioration was vaccine-caused. (Id.) This is addressed relative to Loving prongs 

four through six below.

iv. Medical theory of causation (Loving prong four/Althen prong 

one)

Petitioner is required to present a persuasive medical theory of causation 

demonstrating that the influenza vaccine could have significantly aggravated Ms. 

Forrest’s preexisting shoulder condition. Althen, 418 F.3d at 1278. It is well-established 

in the Vaccine Program that compensation may be awarded for shoulder injuries on a 

cause-in-fact basis. See, e.g., A.P. v. Sec'y of Health & Human Servs., No. 17-784V, 

2022 WL 275785 (Fed. Cl. Spec. Mstr. Jan. 31, 2022); L.J. v. Sec'y of Health & Human 

Servs., No. 17-0059V, 2021 WL 6845593 (Fed. Cl. Spec. Mstr. Dec. 2, 2021); 

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

Cl. Spec. Mstr. Mar. 30, 2018), rev. den., 142 Fed. Cl. 329 (2019). However, 

petitioner’s medical theory must be supported by “reputable” scientific evidence and 

must “pertain[] specifically to the petitioner’s case.” Moberly, 592 F.3d at 1322. 

Petitioner may not merely rely on the fact that SIRVA was added to the Vaccine 

Injury Table to establish a medical theory for a cause-in-fact claim. Grant v. Sec’y of 

Health & Human Servs., 956 F.2d 1144, 1147-48 (Fed. Cir. 1992).12 The government’s 

12 In Grant, the Federal Circuit explained the distinction between Table and non-Table claims and quoted 

the legislative history of the Vaccine Act as follows:

If the petitioner sustained or had significantly aggravated an injury not listed in the Table, 

he or she may petition for compensation. If the petitioner sustained or had significantly 

aggravated an injury listed in the Table but not within the time period set forth in the Table, 

he or she may petition for compensation. In both these cases, however, the petition must 

affirmatively demonstrate that the injury or aggravation was caused by the vaccine. Simple 

similarity to conditions or time periods listed in the Table is not sufficient evidence of 

causation; evidence in the form of scientific studies or expert medical testimony is 

necessary to demonstrate causation for such a petitioner. (Such a finding of causation is 
17

recognition of “SIRVA” as a vaccine-caused injury was limited by the accompanying QAI 

criteria. In this case, I have already concluded for the reasons discussed above that 

petitioner has not met those criteria. Thus, if petitioner’s medical theory under Althen

prong one/Loving prong four was limited to taking judicial notice of the government’s 

recognition of SIRVAs as occurring in some contexts, petitioner’s case would 

necessarily have to fail under Althen prong two/Loving prong five, because the facts of 

petitioner’s case do not fall within the confines of that recognition. Accord L.J., 2021 WL 

6845593 (taking judicial notice of the Table Injury of SIRVA under Althen prong one and 

applying the Table SIRVA QAI as the basis for assessing Althen prong two); Tenneson, 

2018 WL 3083140 (same). To hold otherwise would be to expand the causal 

presumption afforded by the Vaccine Injury Table. 

Here, Dr. Bodor’s theory is not explained in depth, but exists in the form of two 

assertions. First, he opines that “[t]he mechanism of injury most likely involved injection 

of vaccine into the subacromial bursa and adjacent rotator cuff.” (Ex. 24, p. 4.) Among 

the accompanying citations, Dr. Bodor includes a publication of two case reports of 

which he is coauthor. In that report, he explains that “[w]e hypothesize that in both of 

our cases vaccine was injected into the subdeltoid bursa, causing a robust local 

immune and inflammatory response” ultimately leading to inflammation of the shoulder 

capsule due to the subdeltoid bursa being contiguous to the subacromial bursa. (Bodor 

& Montalvo, supra, at Ex. 26, p. 2.) Second, he opines that “the misplaced injection 

likely led to adhesive capsulitis.” (Ex. 24, p. 4.) This was the ultimate resulting 

condition in one of Dr. Bodor’s own two case reports. (Bodor & Montalvo, supra, at Ex. 

