ment and by letter of June 4, 1974, the Office informed the attorney that it had completed its study of the case and found the pay rate used for compensation purposes was properly determined. "Therefore the decision of *** January 28, 1974 has been affirmed."

3

The Board finds the Office properly determined that the decedent's rate of pay for compensation purposes includes only his earnings as a civilian employee of the employing establishment. The sums he received for his Reserve activities are not to be included. This case in all essential respects is similar to Adelbert E. Broderick, where the Board held that the pay which an employee received for his military Reserve activities was not to be included in computing his compensation. In that case, as in the present case, the employee was not required to be a member of the Reserves in order to hold the job he was performing at the time of his injury. It is of no consequence that, as pointed out by appellant, the Broderick case involved compensation for loss of wageearning capacity, while this case involves compensation for death benefits. In both types of situations the provisions of section 8114 are to be applied in the same manner in determining the pay rate for compensation purposes.

4

Appellant relies upon the Board's decision in Irwin E. Goldman and contends that the decedent's pay rate is to be determined under subsection (3) of section 8114(d) rather than under subsection (1) or subsection (2). Her attorney contends that the decedent's duties as a professor of economics and his duties as a Reserve Army Colonel were "similar" or "related," and further argues that it does not require proof "that a teacher in the Industrial College *** who has the task of providing instruction to career commissioned officers can do his job better if he himself is an active commissioned officer." These statements are without

one which would have afforded employment for substantially a whole year, the average annual earnings are a sum equal to the average annual earnings of an employee of the same class working substantially the whole immediately preceding year in the same or similar employment by the United States in the same or neighboring place, as determined under paragraph (1) of this subsection.

(3) If either of the foregoing methods of determining the average annual earnings cannot be applied reasonably and fairly, the average annual earnings are a sum that reasonably represents the annual earnings capacity of the injured employee in the employment in which he was working at the time of the injury having regard to the previous earnings of the employee in Federal employment, and of other employees of the United States in the same or most similar class working the same or most similar employment in the same or neighboring location, other previous employment of the employee, or other relevant factors. However, the average annual earnings may not be less than 150 times the average daily wage the employee earned in the employment during the days employed within 1 year immediately preceding his injury."

24 ECAB 62.

45 U.S.C. 8115. 5 U.S.C. 8102.

23 ECAB 6.

evidentiary support in the case record and the Board will not engage in a presumption that a civilian professor of economics in the Industrial College can do a better job merely because he is a commissioned officer in the military Reserves, nor that the duties of a Reserve Army Colonel were similar or related to the same person's duties as a professor of economics.

The Board finds that the Goldman case is not applicable to the present situation because the essential circumstances in each case were different. In the Goldman case the employee worked full-time in private employment and part-time in Government employment. The Board concluded that subsection (3) of section 8114(d) was to be applied there because the employee's earnings in his part-time job with the Federal Government were not "fairly and reasonably" representative of his average annual earnings. Since subsection (1) of section 8114(d) could not be "applied reasonably and fairly" the computation of the employee's pay rate had to be made pursuant to subsection (3). A petition for reconsideration was filed in the Goldman case and the Board pointed out that its decision "does not change the principles previously established for determining loss of wage-earning capacity in the usual situation." 7

Average annual earnings are to be determined under subsection (3) of section 8114(d) only where neither subsection (1) or subsection (2) can be applied. In the present case the decedent's situation clearly falls within subsection (1). His average annual earnings can be determined "reasonably and fairly." Therefore, there is no basis for determining his earnings under subsection (3). Furthermore, even if his earnings were to be determined under subsection (3), the evidence does not support a conclusion that decedent's activities in the Reserves involved "similar employment" to his duties as a teacher of economics, "the employment in which he received his fatal injury." 9 Thus, even if subsection (3) were to be used, the decedent's earnings as a military Reserve officer would not be included for compensation purposes.

The letter decision of the Office of Workers' Compensation Programs, formerly the Office of Federal Employees' Compensation, dated June 4, 1974, affirming the compensation order of January 28, 1974, is hereby affirmed.

723 ECAB 46.

Leo Clouser, 5 ECAB 366.

Irwin E. Goldman, supra, at 10 (emphasis is in the decision).

In the Matter of OXLEY T. KINNAIRD and NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, Cape Canaveral,

Fla.

Review under section 8128, new evidence-Office, medical experts,
reference to

Office's denial of appellant's application for review on the ground
that such application was prima facie insufficient to warrant review
was reversed where the new evidence submitted by appellant in
support of his application was a report from his treating orthopedic
surgeon who had previously been selected by the Office to treat
appellant for the residuals of his employment injury and to make
evaluations of the residuals thereof. The Office had not furnished the
surgeon with a description of the position selected for appellant or
with information respecting its physical requirements; therefore the
doctor's report could not simply be ignored as irrelevant or immater-
ial to the issue involved and it was of sufficient importance to require
the Office to take further action.

