United States Department of Labor

Employees’ Compensation Appeals Board

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K.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Sioux Falls, SD, Employer

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Docket No. 18-1571

Issued: July 29, 2019

Appearances: Case Submitted on the Record

John S. Evangelisti, 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

JANICE B. ASKIN, Judge

On August 14, 2018 appellant, through counsel, filed a timely appeal from an August 3, 

2018 decision of the Office of Workers’ Compensation Programs. The Clerk of the Appellate 

Boards docketed the appeal as No. 18-1571.

On April 14, 2012 appellant, then a 51-year-old former food service worker, filed an 

occupational disease claim (Form CA-2) alleging injuries to her left shoulder and cervical spine as 

a result of her federal employment duties. She indicated that she first became aware of her claimed 

conditions on January 12, 2010. On the reverse side of the claim form, the employing 

 

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

establishment indicated that it had removed appellant from employment effective 

December 13, 2010.

2

By decision dated September 6, 2012, OWCP denied appellant’s occupational disease 

claim finding that the medical evidence of record was insufficient to establish causal relationship. 

Appellant subsequently exercised various appeal rights, including appeals to the Board, but OWCP 

continued to deny modification of its prior decision. In a March 13, 2018 order, the Board 

instructed OWCP to reconsider the April 2, 2015 report of Dr. Jack L. Rook, a Board-certified 

physiatrist, who found that appellant’s employment through 2007 worsened her neck and left 

shoulder condition.

3

On remand, OWCP issued an August 3, 2018 decision where it again denied modification, 

finding that appellant had not established causal relationship. In evaluating Dr. Rook’s April 2, 

2015 opinion on causal relationship, it noted that he had not discussed other relevant medical 

evidence, including an October 29, 2007 cervical magnetic resonance imaging (MRI) scan and

medical reports dated April 13 and 22, 2009. OWCP identified what it considered to be pertinent 

findings from the above-noted evidence and explained how this information, and Dr. Rook’s 

failure to consider it, undermined his April 2, 2015 opinion on causal relationship.

The Board finds that the 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.4 Evidence may not be incorporated by reference, nor may evidence from 

“another claimant’s case file” be used.5 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.6 

All evidence that forms the basis of a decision must be in that claimant’s case record.7

The October 29, 2007 MRI scan and the April 13 and 22, 2009 medical reports, which 

OWCP relied upon in finding Dr. Rook’s April 2, 2015 opinion insufficient to establish causal 

relationship, are not included in the electronic case record now before the Board. Although OWCP 

relied upon the aforementioned reports in determining appellant’s entitlement to FECA benefits, 

it neglected to include the referenced information in the current case record. Because of this 

oversight, the Board is not in a position to make an informed decision regarding appellant’s 

 

2 OWCP assigned the present claim File No. xxxxxx782. Appellant has a prior claim for a March 28, 2007 traumatic 

injury under File No. xxxxxx664, accepted for bilateral shoulder strain and cervical intervertebral disc degeneration. 

Appellant’s claims have not been administratively combined.

3 Order Remanding Case, Docket No. 17-0969 id.

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

(June 2011).

5

Id.

6

Id.

7

Id.
3

entitlement to FECA benefits.8 Therefore, the case shall be remanded to OWCP for further 

development including administratively combining the claim files. As noted, all evidence that 

forms the basis of a decision must be included in the case record.9 After OWCP has developed 

the record consistent with the above-noted directive, it shall issue a de novo decision regarding 

appellant’s entitlement to FECA benefits with respect to her April 14, 2012 occupational disease 

claim.

IT IS HEREBY ORDERED THAT the August 3, 2018 decision of the Office of 

Workers’ Compensation Programs is set aside and the case is remanded for further action 

consistent with this order of the Board.

Issued: July 29, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Janice B. Askin, Judge

Employees’ Compensation Appeals Board

 

8 See O.R., Docket No. 18-0013 (issued April 9, 2018); K.P., Docket No. 15-1945 (issued February 10, 2016); M.C., 

Docket No. 15-1706 (issued October 22, 2015).

9 Supra note 4.