26, pp. 2-3.) Further to this, Dr. Bodor cites the Atanasoff article, which is well known in 

SIRVA litigation. In pertinent part, the Atanasoff authors hypothesized that:

In general, chronic shoulder pain with or without reduced shoulder joint 

function can be caused by a number of common conditions including 

impingement syndrome, rotator cuff tear, biceps tendonitis, osteoarthritis 

and adhesive capsulitis. In many cases these conditions may cause no 

symptoms until provoked by trauma or other events. Reilly et al. reviewed a 

series of shoulder ultrasound and MRI studies obtained in asymptomatic 

persons past middle age and found partial or complete rotator cuff tears in 

39% of those individuals. Therefore, some of the MRI findings in our case 

series, such as rotator cuff tears, may have been present prior to 

vaccination and became symptomatic as a result of vaccination-associated 

synovial inflammation. 

deemed to exist for those injuries listed in the Table which occur within the time period set 

forth in the Table.) 

Grant, 956 F.2d at 1147-48 (quoting H.R.Rep. No. 908, 99th Cong., 2d Sess., pt. 1, at 15 (1986), 

reprinted in 1988 U.S.C.C.A.N. 6344, 6356) (emphasis in Grant); see also Schick-Cowell v. Sec’y of 

Health & Human Servs., 18-656V, 2022 WL 619839 (Fed. Cl. Spec. Mstr. Feb. 8, 2022); A.P., 2022 WL 

275785; but see L.J., 2021 WL 6845593 (taking judicial notice of the Table Injury of SIRVA under Althen

prong one for case filed prior to inclusion of SIRVA on the Vaccine Injury Table, but decided after); 

Tenneson, 2018 WL 3083140 (same).
18

(Atanasoff et al., supra at Ex. 28, p. 3.)

For respondent, Dr. Bishop offers no critique that would challenge Dr. Bodor’s 

first assertion. In fact, she agrees that “[a] vaccine could cause some irritation of the 

shoulder joint . . . .” (Ex. A, p. 8.) Instead, Dr. Bishop contends with regard to Dr. 

Bodor’s second assertion that his theory conflates primary adhesive capsulitis and 

secondary adhesive capsulitis. (Ex. A, p. 9.) However, the distinction Dr. Bishop raises 

constitutes a Loving prong five rather than Loving prong four question. Dr. Bishop 

states in relevant part that “[p]rimary adhesive capsulitis, what Dr. Bodor is referring to 

in his report, is a condition that affects 3-5% of the population between ages of 30 and 

60, and only this type of adhesive capsulitis has been associated with SIRVA cases.”13

(Id. (citing Atanasoff et al., supra, at Ex. A, Tab 3; Beth Hibbs et al., Reports of atypical 

shoulder pain an dysfunction following inactivated influenza vaccines, Vaccine Adverse 

Event Reporting System (VAERS), 2010-2017, 38 Vaccine 1137 (2020) (Ex. A, Tab 

4)).) By Dr. Bishop’s description, primary adhesive capsulitis is idiopathic and 

“associated with capsular inflammation in the absence of a known lesion.” (Ex. A, p. 9.) 

In contrast, secondary adhesive capsulitis is a term used to describe “a constellation of 

conditions that result in stiff shoulder” secondary to “an underlying condition/pathology.” 

(Id.) Thus, Dr. Bishop is not actually challenging whether an inflammatory vaccine

response can cause adhesive capsulitis. She acknowledges that this association has 

been observed. Rather, she is observing that some cases of what appears to be 

adhesive capsulitis are otherwise explained by known shoulder dysfunction.14

In his motion response, respondent stresses Dr. Bishop’s statement that “[t]here 

is no literature at all to support that an influenza vaccine can cause progression of a 

rotator cuff tear or influence the progress course of pre-existing arthritis.” (ECF No. 87, 

pp. 12-13 (quoting Ex. A, p. 9.) Further to this, respondent argues in reference to both 

Dr. Bodor’s above-discussed case report and the Atanasoff article that “[a]lthough the 

