United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

G.K., Appellant

and

U.S. POSTAL SERVICE, NEW HYDE PARK 

ANNEX, New Hyde Park, NY, Employer

__________________________________________

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Docket No. 18-1594

Issued: March 8, 2019

Appearances: Case Submitted on the Record

Stephen V. Barszcz, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

On August 15, 2018 appellant, through counsel, filed a timely appeal from a June 12, 2018 

merit decision of the Office of Workers’ Compensation Programs (OWCP). The Clerk of the 

Appellate Boards docketed the appeal as No. 18-1594.2

On October 17, 2017 appellant, then a 51-year-old letter carrier, filed an occupational 

disease claim (Form CA-2) alleging that on January 13, 2017 he first became aware that his 

bilateral knee osteoarthritis, left knee chondromalacia, and left knee degenerative joint disease had 

 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for legal 

or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. § 501.9(e). 

No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An attorney or 

representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject to fine or 

imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 The Board notes that following the June 12, 2018 decision, OWCP received additional evidence. Appellant also 

submitted additional evidence on appeal. However, the Board’s Rules of Procedure provides: “The Board’s review 

of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence 

not before OWCP will not be considered by the Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, 

the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.
2

been caused or aggravated by his federal employment. He stated that prior to a February 4, 2014 

left knee work injury that he had no problems with his knees. 

By decision dated January 29, 2018, OWCP denied appellant’s occupational disease claim,

finding that the evidence of record was insufficient to establish causal relationship between the 

diagnosed bilateral knee conditions and the accepted factors of his federal employment. In denying 

appellant’s claim, it referenced medical evidence contained in OWCP File No. xxxxxx681,

including reports from Dr. Joseph Stubel, a treating physician Board-certified in orthopedic 

surgery and sports medicine. On March 20, 2018 counsel requested reconsideration and provided 

additional evidence. By decision dated June 12, 2018, OWCP denied modification.

The Board finds that this case is not in posture for decision. Pursuant to 20 C.F.R. 

§ 501.2(c)(1), the Board’s review of a case is limited to the evidence in the case record that was 

before OWCP at the time of its final decision. Decisions on claims are based on the written record, 

which may include forms, reports, letters, and other evidence of various types such as photographs, 

videotapes, or drawings.3 Evidence may not be incorporated by reference, nor may evidence from 

another individual’s case file be used.4 Evidence contained in another of the claimant’s case files 

may be used, but a copy of that evidence should be placed into the case file being adjudicated.5 

All evidence that forms the basis of a decision must be in that claimant’s case record.6

In adjudicating the present occupational disease claim, File No. xxxxxx897, OWCP 

specifically referenced medical evidence obtained from his prior traumatic injury claim, File No. 

xxxxxx681, which was accepted on April 7, 2014 for left knee sprain. However, it did not combine 

the two case records or incorporate the referenced evidence into the current case record.7 The 

Board is therefore not in a position to make an informed decision regarding appellant’s entitlement 

to FECA benefits.8 The case shall be remanded to OWCP to administratively combine case File 

Nos. xxxxxx897 and xxxxxx681. Following this and any other further development as deemed 

necessary, it shall issue a de novo decision regarding appellant’s occupational disease claim under 

OWCP File No. xxxxxx897.

 

3 Federal (FECA) Procedure Manual, Part 2 -- Claims, Initial Development of Claims, Chapter 2.800.5(a)

(June 2011).

4

Id.

5

Id.

6

Id.

7 See Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)

(February 2000) (cases should be combined when correct adjudication of the issues depends on frequent crossreferencing between files).

8 See C.R., Docket No. 17-1262 (issued May 21, 2018); K.P., Docket No. 15-1945 (issued February 10, 

2016); M.C., Docket No. 15-1706 (issued October 22, 2015).
3

IT IS HEREBY ORDERED THAT the June 12, 2018 decision of the Office of Workers’

Compensation Programs is set aside and the case is remanded for further action consistent with 

this order.

Issued: March 8, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board