United States Department of Labor 

Employees Compensation Appeals Board 

__________________________________________ 

C.B., Appellant 

and 

DEPARTMENT OF THE NAVY, PUGET 

SOUND NAVAL SHIPYARD, Bremerton, WA, 

Employer 

__________________________________________ 

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Docket No. 15-337 

Issued: May 1, 2015 

Appearances: Case Submitted on the Record

Cathy C. Deno, for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On November 24, 2014 appellant, through his representative, filed a timely appeal from 

June 18 and November 4, 2014 nonmerit decisions of the Office of Workers’ Compensation 

Programs (OWCP). Pursuant to the Federal Employees’ Compensation Act1

 (FECA) and 20 

C.F.R. §§ 501.2(c) and 501.3, the Board does not have jurisdiction over the merits of this case. 

ISSUE 

The issue is whether OWCP properly denied appellant’s April 3 and August 8, 2014 

requests for reconsideration pursuant to 5 U.S.C. § 8128(a). 

FACTUAL HISTORY 

On October 31, 2013 appellant, then a 45-year-old tile and plate setter, filed an 

occupational disease claim alleging that he sustained a left shoulder condition as a result of 

 1

 5 U.S.C. § 8101 et seq.
2

excessive repetitive motion in the performance of his duties. He first became aware of his 

condition and realized that it resulted from his employment on August 1, 2013. The employing 

establishment stated that appellant had been working light duty since July 17, 2012 due to a 

previously accepted lower back injury (File No. xxxxxx203). 

In an October 25, 2013 statement, appellant reported that he had worked for the 

employing establishment since April 2001 as a tile setter. He injured his back at work and was 

let go in 2008. After appellant received treatment he returned to work as a tile setter until 2010 

when the physical activity reaggravated his back and pain injections no longer worked. He 

explained that shoulder pain was common in his job so it was normal for him to have issues with 

his shoulders. Appellant noted that in August 2013 his shoulder started to cause him great pain 

again. When he did not get better after two months he sought medical treatment. Appellant 

reported that he was diagnosed with extensive problems of the left shoulder and that it was 

explained to him that years of repetitive motion had damaged his shoulders. He related that both 

his physician and physical therapist told him that his injuries were caused by the excessive 

amount of repetitive motion involved in the tile setter trade. Appellant stated that he had no 

outside activities that involved repetitive use of his left arm and that he did not suffer any injuries 

after August 1, 2013. 

Appellant submitted various office notes and reports by Gregory Howard Cain, MD, 

dated October 15 to November 20, 2013. In various office notes, he diagnosed shoulder 

impingement, scapular, and dyskinasis. In a November 20, 2013 report, Dr. Cain stated that 

appellant was disabled from work for six weeks due to a fracture of clavicle. He noted that 

appellant had restrictions of no lifting with left arm and may return to light lifting with gradual 

progression in early January 2014. In a November 20, 2013 e-mail, Dr. Cain informed appellant 

that a magnetic resonance imaging (MRI) scan revealed a small break at the end of his clavicle. 

He advised appellant that the acromioclavicular (AC) joint next to the break had some arthritis 

and swelling that was pushing down on his tendon. 

By letter dated November 21, 2013, OWCP advised appellant that the evidence submitted 

was insufficient to establish his claim and requested documents to establish the alleged 

employment factors and a diagnosed condition as a result of his employment. 

Appellant submitted a position description for tile and plate setter and his March 26, 2001 

functional placement examination by the employee health unit, which indicated that he met the 

functional requirements of the job listed. 

Appellant submitted various employee health unit records and work limitation forms 

dated September 10, 2013 to January 14, 2014 by Dr. Mark A. Malakooti, Board-certified in 

public health and general preventive medicine, and Drs. Garrett W. Duckworth and Richard 

Spinach, physicians who specialize in occupational medicine. In these reports, the physicians 

noted appellant’s complaints regarding his left shoulder and that he worked as a tile setter. They 

reported that appellant had been examined in order to extend his current work limitations. 

Appellant was diagnosed with chronic left shoulder pain, left shoulder impingement, and closed 

fracture of the clavicle distal third. 
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In reports dated November 27 and December 16, 2013, Mary E. Bethune, a certified 

physician assistant in occupational medicine, examined appellant for follow up of the left 

shoulder. She related that he worked as a tile setter and noted diagnoses of impingement 

syndrome of left shoulder, closed fracture of distal clavicle, and degenerative joint disease of 

shoulder. Ms. Bethune noted that appellant’s strength, pain, and range of motion had improved. 