Atanasoff article theorizes that vaccination could cause symptoms to manifest in 

patients with pre-existing, asymptomatic RTC tears, neither of these articles mention the 

possibility that a vaccination could actually cause progression of a pre-existing RTC tear 

or pre-existing shoulder OA.” (Id. at 13 (emphasis original).) Importantly, however, these 

assertions reflect respondent’s interpretation of Ms. Forrest’s clinical history rather than 

petitioner’s. They do not directly refute the causal theory petitioner actually presented, 

which is based on a vaccine-caused inflammatory irritation of the joint capsule and 

ultimately adhesive capsulitis rather than progression of the underlying conditions 

themselves.15 

13 In his response, Dr. Bodor took this statement as agreement that primary adhesive capsulitis is, in fact, 

associated with SIRVA without addressing the further contention that this would not extend to secondary 

adhesive capsulitis. (Ex. 31, p. 1.) Dr. Bishop noted this in her responding report. (Ex. C, p. 2.) This 

specific point was not addressed any further in any of the subsequent expert reports.

14 In fact, as discussed further with respect to Loving prong five, below, Dr. Bishop cites to literature that 

actually contends that the term “secondary adhesive capsulitis” is effectively a misnomer when applied in 

the manner Dr. Bishop invokes.

15 In Kelly v. Secretary of Health & Human Services, I explained that a limitation of the Atanasoff article in 

the context of significant aggravation is that it constitutes a descriptive analysis without comparison to 
19

v. Logical sequence of cause and effect connecting the 

vaccination and significant aggravation (Loving prong 

five/Althen prong two)

The second Althen prong/fifth Loving prong requires proof of a logical sequence 

of cause and effect showing that the vaccine was the reason for the injury, usually 

supported by facts derived from a petitioner's medical records. Althen, 418 F.3d at 

1278; Andreu ex re. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1375–

77 (Fed. Cir. 2009); Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 

1326 (Fed. Cir. 2006); Grant, 956 F.2d at 1148. However, medical records and/or 

statements of a treating physician do not per se bind the special master to adopt the 

conclusions of such an individual, even if they must be considered and carefully 

evaluated. See 42 U.S.C. §300aa-13(b)(1) (providing that “[a]ny such diagnosis, 

conclusion, judgment, test result, report, or summary shall not be binding on the special 

master or court”); Snyder v. Sec'y of Health & Human Servs., 88 Fed. Cl. 706, 746 n.67 

(2009) (“there is nothing . . . that mandates that the testimony of a treating physician is 

sacrosanct—that it must be accepted in its entirety and cannot be rebutted”). 

As discussed above, there is preponderant evidence that Ms. Forrest 

experienced increased pain and reduced range of motion post-vaccination relative to 

her prior baseline. Her primary care physician considered this an “exacerbation” of her 

prior shoulder complaints likely caused by her vaccination16 and her orthopedist 

subsequently diagnosed a post-vaccination onset of adhesive capsulitis with capsular 

background rates or controls and excludes subjects with preexisting shoulder conditions. 2022 WL 

1144997 at *22. The Atanasoff authors further explain that there are no diagnostic tests available to 

assess whether the shoulder dysfunction they observed was vaccine-caused, leaving only their ability to 

clinically isolate the onset of symptoms to identify post-vaccination shoulder injuries as a distinct entity. 

(Atanasoff et al., supra, at Ex. 28, p. 4.) Thus, while the Atanasoff hypothesis is not wholly irrelevant to 

the significant aggravation context, the article itself is not helpful in distinguishing under what 

circumstances it would be reasonable to conclude that a vaccine can cause a worsening of the clinical 

presentation of a preexisting condition that is already symptomatic. In Kelly, the petitioner overcame this 

limitation by providing epidemiology that showed a statistically significant risk of post-vaccination bursitis

where the Kelly petitioner himself had evidence of bursitis. Kelly, 2022 WL 1144997 at *22-23. Here, the 

specific expert presentations regarding adhesive capsulitis as discussed relative to both Loving prongs 

four and five, and the diagnosis of adhesive capsulitis arising post-vaccination, play a similar role. Had 

the contours of the expert opinions in this case been different, and had Dr. Bishop more directly 

challenged Dr. Bodor’s theory as a matter of general rather than specific causation, it is not clear that the 

literature Dr. Bodor relied upon would be persuasive without more.

