FORCHHEIMER v. SECRETARY OF HEALTH AND HUMAN SERVICES

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 24-0823V
CLAIRE FORCHHEIMER,
Petitioner,
v.
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Chief Special Master Corcoran
Filed: October 1, 2025
Jonathan Joseph Svitak, Shannon Law Group, P.C., Woodridge, IL, for Petitioner.
Tyler King, U.S. Department of Justice, Washington, DC, for Respondent.
FINDINGS OF FACT1
On May 28, 2024, Claire Forchheimer filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that that she suffered a Table shoulder injury related to
vaccine administration (“SIRVA”) caused by an influenza (“flu”) vaccine received on
December 19, 2022. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
1 Because this Fact Ruling contains a reasoned explanation for the action taken in this case, it must be
made publicly accessible and will be posted on the United States Court of Federal Claims' website, and/or
at https://www.govinfo.gov/app/collection/uscourts/national/cofc, in accordance with the E-Government
Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government
Services). This means the Fact Ruling will be available to anyone with access to the internet. In
accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other
information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I
agree that the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2018).
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For the reasons discussed below, I find that Petitioner likely suffered the residual
effects of her condition for more than six months, and that the onset of her shoulder pain
likely began within 48 hours of vaccination.
I. Procedural History
On November 6, 2024, Respondent filed a status report stating that he was
amenable to informal resolution of this SIRVA claim, and the parties negotiated (ECF
Nos. 12-20). However, they soon reached an impasse (ECF No. 21).
Respondent filed a Rule 4(c) Report objecting to compensation on two grounds
(ECF No. 23). First, Respondent argues that Petitioner had not established that she
experienced residual effects for more than six months, noting that she treated her injury
until April 4, 2023 (less than four months after vaccination), and did not seek treatment
again until five months later. Rule 4 Report at *5. Respondent also asserts that Petitioner’s
delay in seeking care until 45 days after vaccination, coupled with the record of that visit
noting that her pain began “4 days or so” after vaccination, prevents her from establishing
that her pain began within 48 hours after vaccination. Id. at *6.
II. Relevant Evidence
A. Medical Records
Petitioner received the vaccine alleged as causal in her left deltoid on December
19, 2022. Ex. 2 at 368. Forty-five days later, on February 2, 2023, Petitioner had a video
appointment with Dr. Rujeko Nyachoto for left shoulder pain. Id. at 378. Petitioner
explained that she had received a flu vaccine on December 20th,3 and had “stiffness since
then.” Id. The record further states that it “[w]as 4 days or so after that the soreness was
noticed.” Id. After a shoulder x-ray came back normal, Dr. Nyachoto referred Petitioner to
a sports medicine specialist the following week. Id. at 395.
On February 23, 2023, Petitioner saw sports medicine physician assistant (“PA”)
Joseph Gomez for left shoulder pain. Ex. 2 at 397. The record of this visit states that her
pain started on December 19, 2022, and the injury is listed as “[f]lu shot.” Id. Her pain was
three out of ten and worse with activity. Id. at 397-98. On examination, her left shoulder
active range of motion in abduction was 150 degrees (compared to 170 degrees on the
right side). Id. at 399. In all other measurements, her left shoulder range of motion was
identical to her right shoulder. Id. The record stated that Petitioner would be moving to
3 Petitioner actually received the vaccine on December 19th, as noted. Either Petitioner incorrectly recalled
the date, or the provider incorrectly recorded it. In any event, Petitioner related her pain to vaccination, and
this minor discrepancy does not affect my ruling herein.
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New York in April. Id. PA Gomez explained that her symptoms could be related to SIRVA,
overuse, or a rotator cuff strain. Id. at 400. He recommended physical therapy (“PT”), anti-
inflammatory medication, and activity modification. Id. He added that if the symptoms
persisted, she could consider a cortisone injection in the future. Id.
The following month (March 20, 2023), Petitioner underwent a PT evaluation. Ex.
2 at 411. She reported a three-month history of left shoulder pain following a flu vaccine
in December, explaining that “[s]hortly after the vaccine, she developed intractable
shoulder pain.” Id. At the present time, she had pain with end-range motion overhead. Id.
On examination, her shoulder range of motion was within normal limits except that she
had painful end-range flexion and abduction. Id. at 412. She had not been exercising due
to the pain, and wanted to know if her symptoms were permanent. Id. The therapist noted
that she had signs and symptoms consistent with possible Parsonage-Turner syndrome,
neuralgic amyotrophy, or subacromial pain syndrome. Id.
On March 24, 2023, Petitioner saw neurologist Dr. Nicholas Parziale. Ex. 2 at 418.
Dr. Parziale performed an EMG, which was normal, showing no electrodiagnostic
evidence of left brachial plexopathy. Id. at 420. PA Gomez then ordered an MRI, which
showed trace subacromial/subdeltoid bursitis, with no abnormality of the deltoid
musculature. Id. at 423.