She observed that he still had decreased range of motion with overhead reaching or reaching 

behind the back. Ms. Bethune also noted tender left AC joint, distal clavicle and decreased range 

of motion in external rotation. She reported that a November 20, 2013 MRI scan revealed 

irregularity of the subarticular aspect of the clavicle consistent with a nondisplaced subarticular 

fracture. Dr. Bethune diagnosed left shoulder impingement syndrome and closed fracture of the 

clavicle. She advised appellant to return to modified duty. 

In a December 1, 2013 statement, appellant reported that since September 2012 he had 

been on permanent restrictions for a chronic neck and back injury. He worked temporarily at an 

IT job which ended in September 2013. Appellant explained that he started feeling left shoulder 

discomfort on or around August 1, 2013. He reported that his tile setter activities were 

performed on a daily basis from February 2003 until September 2013 for 40-hour work weeks. 

Appellant noted that his hobbies included normal household chores such as doing laundry, 

carrying split firewood, riding a lawnmower, and taking care of the animals. He also rode a 

street motorcycle in nice weather about six times a year. 

In a January 16, 2014 statement, Robin Jones, an Injured Worker Program Manager, 

stated that on July 17, 2012 appellant was assigned to the Injured Workers Program when it was 

determined that the employing establishment could no longer accommodate his temporary 

physical limitations due to his back condition. She noted that his physical limitations became 

permanent on September 13, 2012. Ms. Jones provided the various job assignments that 

appellant worked from July 2012 to the present with their descriptions and physical limitations. 

In a decision dated February 5, 2014, OWCP denied appellant’s claim finding insufficient 

medical evidence to establish causal relationship. It explained that none of the medical evidence 

established that his left shoulder was causally related to repetitive motion at work. 

Following OWCP’s denial, appellant submitted a January 14, 2014 duty status report by 

Dr. Gregory Gutke, Board-certified in preventive and occupational medicine, who indicated that 

appellant could work limited duty with restrictions of no pulling, pushing, grasping, or fine 

manipulation with the left arm. Dr. Gutke stated that appellant began to experience pain in his 

left shoulder starting at the end of July 2013 after working a tech job for one year. 

Appellant submitted additional employee health unit records and work limitation forms 

dated February 3 to May 12, 2014 by Drs. Duckworth and Larry B. Smith, Board-certified in 

family medicine, for follow-up complaints with his left shoulder and request to extend his 

current work limitations. He was diagnosed with left shoulder pain and left shoulder 

impingement. 

In a February 13, 2014 return to work note, Dr. Brad R. MacKinnon, a Board-certified 

family practitioner, indicated that appellant was disabled from work as of August 1, 2013. He 
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authorized appellant to return to work with limitations of no lifting with the left arm, no ladders, 

and no typing. 

In reports dated March 4, 2014, Dr. James M.T. Garrity, Board-certified in preventive 

and occupational medicine, examined appellant for a left shoulder condition that had been 

symptomatic since August 1, 2013. He related that appellant had a claim, that had yet to be 

accepted, associated with his job as a tile setter which required intensive repetitive shoulder work 

for the past 13 years at the employing establishment. Dr. Garrity noted that appellant also 

suffered from chronic neck and back complaints. Upon examination, he observed asymmetry of 

the AC joints with the left more prominent and reduced range of motion in internal rotation. 

Dr. Garrity also noted minimal impingement. He diagnosed left shoulder sprain with rotator cuff 

impingement. Dr. Garrity stated that appellant had impingement in concert with scapulothoracic 

bursitis. He related that appellant did intensive shoulder work which included reaching above 

chest and shoulder and impact activities using chipping guns to bring up tile. Dr. Garrity 

explained that “without clear cause for [appellant’s] fracture, this is associated with micro trauma 

in athletes and the analogy would be made with some of the risk factors for shipyard welders that 

do shoulder intensive work.” He opined that appellant’s “shoulder intensive work as a tile setter 

to a degree of medical probability caused [appellant’s] impingement syndrome.” 

On April 3, 2014 OWCP received appellant’s request for reconsideration. 