16 To be clear, in identifying an “exacerbation” of Ms. Forrest’s condition, Dr. Allred does include a 

reference to a possible “progression” of Ms. Forrest’s rotator cuff tear (Ex. 4, p. 47), which I explained 

relative to Loving prong four is not petitioner’s medical theory of the case. However, considering his 

impression as a whole, it is clear that this is not the sum total of Dr. Allred’s opinion. He also cites a postvaccination inflammatory process, bursitis, and nerve injury as possible mechanisms. On the whole it is 

clear that his impression balances his knowledge of Ms. Forrest’s chronic conditions against her more 

acute presentation to opine that the chronic conditions alone do not explain her presentation. Although 

this ruling repeatedly references his use of the term “exacerbation” as a shorthand, the medical record as 

a whole reflects a medical opinion consistent with significant aggravation regardless of the specific use of 

that term.
20

irritability as an additional overlay to her preexisting rotator cuff disease. (Ex. 4, p .47; 

Ex. 2, pp. 32-33.) Based on his analysis of Ms. Forrest’s complete medical history and 

his theory of causation, petitioner’s expert opines that this constitutes a significant 

aggravation of her condition in the form of worsened symptoms and a vaccine-caused 

adhesive capsulitis. (Ex. 31.) Respondent’s contrary view raises two overarching 

questions: (1) whether Ms. Forrest’s adhesive capsulitis diagnosed post-vaccination 

must be understood as secondary to her preexisting shoulder dysfunction; and (2) 

whether Ms. Forrest’s post-vaccination presentation is explained by the natural 

progression of her preexisting condition. Respondent asserts the answer to both 

questions is yes, thereby defeating petitioner’s claim that Ms. Forrest’s vaccine did 

substantially contribute to a worsening of her condition. However, this is not 

persuasive.

There are significant limitations regarding Dr. Bishop’s opinion that Ms. Forrest’s 

adhesive capsulitis must necessarily be understood as secondary to her preexisting 

condition(s) to the exclusion of a vaccine-caused inflammatory process. First, the 

literature Dr. Bishop cites explains that the question is one of clinical judgment. While 

underlying shoulder pathology can be a cause of the symptoms of adhesive capsulitis, 

these materials do not support any contention that preexisting shoulder pathology per 

se explains adhesive capsulitis. Neviaser and Hannafin explain that “[d]iagnosis can be 

challenging as factors both intrinsic and extrinsic to the shoulder can cause stiffness 

and pain.” (Neviaser & Hannafin, supra, at Ex. 29, p. 1 (also filed as Ex. A, Tab 2).) 

“Distinguishing between primary or idiopathic disease and pain due to other causes can 

be difficult and there is frequent overlap.” (Id. at 2.) “Subtle clues in the history and 

physical examination allow discrimination of primary adhesive capsulitis from these 

other conditions.” (Id.) 

Here, although the medical records are not robust, the expressed views of the 

treating physicians are closer to petitioner’s view than respondent’s. Given his ongoing 

treatment relationship with Ms. Forrest spanning both her pre- and post- vaccination 

history, Dr. Allred was well positioned to exercise clinical judgment in determining 

whether Ms. Forrest’s own preexisting shoulder pain was exacerbated by extrinsic 

factors.17 The Federal Circuit has recognized that “treating physicians are likely to be in 

the best position to determine whether ‘a logical sequence of cause and effect show[s] 

that the vaccination was the reason for the injury.’” Capizzano, 440 F.3d at 1326

(quoting Althen, 418 F.3d at 1280); Nuttall v. Sec'y of Health & Human Servs., 122 Fed. 

Cl. 821, 832 (2015) (noting the importance of the prior treatment relationship in giving 

special weight to treating physician opinions), aff'd, 640 F. App'x 996 (Fed. Cir. 2016). 

Second, the literature Dr. Bishop cites further explains that the term “secondary 

adhesive capsulitis” is used in two distinct contexts. In some cases, it is used to refer to 

17 Ms. Forrest’s primary care records show that a number of different physicians were involved in her care 

in the years prior to her vaccination. (Ex. 4, passim.) However, Dr. Allred was the physician that saw Ms. 