Docket No. 75-16; Submitted on the Record;
Issued September 30, 1974

Before FLOYD G. ANSLEY, E. GERALD LAMBOLEY, FRED E. STRINE

The issue is whether a report from the medical specialist attending appellant, relating to his work limitations for certain types of employment, was of sufficient relevancy so as to require the Office of Workers' Compensation Programs to take further action with respect to its determination establishing appellant's employment-related loss of wage-earning capacity.

Appellant, a mechanical installer and repairer, sustained a injury on May 27, 1961 to his left leg. The fibula was fractured and the ankle was crushed. Surgery was performed on January 2, 1962 and on October 29, 1962. Appellant had recurrent periods of temporary disability for which he received compensation.

Commencing August 1966, the Office of Workers' Compensation Programs placed appellant under the care of Dr. Bright McConnell, Jr., a Board-certified orthopedic surgeon. In a report dated August 25, 1966, the doctor reported that appellant's left leg condition had reached maximum improvement. He had numbness and limitation of motion in the left foot and atrophy in the left leg. Dr. McConnell estimated that appellant had a 15 percent disability of the left leg.

Subsequently, appellant developed low back symptoms. In September 1968 he stopped working, and he received compensation

thereafter for temporary total disability. He retired on disability effective May 1, 1970.

In view of appellant's low back difficulties, Dr. McConnell had an electromyogram performed. This revealed changes in the low back compatible with nerve root neuropathy, probably in the S1 area. On the basis of this and other tests, Dr. McConnell reported on February 24, 1969 that appellant had a 10 percent disability of the back which the doctor believed was related to the 1961 injury.

The Office determined that appellant's back impairment, as well as his left leg condition, was a residual of the 1961 injury. It further found that peptic duodenitis, which appellant developed and was believed due to medication prescribed for the other conditions, was employment related.

In response to a request from the Office that the doctor indicate appellant's employment-related work limitations, Dr. McConnell on December 16, 1969 reported that he could do sedentary work which precluded lifting more than 30 pounds, repetitive bending and stooping. The doctor stated that while appellant "could sit and stand without reasonable difficulty," he should not climb or drive a heavy vehicle. Dr. McConnell concluded that appellant had reached maximum medical benefits when the doctor discharged him from treatment on February 24, 1969.

In view of Dr. McConnell's report indicating that appellant was not totally disabled for work, the Office proceeded to determine his employment-related loss of wage-earning capacity. A rehabilitation adviser of the Office stated that, considering appellant's age of 47, his twelfth grade education, his work experience and his work limitations as set forth by Dr. McConnell, he could qualify for the position of stock record clerk, auto parts, Code No. 223.387 in the Department of Labor's Dictionary of Occupational Titles. The adviser stated that the duties of this position were sedentary and involved lifting a maximum of 10 pounds, and also reaching and handling. He stated that such work was available in appellant's work area and paid $75 a week. A medical adviser of the Office commented that appellant could physically perform the duties of the selected position.

On March 11, 1970 the Office informed appellant that it had determined that he was no longer disabled, that he could qualify for the position of stock record clerk, auto parts, and that his compensation would be reduced accordingly, effective March 26, 1970. On the basis of these findings it found that appellant had a 59 percent employment-related loss of wage-earning capacity.

Appellant subsequently requested reconsideration of the Office's decision. On March 3, 1972 the deputy medical director of the

Office reviewed the medical evidence in the case record. He commented that appellant could work in a sedentary capacity which involved maximum lifting of 10 pounds and precluded bending or stooping except on an occasional basis, and which strictly limited prolonged standing or walking. The doctor stated that the job should permit changing position periodically as necessary. He added that appellant could not climb or drive any vehicle on a full time basis. The deputy medical director also set forth limitations imposed by the employment-related gastrointestinal condition.

The chief of the Office's Division of Rehabilitation stated that in his opinion appellant could perform the duties of the position of stock record clerk, auto parts. He pointed out that the Dictionary of Occupational Titles did not indicate that this job required bending or stooping; it required "only a certain amount" of walking and standing, "but not to any prolonged degree."

On November 3, 1972, the Office informed appellant that it had studied the case record and found that its decision of March 11, 1970 establishing his loss of wage-earning capacity was correct. It stated that the position of stock record clerk, auto parts, fairly and reasonably represented his wage-earning capacity.

Appellant appealed to the Board from the Office's decision of November 3, 1972. However, he subsequently withdrew his appeal so that he could submit to the Office a report he had received from Dr. McConnell.

After withdrawing his appeal, appellant requested that the Office reconsider its decision. In support of his application, he submitted the report from Dr. McConnell, which was dated April 13, 1973. In this report the doctor pointed out that he had previously indicated that appellant had a 10 percent disability of the back and a 15 percent disability of the left leg. The doctor further commented as follows:

"As previously stated, I do not feel this patient can be employed in any type of work actively except sedentary in nature. He states he has to keep his foot elevated because of pain in his leg at times. It is noted that he was told he could be a parts clerk or a stock clerk and as this entails climbing ladders and carrying objects, I do not feel he would be qualified for this type of work."

Other documents submitted by Dr. McConnell indicated that on November 14, 1972 he examined appellant and prescribed a leg brace, and that on April 12, 1973 he treated appellant.

On July 23, 1973, the Office informed appellant that Dr. Mc