Petitioner attended a second PT session on April 4, 2023. Ex. 2 at 428. The record
indicates that she reported “status quo,” which I interpret to mean that her symptoms were
largely unchanged from her evaluation a couple of weeks earlier. Id. at 429. The exercises
were not worsening her pain, although she did feel fatigue and weakness in her left
shoulder. Id. She was considering a steroid injection. Id. Her shoulder range of motion
was within normal limits except for painful end-range flexion and abduction. Id. at 430.
She had positive results on the Neer’s impingement test and a scapular test, which the
therapist stated was “suggestive of decreased neuromuscular control of scapular
stabilizers.” Id.
Petitioner did not seek treatment for her shoulder again until six months later, on
September 25, 2023, when she underwent a PT evaluation. Ex. 5 at 3. The record from
this evaluation lists an injury date of December 19, 2022 (the date of vaccination). Id. She
stated that after a flu vaccination in December she began having left shoulder pain. Id.
She had some testing and was given exercises in PT, which helped. Id. She now wanted
a second opinion, explaining that during the summer she was using her left arm to catch
a ball and “it flared up again to 3/10 but constant pain. L Shoulder feels better since then
but wants to get it checked out.” Id. At present, she did not have any left shoulder pain,
but she was avoiding upper extremity workouts at the gym to avoid flare ups. Id. On
examination, her shoulder range of motion was within normal limits, without pain. Id. She
had mild pain with left shoulder empty can testing and mild tenderness upon palpation to
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her left deltoid. Id. at 4. Although additional PT was recommended, it appears that
Petitioner did not pursue further treatment.
B. Testimonial and Other Evidence
Petitioner filed two declarations in support of her claim.4 Exs. 1, 6. She states that
the vaccine was administered higher on her arm than she is used to, and she felt
“immediate pain” at a level of three out of ten after vaccination. Ex. 1 at ¶ 5. She describes
it as a stinging pain, with some burning and stiffness. Id. Later that day on a plane, she
needed help putting her carry-on luggage into the overhead bin. Id. Within the first 48
hours after vaccination, her pain level increased to four out of ten, with stinging and
occasional sharp pain. Id. at ¶ 6. She had difficult lifting her arm above shoulder height
and “extreme difficulty” performing workouts involving her shoulders such as pull ups,
push ups, planks, holding weights, and using a rowing machine. Id. at ¶ 7. Sleeping was
difficult, and she avoided sleeping on her left side. Id.
For the first four weeks, Petitioner self-treated with muscle relaxers, stretching, and
ibuprofen, expecting the pain to go away with rest. Ex. 1 at ¶ 9. Instead, it worsened, so
on January 13, 2023, she reached out to her doctor for an appointment. Id.
Petitioner was offered a steroid injection, which she declined as she was nervous
to receive another injection in her injured shoulder. Ex. 1 at ¶¶ 12, 18. After her second
PT appointment on April 4, 2023, she was given a home exercise program. Id. at ¶ 19.
She states that at that time, her left shoulder remained symptomatic (although she does
not detail her symptoms). Ex. 6 at ¶ 1.
Less than two weeks later, on April 15, 2023, Petitioner moved from California to
New York, and thus had to discontinue her PT sessions, although she stuck with her
home exercises. Ex. 1 at ¶ 20. She states that she continued to have pain and limitations
with her left shoulder over the next five months. Id. She tried to resume activities she had
enjoyed before vaccination, but was very cautions, finding that sudden movements of
her left arm triggered a sharp increase in her pain. Id. When she slept on her left side, her
left shoulder would be painful the following day. Id. During this time, she was also working
toward establishing care with a new doctor in New York and obtaining new health
insurance, which did not allow her to seek formal treatment. Id.
Petitioner states that she stayed in Europe for three months that summer and thus
could not attend in-person appointments, and did not want to incur expenses seeing a
doctor outside of the United States. Ex. 6 at ¶ 2. In early July 2023, she reached out to a
PT facility asking about virtual PT sessions for her shoulder pain. Id. After several weeks
4 Although Petitioner labeled these filings as affidavits, they are not notarized. Nonetheless, they are
acceptable as declarations. 28 U.S.C. § 1746.
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of communication, she was told that the facility could not accommodate virtual sessions.
Id. Thus, she continued with her home exercises until she returned to the United States.
Id.
On September 7, 2023, Petitioner returned to California for a visit. Ex. 1 at ¶ 21.
While there, she contacted a physical therapist about her shoulder because she “was
more familiar with the medical providers” there. Id. Thus, she saw a physical therapist in
California on September 25th. Id. at ¶ 22. As of June 5, 2024 (when she signed her
declaration), Petitioner “continue[d] to have occasional flare-ups of left shoulder pain,
especially with sudden movements” or during exercise using weights. Id. at ¶ 23.