Forrest during her last encounter prior to vaccination. (Id. at 40-43.) He was also involved in her care in 

an attending capacity during prior encounters where she had reported prior inciting events that had 

aggravated her shoulder pain. (Id. at 20-27.) Thus, he was familiar with both her overall history and her 

baseline just prior to vaccination.
21

“extra-articular cause(s) of shoulder stiffness without involvement of the joint capsule.” 

(Neviaser & Hannafin, supra, at Ex. 29, p. 2 (Ex. A, Tab 2).) This is the context in which 

secondary adhesive capsulitis may be explained by conditions such as glenohumeral 

arthritis and rotator cuff injury. (Id.) However, that use is effectively a misnomer. In 

contrast, “secondary adhesive capsulitis” may also be used to refer to isolated areas of 

capsular contracture that occur concurrently with other known injuries or diseases. (Id.) 

In that context, secondary adhesive capsulitis may be “indistinguishable from idiopathic 

adhesive capsulitis.” (Id.) “The differentiation between the stiff and painful shoulder 

without any joint capsule involvement and with capsule involvement (true adhesive 

capsulitis) must be established before a rational treatment can be prescribed.” (RJ 

Neviaser & TJ Neviaser, The frozen shoulder: diagnosis and management, 2223 CLIN.

ORTHOP. RELAT. RES. 59 (1987) (Ex. A, Tab 5).)18 “Although frozen shoulder and 

adhesive capsulitis are frequently used interchangeably, recognition that many 

conditions can cause a stiff and painful shoulder while adhesive capsulitis is a distinct 

pathological entity is essential for evaluating both patients and the literature.” (Neviaser 

& Hannafin, supra, at Ex. A, Tab 2, p. 1.) The cause of true adhesive capsulitis is not 

known, but it has been linked to many preceding factors, including trauma and 

autoimmune disease. (Id.) And importantly, as Dr. Bishop recognizes, it has also been 

linked to vaccination. (Ex. A, p. 9.) 

In this case, Dr. Widner’s treating orthopedic assessment does not use the 

specific terminology of “primary” or “secondary” to describe Ms. Forrest’s adhesive 

capsulitis; however, on physical examination he recorded “capsular irritability,” which 

strongly suggests his opinion was that Ms. Forrest had capsule involvement, i.e. true 

adhesive capsulitis. (Ex. 2, pp. 32-33.) Thus, Dr. Bishop is not persuasive with respect 

to her suggestion that Ms. Forrest’s own adhesive capsulitis is readily distinguishable 

from the type of primary or idiopathic adhesive capsulitis that is associated with 

vaccination. Dr. Bishop’s opinion on this point is also less persuasive because she 

acknowledges that Ms. Forrest did experience at least temporary irritation of the 

shoulder joint caused by her vaccination and therefore relies on the notion that Ms. 

Forrest’s subsequently diagnosed adhesive capsulitis is merely coincidental to this 

irritation despite the fact that her other shoulder dysfunction had existed for years prior

and despite seeming to accept that vaccinations can lead to adhesive capsulitis. (Ex. A, 

p. 8.) 

With regard to the second question raised by respondent’s defense, while it is 

undoubtedly true that rotator cuff tears and osteoarthritis can both progress over time 

generally, both Dr. Bishop and respondent acknowledge that this is not Ms. Forrest’s 

own history. Dr. Bishop stated that “[i]n addition to just the element of time, Ms. Forrest 

had many documented falls over the years and [it] is certainly possible that any of her 

falls, especially the ones that precipitated a call to see her doctor, could have led to 

progression of her rotator cuff tear and would have certainly aggravated her significant 

18 Respondent’s Exhibit A, Tab 5, appears to be only the abstract of the article by Neviaser & Neviaser. 

This quote from the abstract simply underscores the differentiation of adhesive capsulitis with capsular 

involvement specifically as “true” adhesive capsulitis, which is also consistent with the substance of the

Neviaser & Hannafin article. (See Neviaser & Hannafin, supra, at Ex. 29 (also filed as Ex. A, Tab 2).) 
22

underlying osteoarthritis. (Ex. A, p. 10.) Thus, even by respondent’s own 

characterization it is not the case that the progression of Ms. Forrest’s condition is 

explained merely by the passage of time or the general nature of her degenerative 

conditions as progressive. Indeed, while Dr. Bishop explains that it is a “hallmark” of 

osteoarthritis that “there are times when it flares up and times when it clams down,” she 

specifically couches these flares as constituting “aggravat[ions]” of the osteoarthritis. 

