should not engage in walking without a back brace. The deputy commissioner noted that the Bureau had authorized appellant to procure a brace pursuant to Dr. Machett's recommendation, and stated that the question was whether the brace would increase appellant's capacity for work. He directed that appellant be reexamined to ascertain his physical limitations and work capacity with the back brace, and that in the meantime he should be paid compensation for temporary total disability except for the periods when he worked. Accordingly, on October 2, 1969, appellant was examined by Dr. William H. Walton, Jr., a Board-certified orthopedic surgeon, at the Bureau's request. Appellant stated that during the preceding 6 weeks he had worn his brace during extreme activity. In Dr. Walton's opinion, appellant had a 10 percent permanent functional impairment of the body as a whole due to a spondylolysis. On November 4, 1969, the Bureau medical adviser reviewed Dr. Walton's opinion and stated that appellant's physical limitations were the same as those which he reported in March of that year. On November 11, 1969, a vocational rehabilitation adviser of the Bureau concluded that the evaluation of appellant's work capacity made on April 4, 1969, was valid currently and that appellant could now perform the work of a real estate salesman. Accordingly, the Bureau determined that as of December 18, 1969, appellant was no longer totally disabled for work and was capable of performing the duties of a real estate salesman, at a beginning wage of $250 per month. Applying the rule of the Shadrick case,1 the Bureau found that appellant could earn $250 per month, or $57.69 per week, as a real estate salesman. It compared such earnings with the current pay rate of the job which he held at the time of his employment injury, and determined that he had a 59 percent loss of wage-earning capacity, effective December 18, 1969, and it adjusted his compensation accordingly. 1 Appellant protested the decision, and requested reconsideration. He contended that he was not physically able to perform the duties of a real estate salesman. He stated that soon after he began doing this work in October 1968, he learned that it was necessary to walk a great deal, measure rooms in houses, measure land, post signs, crawl into attics to inspect wiring and roofs, enter basements to inspect heating and plumbing, and crawl into crawl spaces under the floor for inspection purposes. He stated that he was unable to perform some of these tasks and therefore was compelled to give up the position. He indicated that it was not 1 Albert C. Shadrick, 5 ECAB 376. realistic to consider him capable of earning $250 per month, or $57.69 per week, as a real estate salesman, since in the 11 weeks during which he performed this work his gross earnings were $326, and his expenses amounted to $265, not including the expenses of operating his own car in this work, leaving net earnings of $61 for the period, or slightly more than $5 per week. He submitted a copy of his income tax return for 1968 which showed these figures. He added that he had earned no income during the year 1969, although he had registered for employment with the Colorado State Employment office. He stated that in recent months his back had been causing more pain, and he had had episodes lasting from 1 to 3 weeks during which it was very difficult for him to walk or sit, and he had to either stand or lie flat on his back. In support of his petition for reconsideration, appellant submitted a letter from C. H. Donelson, President of C. H. Donelson, Inc., dated December 9, 1969, which read as follows: "Mr. D. R. Shively was employed by my office from October 1, 1968 to December 20, 1968 as a full time real estate sales man. "During his employment, he obtained several listings and "Mr. Shively's reason for leaving was because of a previous "In my opinion, Mr. Shively was encountering considerable difficulty in performing his physical tasks or duties on the job, and we felt that he was unable to perform his duties at this time under the circumstances." On January 8, 1970, a vocational rehabilitation adviser of the Bureau reconsidered the evaluation of appellant's work capacity in the light of his contentions, and concluded, on the basis of information concerning the job of a real estate salesman contained in the Occupational Outlook Handbook and the 1966 supplement to the Dictionary of Occupational Titles, publications of the U.S. De partment of Labor, that he was capable of performing the duties of that position. He stated that such publications indicated that this work involved walking, standing, or sitting, but they did not indicate that a real estate salesman is required to perform duties enumerated by appellant, involving crawling, excessive walking, or unusual bending; that such duties are part of a real estate appraiser's job, and not that of a real estate salesman. On the basis of the vocational rehabilitation adviser's report as to the duties of a real estate salesman, on January 20, 1970, a Bureau medical adviser concluded that appellant should be able to fulfill the physical requirements of that job. On February 10, 1970, the Bureau issued a compensation order denying modification of its prior decision. It found that as of December 18, 1969, appellant was capable of performing the 'duties of a real estate salesman, at a beginning wage of $250 per month, as previously found; that this job was light to sedentary in nature, and did not involve crawling, excessive walking or lifting, or unusual bending, but that such activities are part of a real estate appraiser's job. On appeal, appellant contends that the Bureau's decision was based on the duties and earnings of an experienced real estate salesman with established clients and connections, and not on the duties and earnings of a beginning real estate salesman. The Board finds that the evidence supports appellant's contention that in his commuting area the