Petitioner has also filed Exhibit 7, which consists of email correspondence between
Petitioner and a consultant with Professional Physical Therapy between July 10 and
August 16, 2023. Ex. 7 at 1-4. In the correspondence, Petitioner reports that she was
traveling outside of the country and wanted to “set up a virtual session with a physical
therapist to follow up on a SIRVA injury (and get a second opinion).” Id. at 1. The
Professional Physical Therapy consultant ultimately told Petitioner on August 15th that
she could only be seen in person. Id. at 3.
III. Legal Standard
Before compensation can be awarded under the Vaccine Act, a petitioner must
preponderantly demonstrate all matters required under Section 11(c)(1), including the
factual circumstances surrounding his or her claim. Section 13(a)(1)(A). In making this
determination, the special master or court should consider the record as a whole. Section
13(a)(1). Petitioner’s allegations must be supported by medical records or by medical
opinion. Id.
To resolve factual issues, the special master must weigh the evidence presented,
which may include contemporaneous medical records and testimony. See Burns v. Sec'y
of Health & Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993) (explaining that a special
master must decide what weight to give evidence including oral testimony and
contemporaneous medical records). “Medical records, in general, warrant consideration
as trustworthy evidence. The records contain information supplied to or by health
professionals to facilitate diagnosis and treatment of medical conditions. With proper
treatment hanging in the balance, accuracy has an extra premium. These records are
also generally contemporaneous to the medical events.” Cucuras v. Sec’y of Health &
Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).
To overcome the presumptive accuracy of medical records 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)). The Federal Circuit has
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“reject[ed] as incorrect the presumption that medical records are accurate and complete
as to all the patient’s physical conditions.” Kirby v. Sec’y of Health & Human Servs., 997
F.3d 1378, 1383 (Fed. Cir. 2021) (explaining that a patient may not report every ailment,
or a physician may enter information incorrectly or not record everything he or she
observes).
In addition to requirements concerning the vaccination received and the lack of
other award or settlement,5 a petitioner must establish that he or 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 he or she received. Section 11(c)(1)(C). The Vaccine
Act further includes a “severity requirement,” pursuant to which a petitioner demonstrate
that they “suffered the residual effects or complications of such illness, disability, injury,
or condition for more than 6 months after the administration of the vaccine . . . .” Section
11(c)(1)(D).
“[T]he fact that a Petitioner has been discharged from medical care does not
necessarily indicate that there are no remaining or residual effects from her alleged
injury.” Morine v. Sec’y of Health & Human Servs., No. 17-1013, 2019 WL 978825, at *4
(Fed. Cl. Spec. Mstr. Jan. 23, 2019); see also Herren v. Sec’y of Health & Human Servs.,
No. 13-1000V, 2014 WL 3889070, at *3 (Fed. Cl. Spec. Mstr. July 18, 2014) (“a discharge
from medical care does not necessarily indicate there are no residual effects”). “A
treatment gap . . . does not automatically mean severity cannot be established.” Law v.
Sec’y of Health & Human Servs., No. 21-0699V, 2023 WL 2641502, at *5 (Fed. Cl. Spec.
Mstr. Feb. 23, 2023) (finding severity requirement met where Petitioner sought care for
under three months and had met physical therapy goals but still lacked full range of motion
and experienced difficulty with certain activities, then returned to care nearly five months
later reporting stiffness and continuing restrictions in motion); see also Peeples v. Sec’y
of Health & Human Servs., No. 20-0634V, 2022 WL 2387749 (Fed. Cl. Spec. Mstr. May
26, 2022) (finding severity requirement met where Petitioner sought care for four months,
followed by fifteen-month gap); Silvestri v. Sec’y of Health & Human Servs., No. 19-
1045V, 2021 WL 4205313 (Fed. Cl. Spec. Mstr. Aug. 16, 2021) (finding severity
requirement satisfied where Petitioner did not seek additional treatment after the five-
month mark).
The most recent version of the Table, which can be found at 42 C.F.R. § 100.3,
identifies the vaccines covered under the Program, the corresponding injuries, and the
time period in which the particular injuries must occur after vaccination. Section 14(a).
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48
5 In summary, a petitioner must establish that he 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 and has not filed a civil suit or collected an award or settlement for his or her injury. Section
11(c)(1)(A)(B)(E).
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hours of the administration of a flu vaccine. 42 C.F. R. § 100.3(a)(XIV)(B). The criteria
establishing a SIRVA under the accompanying Qualifications and Aids to Interpretation
(“QAI”) are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests
as shoulder pain and limited range of motion occurring after the
administration of a vaccine intended for intramuscular administration in the
upper arm. These symptoms are thought to occur as a result of unintended
injection of vaccine antigen or trauma from the needle into and around the
underlying bursa of the shoulder resulting in an inflammatory reaction.
