United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

H.H., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Redding, CA, Employer 

__________________________________________ 

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Docket No. 14-1985 

Issued: June 26, 2015 

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 15, 2014 appellant filed a timely application for review of a June 24, 2014 

merit decision of the Office of Workers’ Compensation Programs (OWCP) reducing appellant’s 

compensation on the basis that he had the capacity to earn wages as an information clerk, 

according to the Department of Labor, Dictionary of Occupational Titles (DOT) No. 237.367-

022, at the rate of $320.00 per week. The Board docketed the appeal as No. 14-1985. On appeal 

appellant contends, inter alia, that OWCP completely ignored the reports of his treating 

physician. 

Having reviewed the case record submitted by OWCP, the Board finds that this case is 

not in posture for decision. 

On February 3, 2011 OWCP accepted that appellant sustained patellar tendinitis, left after 

kneeling in the performance of duty as a mail processing clerk on October 7, 2010.1

 It paid 

compensation benefits. By decision dated June 24, 2014, OWCP reduced appellant’s 

 1

 OWCP accepted appellant’s prior claim for left knee internal derangement, localized primary arthritis in the left 

leg, and left knee medial meniscus tear resulting from slipping in a puddle of water on December 25, 2003 while in 

the performance of duty as a mail processing clerk. OWCP File No. xxxxxx623. 
2

compensation to reflect that he had the capacity to earn wages as an information clerk at the rate 

of $320.00 per week. 

The Board finds that, in reducing appellant’s compensation, OWCP did not consider all 

of the relevant medical evidence. OWCP indicated that it based its decision on the April 1, 2013 

report of the second opinion physician, Dr. Charles F. Xeller, a Board-certified orthopedic 

surgeon, who opined that appellant could return to work in a strictly sedentary position. 

However, OWCP never considered the reports of Dr. Paul Schwartz, appellant’s treating Boardcertified orthopedic surgeon. 

The Board notes that in a May 14, 2013 progress report, Dr. Schwartz listed appellant’s 

diagnoses as knee joint replacement, left knee joint arthrofibrosis and generalized left anterior 

knee pain. Dr. Schwartz noted that while he would agree with Dr. Xeller’s assessment regarding 

history and current ambulatory status and knee function, he would dispute his contention that 

appellant could return to a strictly sedentary job. He noted that, while walking and moving is 

painful for appellant, prolonged sitting, such as would be required by a sedentary job, would also 

cause him significant discomfort. Dr. Schwartz opined that, at present, he did not feel that 

appellant would be able to return to a regular line of work, including sedentary work, even with 

vocational rehabilitation. He explained that appellant had a primary knee replacement on the 

right, but that the majority of problems seem to be related to his left knee, which has had a 

primary arthroplasty and three revision surgeries, and that this would be the primary cause of 

appellant’s lasting disability. He also was concerned that returning appellant to a work 

environment would expose him to a risk of reinjury of his knees, even from the most innocuous 

of events. 

Because Board decisions are final with regard to the subject matter appealed,2

 it is crucial 

that OWCP address all relevant evidence received prior to the issuance of its final decision.3 As 

OWCP did not review Dr. Schwartz’s report, accordingly, the Board finds that this case is not in 

posture for decision as OWCP did not review all the relevant evidence before issuing its 

decision. On remand, OWCP shall review all evidence of record and, following any further 

development of the medical evidence deemed necessary, it shall issue a de novo decision on 

appellant’s claim.4

 

 2

 20 C.F.R. § 501.6(d). 

3 See William A. Couch, 41 ECAB 548, 553 (1990). 

4

 Appellant submitted new evidence on appeal. However, the Board lacks jurisdiction to review evidence for the 

first time on appeal. See 20 C.F.R. § 501.2(c). Appellant may submit this evidence to OWCP on remand. 
3

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ 

Compensation Programs dated June 24, 2014 is set aside, and the case is remanded for further 

consideration consistent with this order. 

Issued: June 26, 2015 

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