(Ex. A, p. 9.) In that context, respondent offers little reason for his disbelief that Ms. 

Forrest’s vaccination would constitute a further aggravating event occurring in the 

course of a condition he acknowledges to have otherwise been aggravated multiple 

times. As noted above, this is especially difficult to accept given that Dr. Bishop agrees 

that Ms. Forrest likely did suffer at least a limited inflammatory reaction within her 

shoulder joint. (Ex. A, p. 8.) 

To the extent Dr. Bishop relies on Ms. Forrest’s objective imaging to confirm the 

progression of Ms. Forrest’s preexisting conditions, the later imagining available for 

comparison post-dates the falls that Dr. Bishop agrees were likely to have been 

contributory. (Ex. A, p. 9 (citing Ex. 2, p. 42; Ex. 7, p. 36).) Thus, the imaging is not 

evidence of a “natural” progression of the underlying conditions and is not suggestive of 

the condition of Ms. Forrest’s shoulder between the time of her vaccination and the 

subsequent falls. Further to this, it was the opinion of Ms. Forrest’s primary care

physician, who followed her shoulder condition both before and after the vaccination, 

that the post-vaccination presentation constituted an “exacerbation” of her condition 

rather than being explained as part of a waxing and waning course of the condition. In 

any event, petitioner is not obligated to prove that Ms. Forrest’s ultimate outcome was 

worse than the expected course of her condition. Sharpe, 964 F.3d at 1082. Rather, 

petitioner is obligated to demonstrate that Ms. Forrest’s vaccination was a substantial 

factor that affected her condition. Id. (citing Locane v. Sec’y of Health & Human Servs., 

685 F.3d 1375 (Fed. Cir. 2012). Thus, even if Ms. Forrest’s later falls obscured whether 

her post-vaccination adhesive capsulitis meaningfully contributed to her later history, 

this would not defeat a claim based on the arc of symptoms she experienced in the 

months following her vaccination.

vi. Proximate temporal relationship between vaccination and 

significant aggravation (Loving prong six/Althen prong three)

The third Althen prong/sixth Loving prong requires establishing a “proximate 

temporal relationship” between the vaccination and the injury alleged. Althen, 418 F.3d 

at 1281. That term has been equated to the phrase “medically-acceptable temporal 

relationship.” Id. A petitioner must offer “preponderant proof that the onset of 

symptoms occurred within a timeframe which, given the medical understanding of the 

disorder's etiology, it is medically acceptable to infer causation.” de Bazan v. Sec'y of 

Health & Human Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). 

Here, petitioner argues that the medical records reflect an onset of Ms. Forrest’s 

post-vaccination symptoms that was “almost immediate,” stressing Ms. Forrest’s initial 

report to her primary care provider that she had severe pain during the two days 

following her vaccination. (ECF No. 85, p. 19.) Petitioner argues this is appropriate 
23

timing when compared against the 48-hour onset reflected on the Vaccine Injury Table 

for SIRVA. (Id.) Although this is not a Table SIRVA claim, petitioner argues that she 

has set forth a mechanism of significant aggravation that is “essentially the same as any 

SIRVA injury.” (Id. at 16.) Thus, for example, the above-discussed Atanasoff article 

likewise indicates that a clear majority of subjects experienced onset of shoulder pain 

within 24 hours of vaccination. (Atanasoff et al., supra, at Ex. 28, p. 2 (Table 1).) 