By decision dated June 18, 2014, OWCP denied appellant’s April 3, 2014 reconsideration 

request finding that the evidence submitted was insufficient to warrant further merit review 

under 5 U.S.C. § 8128(a). It determined that the medical evidence submitted was not relevant to 

the issue of causal relationship. 

On August 8, 2014 OWCP received appellant’s request for reconsideration. Appellant 

also resubmitted employee health unit records dated November 2013, a November 20, 2013 MRI 

scan report by Dr. Cain, and Dr. Garrity’s March 4 and July 17, 2014 report. 

In June 12 and July 24, 2014 employee health unit reports, Dr. Larry B. Smick, an 

osteopathic physician specializing in preventative/occupational medicine, related appellant’s 

history of medical conditions and request to extend his work limitations due to his left shoulder 

condition. He authorized appellant to return to work with restrictions listed in the work 

limitation form. 

In a July 15, 2014 report, Dr. Garrity examined appellant for follow up of shoulder 

complaints. Upon examination, he observed continued tenderness of the AC joint to palpation as 

well as dyskinesia and impingement on abduction to a mild degree and less on flexion. 

Dr. Garrity diagnosed left shoulder impingement syndrome. He noted that appellant worked as a 

tile setter from 2001 to 2008 and returned again in 2010 to 2012. Dr. Garrity related that 

appellant’s activities as a tile setter included being bent over, raising his arms and reaching out in 

above chest and above shoulder level postures, lifting tiles in boxes of 60 to 80 pounds onto his 

shoulders, and carrying them about the shipyard. He stated that it was “reasonable to state on a 

more likely than not basis that [appellant’s] left shoulder impingement syndrome is a workrelated occupational disease arising directly out of his work as a tile setter that includes activities 

above his chest and shoulder level.” Dr. Garrity also reported that lifting heavy boxes above 
5

chest level onto appellant’s shoulder posed additional risk for shoulder impingement syndrome. 

He further noted that, although appellant had a period prior to reporting the injury and an interim 

during his work where he was not directly involved in tile setting, there was sufficient duration 

to attribute his shoulder condition to the workplace as a tile setter at the employing 

establishment. 

In a July 17, 2014 report, Dr. Garrity noted his disagreement with OWCP’s denial 

decision. He stated that there was a “sufficient body of published articles that indicate force, 

repetition, posture, and shoulder intensive activities consistent with that of a tile setter is causal 

on a more likely than not basis for [appellant’s] left shoulder impingement syndrome.” 

Dr. Garrity explained that this condition often resulted in bursitis and tendinitis with 

impingement. This was reasonably objectified on his examination. Dr. Garrity noted that 

appellant did have a break in his employment from the tile setter. He stated that appellant’s: 

“initiating work in 2001 to 2008 and then again from 2010 as a tile setter, where 

[appellant] was often kneeling, resting on an extremity above shoulder level, and 

working above chest and shoulder level with force, repetition, and these particular 

postures above chest and shoulder level that he has achieved sufficient medical 

evidence based on reported medical evidence already published that his condition 

is work related on a more likely than no basis.” 

In a decision dated November 4, 2014, OWCP again denied appellant’s August 8, 2014 

request for reconsideration finding that the evidence submitted was insufficient to warrant further 

merit review under 5 U.S.C. § 8128(a). It determined that the medical evidence submitted was 

cumulative and substantially similar to the evidence previously submitted. 

LEGAL PRECEDENT 

Section 8128(a) of FECA vests OWCP with discretionary authority to determine whether 

to review an award for or against compensation.2 OWCP’s regulations provide that OWCP may 

review an award for or against compensation at any time on its own motion or upon application. 

The employee shall exercise his or her right through a request to the district Office.3

To require OWCP to reopen a case for merit review pursuant to FECA, the claimant must 

provide evidence or an argument that: (1) shows that OWCP erroneously applied or interpreted 

a specific point of law; (2) advances a relevant legal argument not previously considered by 

OWCP; or (3) constitutes relevant and pertinent new evidence not previously considered by 

OWCP.4

 

 2

 5 U.S.C. § 8128(a); see also D.L., Docket No. 09-1549 (issued February 23, 2010); W.C., 59 ECAB 372 (2008). 

3

 20 C.F.R. § 10.605; see also R.B., Docket No. 09-1241 (issued January 4, 2010); A.L., Docket No. 08-1730 

(issued March 16, 2009). 

