United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.L., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PROTECTION, 

San Diego, CA, Employer

__________________________________________

)

)

)

)

)

)

)

)

)

Docket No. 20-0901

Issued: July 27, 2021

Appearances: Case Submitted on the Record

John L. DeGeneres, Esq., for the appellant1

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

ALEC J. KOROMILAS, Chief Judge

PATRICIA H. FITZGERALD, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

On March 19, 2020 appellant, through counsel, filed a timely appeal from a February 21, 

2020 merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

Federal Employees’ Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

 

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 Appellant also appealed a purported February 24, 2020 decision concerning on overpayment of compensation. 

While the case record contains a February 24, 2020 preliminary overpayment determination, it does not contain a final 

adverse decision of OWCP concerning an overpayment. Therefore, the matter is not currently before the Board. See 

20 C.F.R. §§ 501.2(c) and 501.3. 

3 5 U.S.C. § 8101 et seq. The Board notes that following the February 21, 2020 decision, OWCP received additional

evidence. 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

has jurisdiction over the merits of this case.4 The Clerk of the Appellate Boards assigned Docket 

No. 20-0901.

On October 20, 2011 appellant, then a 49-year-old border patrol agent, filed a traumatic 

injury claim (Form CA-1) alleging that on October 18, 2011 he sustained sprains of his left ankle, 

right knee, left shoulder, and right finger when he stepped on loose rocks in a steep canyon and 

lost his footing while in the performance of duty. OWCP accepted appellant’s claim under the 

current file, OWCP File No. xxxxxx939, for sprains of the left shoulder/upper arm, left rotator 

cuff, and left ankle; right knee contusion; and medial meniscus tear of the right knee.5 By decision 

dated February 21, 2020, OWCP determined that appellant had no greater than six percent 

permanent impairment of his left upper extremity, for which he had previously received schedule 

award compensation.

Prior to filing his claim for the October 18, 2011 traumatic injury, OWCP previously had 

accepted a number of conditions in connection with several separate compensation claims. Under 

OWCP File No. xxxxxx447, OWCP accepted that on January 4, 1999, appellant sustained a lateral 

collateral ligament sprain of the right knee and it authorized right knee arthroscopy, which was 

performed on March 25, 1999. Under OWCP File No. xxxxxx412, OWCP accepted that on 

January 11, 2005, he sustained right knee chondromalacia and medial meniscus tear of the right 

knee. Under OWCP File No. xxxxxx775, OWCP accepted that on February 28, 2008, appellant 

sustained internal derangement and medial meniscus tear of the left knee.

The Board, having duly considered the matter, 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.6 Evidence may not be 

incorporated by reference, nor may evidence from another claimant’s case file be used.7 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.8 All evidence that forms the basis of a decision must 

be in that claimant’s case record.9

 

4 Appellant submitted a timely request for oral argument before the Board. 20 C.F.R. § 501.5(b). Pursuant to the 

Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 20 C.F.R. § 501.5(a). In 

support of appellant’s oral argument request, counsel asserted that oral argument should be granted because OWCP 

committed an error of law. The Board, in exercising its discretion, denies appellant’s request for oral argument 

because the arguments on appeal can adequately be addressed in a decision based on a review of the case record. Oral 

argument in this appeal would further delay issuance of a Board decision and not serve a useful purpose. As such, the 

oral argument request is denied and this decision is based on the case record as submitted to the Board.

5 Appellant underwent left shoulder arthroscopy on February 8, 2012 and right shoulder arthroscopy on 

July 11, 2012. Both procedures were authorized by OWCP.

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

(June 2011).

7

Id.

8

Id.

9

Id. See also G.O., Docket No. 18-1483 (issued June 20, 2019).
3

In adjudicating appellant’s present claim, OWCP File No. xxxxxx939, OWCP specifically 

referenced medical evidence obtained from earlier claims, i.e., OWCP File Nos. xxxxxx447, 

xxxxxx412, and xxxxxx775. For example, OWCP referenced a March 16, 2009 OWCP decision 

granting a schedule award for 15 percent permanent impairment of the left lower extremity issued 

under OWCP File No. xxxxxx775. Although the case record contains a copy of this schedule 

award decision, it does not contain copies of the medical evidence that served as the basis for the

schedule award. Similarly, the case record contains a March 7, 2000 OWCP decision granting a 

schedule award for two percent permanent impairment of the right lower extremity, issued under 

OWCP File No. xxxxxx447, but it does not contain copies of the medical evidence that served as 

the basis for the schedule award. The Board notes that OWCP’s February 21, 2020 decision,

issued under the present claim, contains permanent impairment determinations for appellant’s left 

upper extremity, left lower extremity, and right upper extremity, and that such determinations

necessarily involve evaluating whether or not previously granted schedule awards for permanent 

impairment are duplicative of present assessments of permanent impairment. OWCP’s procedures 

provide that cases should be administratively combined when correct adjudication of the issues 

depends on frequent cross-reference between files.10 However, OWCP did not administratively 

combine the case records related to appellant’s schedule award claim or fully incorporate the 

relevant evidence into the current case record. As noted, all evidence that forms the basis of a 

decision must be included in the case record.11 Because OWCP neglected to include evidence 

from OWCP File Nos. xxxxxx447, xxxxxx412, and xxxxxx775 that was used to form the basis for 

its determination regarding appellant’s schedule award claim in the current case record, the Board 

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

benefits.12 Therefore, the case shall be remanded to OWCP to administratively combine OWCP 

File Nos. xxxxxx447, xxxxxx412, xxxxxx775, and xxxxxx939. Following this and other such 

further development as deemed necessary, it shall issue a de novo decision regarding appellant’s 

schedule award claim.

 

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

(February 2000).

11 See supra note 9.

12 See L.H., Docket No. 17-1960 (issued August 16, 2018); K.P., Docket No. 15-1945 (issued February 10, 2016); 

M.C., Docket No. 15-1706 (issued October 22, 2015).
4

IT IS HEREBY ORDERED THAT the February 21, 2020 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further 

proceedings consistent with this order of the Board.

Issued: July 27, 2021

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board