United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

D.G., Appellant

and

U.S. POSTAL SERVICE, HIGHLAND HILLS 

STATION, Dallas, TX, Employer

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Docket No. 17-1098

Issued: October 26, 2017

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

COLLEEN DUFFY KIKO, Judge

On September 20, 2016 appellant filed a timely appeal from a May 13, 2016 merit 

decision of the Office of Workers’ Compensation Programs (OWCP).1 In the May 13, 2016 

decision, an OWCP hearing representative affirmed a November 12, 2015 decision that denied a 

request for authorization of an Ergo adjustable base bed with Tempur-pedic mattress and pillow. 

OWCP accepted that on August 23, 2010 appellant sustained brachial neuritis or 

radiculitis; lumbar sprain; major depression, recurrent episode; chronic pain syndrome; cervical 

spinal stenosis; and impotence of organic origin.2 Appellant stopped work and was placed on the 

periodic compensation rolls. In August 2013 Dr. Ronnie D. Shade, an attending Board-certified 

orthopedic surgeon, requested authorization for a queen-size bed. In an April 18, 2014 letter of 

medical necessity, Dr. Shade recommended an Ergo adjustable base bed with Tempur-pedic

mattress. On May 13, 2014 Dr. Ronald Blum, a Board-certified orthopedic surgeon and OWCP 

medical adviser, reviewed the record and concluded that the requested equipment was not 

 

1 Appellant timely requested oral argument pursuant to section 501.5(b) of Board procedures. 20 C.F.R. 

§ 501.5(b). By order dated September 8, 2017, the Board exercised its discretion and denied the request, finding 

that the arguments on appeal could adequately be addressed based on the case record. Order Denying Request for 

Oral Argument, Docket No. 17-1098 (issued September 8, 2017). 

2 On October 24, 2012 appellant had an authorized anterior cervical discectomy. 
2

medically necessary. Dr. Shade continued to request authorization for the bed. In a June 11, 

2014 decision, OWCP denied authorization for the requested bed and mattress. After a timely 

hearing request, on December 17, 2014an OWCP hearing representative found a conflict in 

medical evidence between Dr. Shade and Dr. Blum and remanded the case to OWCP to obtain an 

impartial evaluation regarding the need for the recommended bed/mattress. OWCP referred 

appellant to Dr. Dale R. Allen, a Board-certified orthopedic surgeon, for an impartial evaluation. 

In a June 11, 2015 report, Dr. Allen opined that, while the requested items would give appellant 

some subjective pain relief, it would not be considered likely to cure or lessen his need for 

compensation or give him any long-term benefit or relief of the symptoms caused by the workrelated injury. In a November 12, 2015 decision, OWCP denied authorization for the Ergo 

adjustable base bed with Tempur-pedic mattress and pillow. 

After a timely hearing request, a hearing was held on March 17, 2016. The hearing 

transcript indicates that appellant submitted a February 25, 2016 letter of medical necessity from

Dr. Shade which the hearing representative indicated was being placed in the record as Exhibit 1. 

The hearing representative and appellant discussed the report at the hearing. By decision dated 

May 13, 2016, an OWCP hearing representative affirmed the November 12, 2015 decision. She 

discussed both Dr. Allen’s June 11, 2015 report and the report of Dr. Shade dated February 25, 

2016, submitted by appellant at the March 17, 2016 hearing. The hearing representative 

specifically described elements of Dr. Shade’s report. 

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.3 Evidence may not be incorporated by reference, and

evidence from another claimant’s case file may not be used.4 All evidence that forms the basis 

of a decision must be in that claimant’s case record.5

The hearing representative’s May 13, 2016 decision referenced a February 25, 2016 letter 

of medical necessity that appellant submitted at the March 17, 2016 hearing and was placed into 

evidence by OWCP’s hearing representative as Exhibit 1. She relied on this medical evidence in 

denying appellant’s request for authorization of the requested items. This report is not found in 

the case record before the Board in this appeal. Due to this oversight, the Board is not in a 

position to make an informed decision regarding appellant’s request for authorization.6 

As the record lacks sufficient evidence for the Board to render an informed decision, the 

case shall be remanded to OWCP for further development. As noted, all evidence that forms the 

 

3

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

(June 2011). 

4

Id.

5

Id.

6

See L.W., Docket No. 17-0526 (issued May 12, 2017).
3

basis of a decision must be included in the case record.7 After OWCP has developed the record 

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

request for authorization of an Ergo adjustable bed base with Tempur-pedic mattress and pillow.

IT IS HEREBY ORDERED THAT the May 13, 2016 decision of the Office of 

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

proceedings consistent with this order of the Board.

Issued: October 26, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

 

7

Supra note 3.