4 Id. at § 10.606(b); see also L.G., Docket No. 09-1517 (issued March 3, 2010); C.N., Docket No. 08-1569 (issued 

December 9, 2008). 
6

A request for reconsideration must also be submitted within one year of the date of 

OWCP’s decision for which review is sought.5 A timely request for reconsideration may be 

granted if OWCP determines that the employee has presented evidence or provided an argument 

that meets at least one of the requirements for reconsideration. If OWCP chooses to grant 

reconsideration, it reopens and reviews the case on its merits.6

 If the request is timely but fails to 

meet at least one of the requirements for reconsideration, OWCP will deny the request for 

reconsideration without reopening the case for review on the merits.7

ANALYSIS 

Along with his April 3, 2013 and August 8, 2014 reconsideration requests, appellant 

submitted new medical reports from Dr. Garrity dated March 4 to July 17, 2014. In the March 4, 

2014 report, Dr. Garrity reviewed appellant’s history of left shoulder condition, described his 

employment duties as a tile setter, and conducted an examination. He opined that appellant’s 

“shoulder intensive work as a tile setter to a degree of medical probability caused his 

impingement syndrome.” In reports dated July 15 and 17, 2014, Dr. Garrity provided findings 

on examination and diagnosed left shoulder impingement syndrome. He noted that appellant 

worked as a tile setter from 2001 to 2008, and returned again in 2010 to 2012. Dr. Garrity 

further described appellant’s duties as a tile setter, which included being bent over, raising his 

arms and reaching above chest and above shoulder level postures, lifting tiles in boxes of 60 to 

80 pounds onto his shoulders, and carrying them about the shipyard. He opined that appellant’s 

left shoulder condition was “a work-related occupational disease arising directly out of 

[appellant’s] work as a tile setter.” Dr. Garrity further explained that, although appellant had a 

period prior to reporting the injury, and an interim period where he was not directly involved in 

tile setting, there was sufficient duration to attribute his shoulder condition to his work as a tile 

setter at the employing establishment. 

The Board notes that Dr. Garrity’s opinion directly addressed the grounds upon which 

OWCP denied appellant’s occupational disease claim as it addressed the issue of causal 

relationship.8

 In its February 5, 2014 decision, OWCP denied appellant’s finding insufficient 

medical evidence to establish that he sustained a left shoulder condition causally related to his 

repetitive duties at work. In his medical reports, Dr. Garrity provides an accurate description of 

appellant’s duties as a tile setter and an accurate history of his employment. He opines that 

appellant’s work as a tile setter attributed to his shoulder condition. For these reasons, the Board 

finds that Dr. Garrity’s reports constituted relevant and pertinent new evidence not previously 

considered by OWCP. As this meets one of the standards for obtaining a merit review of this 

case, the Board finds that OWCP improperly denied appellant’s requests for reconsideration. 

Accordingly, appellant is entitled to a merit review. 

 5 Id. at § 10.607(a). 

6 Id. at § 10.608(a); see also M.S., 59 ECAB 231 (2007). 

7 Id. at § 10.608(b); E.R., Docket No. 09-1655 (issued March 18, 2010). 

8 See N.L., Docket No. 13-1763 (issued April 9, 2014). 
7

Reopening a claim for merit review does not require a claimant to submit all evidence 

that may be necessary to discharge his or her burden of proof.9 If OWCP should determine that 

the new evidence submitted lacks probative value, it may deny modification of the prior 

decision, but only after the case has been reviewed on the merits.10 The Board will remand the 

case for a merit review. After such further development of the evidence as might be necessary, 

OWCP shall issue a de novo decision. 

CONCLUSION 

The Board finds that OWCP failed to reopen appellant’s case for further reconsideration 

of the merits pursuant to 5 U.S.C. § 8128(a). 

ORDER 

IT IS HEREBY ORDERED THAT the November 4 and June 18, 2014 decisions of the 

Office of Workers’ Compensation Programs are remanded for further action consistent with this 

decision of the Board. 

Issued: May 1, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board 

 9 See Kenneth R. Mroczkowski, 40 ECAB 855 (1989); Helen E. Tschantz, 39 ECAB 1382 (1988). 

10 See Dennis J. Lasanen, 41 ECAB 933 (1990).