D.G. and U.S. Postal Service, Highland Hills Station, Dallas, TX (Board decision, October 26, 2017)

ECAB remand decision. The Board returned an unresolved issue to OWCP for further action. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

D.G., a postal employee with accepted conditions, sought authorization for an adjustable bed, mattress, and pillow. OWCP denied the request after a hearing. The Board found that a medical-necessity letter relied on by the hearing representative was missing from the case record sent to it. It set aside the denial and remanded so OWCP could complete the record and decide the request again.

Decision snapshot

• Authority: 20 C.F.R. § 501.2(c)(1).
• Outcome: May 13, 2016 equipment authorization denial set aside and remanded.
• Key point: The Board could not review a denial based on evidence absent from the appeal record.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.G., Appellant
)
)
and ) Docket No. 17-1098
) Issued: October 26, 2017
U.S. POSTAL SERVICE, HIGHLAND HILLS
)
STATION, Dallas, TX, Employer
)
__________ )

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. 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 work- related 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).

2 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.

3