duties of a real estate salesman include physical activities which exceed his physical limitations. Furthermore, it was improper in determining appellant's loss of wage-earning capacity to use a position for which only a commission is paid, without making provision for payment of compensation during the beginning period in which he would ordinarily earn in commissions less than the amount used by the Bureau ($250 per month). The decision of the Bureau of Employees' Compensation, dated December 3, 1969, and the compensation order, dated February 10, 1970, are set aside, and the case is remanded to redetermine appellant's loss of wage-earning capacity using a position other than that of a real estate salesman. In the Matter of CECELIA M. TIFFANY and GENERAL SERVICES ADMINISTRATION, WASHINGTON, D. C. Emotional disorders-Procedure on appeal to or review by Board, Weight of the medical evidence established that appellant had no organic residual impairment of her June 1962 employment injury causing any disability for work after December 1963, but the evidence did establish that she had an employment-related emotional condition as found by the Bureau. However, the evidence did not support Bureau's further conclusion that such condition was not disabling for work, and the case was remanded for determination of the work limitations imposed by the injury-related emotional condition and for a de novo determination respecting loss of wage-earning capacity. Docket No. 70-129; Submitted on the Record; Issued Before THEODORE M. SCHWARTZ, E. GERALD LAMBOLEY, The issue is whether appellant had any compensable disability as a result of her 1962 employment injury. On Friday, June 15, 1962, appellant, a docket clerk, was seated in her automobile in the employing establishment's parking lot when it was struck by a tractor-trailer which had rolled away from a loading dock. She was dazed by the impact but was not unconscious. Within 30 minutes of the accident she was seen by Dr. Maurice Casey, at the employing establishment's medical center. She complained of pain in the chest, neck, shoulders, and arms. The diagnoses were a mild chest contusion and an anxiety reaction. The next day appellant went to Dr. Lester S. Blumenthal, her personal physician, complaining of tenderness and limitation of motion of the chest and rib area with pain radiating to the back. X-rays of the chest and thoracic spine did not disclose any abnormality except moderate hypertrophic changes of the thoracic vertebral margins. On June 18, 1962, appellant complained of considerable difficulty with her coordination and equilibrium and of neck stiffness. Cervical X-rays were negative. The diagnoses were cervical strain and post traumatic soft tissue injuries to the dorsal spine and chest. Medications, injections, physical therapy, and a cervical collar were prescribed. Dr. Blumenthal continued to treat appellant for shoulder, head and neck pain. On November 20, 1963, appellant filed an application for disability retirement under the Civil Service Retirement Act.1 The application was accompanied by a statement by her immediate superior that she had "a complete mental and physical breakdown on Tuesday evening, November 9, 1963"; the record does not contain any details of this event. Dr. Blumenthal, who examined appel 15 U.S.C. §8331. lant in connection with the retirement application, expressed the opinion that she was not fit for duty because of chronic phlebitis of the legs, chronic vascular headaches, and progressive fatigue following her June 1962 employment accident causing exhaustion, shortness of breath, and chest pain. He stated that she had persistent swelling of the ankles with thickened veins due to phlebitis in both legs since 1956 for which constant anticoagulant therapy was required. In recent months, she also complained of chest pressure with shortness of breath brought on by fatigue. An electrocardiogram and laboratory studies were normal. The doctor stated that he frequently had treated appellant for recurrent migraine headaches since 1954, but the present symptoms involving the posterior occipital area and left ear, with severe weakness, fatigue, and dizzy spells were the result of the June 1962 automobile accident. The medical history shows that in January 1961 appellant was involved in a non-employment connected automobile accident and sustained injuries to the back of her neck and head for which she was treated by Dr. Blumenthal. Appellant's application for disability retirement was approved effective December 28, 1963. In a December 8, 1965 report to the Civil Service Commission, Dr. Blumenthal stated that she was still incapacitated for gainful employment because of phlebitis, weakness of the legs, a circulatory disorder of the head, and recently developed intestinal bleeding. In 1964, appellant brought suit against the United States in a Federal District Court claiming damages on account of the June 15, 1962 employment injury. Proceedings on the suit were stayed, pending the outcome of her claim under the Federal Employees' Compensation Act. On July 28, 1967, Dr. Blumenthal reported that he had seen appellant at monthly intervals for phlebitis of the legs, recurrent vascular headaches, dizziness, easy fatigability, recurrent respiratory infections, colitis, and gynecologic difficulties. He stated that an orthopedic consultant treated her for arthritis of the shoulders, arms, and hands, and that on March 10, 1966, she underwent surgery for removal of a non-malignant polyp. Dr. Blumenthal expressed the opinion that the headaches, dizziness, and pain were aggravated by the June 1962 employment accident; he stated that prior to that date these symptoms did not constitute a significant problem. He stated that the "whiplash" injury sustained in the January 1961 accident could have caused a strain on the cervical tissues and lead to difficulties which may take months or years to show up, but that the marked flare-up after the June 1962 accident |