SIRVA is caused by an injury to the musculoskeletal structures of the
shoulder (e.g. tendons, ligaments, bursae, etc.). SIRVA is not a neurological
injury and abnormalities on neurological examination or nerve conduction
studies (NCS) and/or electromyographic (EMG) studies would not support
SIRVA as a diagnosis (even if the condition causing the neurological
abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder
prior to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies occurring
after vaccine injection;
(ii) Pain occurs within the specified time-frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which
the intramuscular vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the
patient’s symptoms (e.g. NCS/EMG or clinical evidence of radiculopathy,
brachial neuritis, mononeuropathies, or any other neuropathy).
42 C.F.R. § 100.3(c)(10).
A special master may find that the first symptom or manifestation of onset of an
injury occurred “within the time period described in the Vaccine Injury Table even though
the occurrence of such symptom or manifestation was not recorded or was incorrectly
recorded as having occurred outside such period.” Section 13(b)(2). “Such a finding may
be made only upon demonstration by a preponderance of the evidence that the onset [of
the injury] . . . did in fact occur within the time period described in the Vaccine Injury
Table.” Id.
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IV. Finding of Fact
A. Severity
Petitioner sought care until three and a half months after vaccination, followed by
a nearly six-month gap in treatment. At the time of the last PT session before the
treatment gap, she was still experiencing pain with end-range flexion and abduction, as
well as fatigue and weakness. Her shoulder range of motion was within normal limits, and
she had positive results on impingement and scapular testing. Thus, she continued to
experience mild symptoms at this time.
Thereafter, she moved across the country and spent the summer outside of the
United States. She attempted to obtain PT services virtually, but was unable to do so.
When she returned to her prior state, she attended another PT evaluation. At that time,
now nine months after vaccination, she felt some improvement, although she continued
to have mild pain with testing and palpation. Thus, at this point her shoulder condition
was essentially resolved.
For purposes of the statutory severity requirement, the question is when her
shoulder pain resolved, and whether that occurred before mid to late June 2023. Although
this cannot be ascertained with precision, I find that the evidence preponderates in favor
of a finding that, more likely than not, Petitioner’s shoulder pain continued until late June
– although likely not much beyond that, given that when she was evaluated in September
she had virtually no symptoms, and that she proposed that catching a ball that summer
may have triggered a flare up of symptoms – suggesting that symptoms which had gone
away had returned with that episode.
B. Onset
The record supports the conclusion that Petitioner’s shoulder pain began within 48
hours of vaccination. Although she did not seek care for 45 days, this pattern of some
initial treatment delay is seen in SIRVA cases with some frequency, and does not defeat
a claim when the record otherwise suggests Petitioner consistently reported an onset of
less than two days, as required by the Table. Baskin v. Sec’y of Health & Human Servs.,
No. 21-2207V, 2025 WL 1891826, at *7 (Fed. Cl. Spec. Mstr. June 2, 2025) (“treatment
delay by itself does not undermine a favorable onset finding”); Graczyk v. Sec’y of Health
& Human Servs., No. 21-0376V, 2023 WL 4573868 (Fed. Cl. Spec. Mstr. June 16, 2023)
(finding onset within 48 hours where Petitioner first sought care two months after
vaccination).
Although the first treatment record states that Petitioner reported soreness “4 days
or so” after vaccination, it also says that she had stiffness “since” vaccination. Ex. 2 at
378. And when she saw PA Gomez a few weeks later, she reported pain that started on
December 19th – the date of vaccination. Id. at 397. Similarly, at her PT evaluation in
March 2023, she related her pain to vaccination, stating that it began “[s]hortly after”
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vaccination. Id. at 411. And her testimonial evidence describing “immediate pain”
supports these records. I find that the single reference to pain beginning four days after
vaccination is not sufficient to outweigh the other records that support a finding of pain
within 48 hours of vaccination.
CONCLUSION AND SCHEDULING ORDER
Petitioner suffered a mild injury, which she treated for three and a half months with
two sessions of PT, in addition to an MRI and EMG testing. After a six-month gap,
Petitioner attended another PT evaluation which appears to have been directed more at
learning how to exercise and move safely than treatment of pain. As such, I would expect
compensation in this case to be very low. I recognize that the parties have already
attempted negotiations, and encourage them to make one final attempt. If they are unable
to do so, they shall propose a briefing schedule.
Accordingly:
• Respondent shall file, by no later than Monday, November 03, 2025, an
amended Rule 4(c) Report or a status report stating how he wishes to
proceed.
• Petitioner shall file, by no later than Monday, November 17, 2025, a joint
status report providing an update on the parties’ discussions. If they have
not reached agreement, Petitioner shall propose an agreed-upon briefing
schedule.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
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