Respondent does not dispute any of these points but contends that the two days of 

post-vaccination pain that Ms. Forrest reported are separate from her ongoing 

symptoms that are better attributed to her osteoarthritis and her rotator cuff tear. (ECF 

No. 87, p. 12.) In particular, respondent argues that “petitioner improperly conflates the 

brief period of pain decedent reported in the days immediately following vaccination with 

the ongoing progression of her RTC tear and OA” and further that “considering the 

record as a whole, Dr. Bishop opines that any symptoms after May 15, 2015, were 

unrelated and instead represented the natural course of her pre-existing shoulder 

pathology.” (Id. at 21.) There are two issues with this line of reasoning.

First, to the extent respondent appears to contend Ms. Forrest suffered only a 

couple days of distinct pain, this misinterprets Ms. Forrest’s initial encounter with her 

primary care physician on January 19, 2015. (Ex. 4, p. 46.) Respondent is correct that 

the history of present illness specifically reports that petitioner had “severe pain and 

difficulty lifting her right should[er] during the 2 days following her flu shot.” (Id.) 

However, it also states that “[t]he pain has caused multiple sleepless nights since that 

time and persists until today.” (Id.) Thus, the medical records do not support any

contention that the reference to two days of severe post-vaccination pain represented 

an isolated and unrelated phenomenon. Even accounting for Dr. Bishop’s opinion that 

the intermittency of symptoms reported as part of this history is consistent with how 

osteoarthritis and rotator cuff tears present, this has far less significance in the context 

of significant aggravation. Dr. Allred, who had previously treated Ms. Forrest, was 

aware of Ms. Forrest’s preexisting shoulder dysfunction and concluded that the history 

she reported was consistent with an exacerbation of the symptoms of her own 

condition. (Ex. 4, pp. 20, 24, 40, 47.) Inherent to that opinion would be an 

understanding that the complained of symptoms are consistent with known 

symptomology of the preceding condition only worse than they had been before.

Second, respondent’s reliance on the May 15, 2015, follow up encounter is also 

misplaced. Respondent contends that the fact that Ms. Forrest’s condition was “almost 

resolved” is evidence that it was more likely “associated with a mild irritation caused by 

her vaccination.” (ECF No. 87, p. 21 (quoting Ex. A, p. 8).) While respondent is correct 

that this record provides a history that Ms. Forrest’s pain “has slowly been improving” 

and, in fact, reportedly was “almost resolved,” her medical records do not reflect this as 

the termination of either the course of her condition or her relevant treatment of that

condition. (Ex. 4, p. 50.) Specifically, although Dr. Allred recorded “interval 

improvement” in Ms. Forrest’s shoulder pain, he referred her to physical therapy at that 

time. (Id. at 51.) Moreover, Ms. Forrest subsequently sought further follow up 

treatment from an orthopedist where in July of 2015 she received her adhesive 
24

capsulitis diagnosis based in part on a history of more severe symptoms over the prior 

six months. (Ex. 2, p. 33.)

c. Factor Unrelated

Once petitioner has satisfied her own burden pursuant to the Loving test, the 

burden shifts to respondent to demonstrate that the injury was caused by factors 

unrelated to vaccination. § 300aa-13(a)(1)(B); Deribeaux v. Sec’y of Health & Human 

Servs., 717 F.3d 1363, 1367 (Fed. Cir. 2013). In order to meet his burden, respondent 

must demonstrate by preponderant evidence “that a particular agent or condition (or 

multiple agents/conditions) unrelated to the vaccine was in fact the sole cause (thus 

excluding the vaccine as a substantial factor).” de Bazan, 539 F.3d at 1354. In this 

case, respondent has argued that Ms. Forrest’s vaccination was not a substantial factor 

in bringing about her alleged injury. Respondent’s arguments have been considered in 

the context of the above Loving analysis. Because his arguments were unpersuasive in 

that context, they likewise fail to suggest he has met his own burden of proof.

VII. 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 has 

demonstrated that Ms. Forrest suffered a significant aggravation of her pre-existing 

shoulder injury caused-in-fact by her December 16, 2014, flu vaccination. A separate 

damages order will be issued.

IT IS SO ORDERED.

s/Daniel T. Horner

Daniel T. Horner

Special Master