REIMBURSABLE SERVICE (see MEDICAL EXPENSES)
The Board found that the Office properly refused to pay for chiropractic treat-
ment for appellant's right wrist condition. The treatments rendered by the chiro-
practor did not consist of manual manipulation of the spine, and were therefore not
payable under the Act. As a general rule, chiropractic services are not payable
when they do not consist of manual manipulation of the spine to correct a subluxa-
tion as demonstrated by x-ray to exist. These treatments also did not fall within the
exceptions to the general rule, as they were not rendered upon the direction of an
authorized physician, and they were not authorized by the Office or the employing
establishment. David Deloatch, 41 ECAB 212 (1989).
The Board has created exceptions to the general rule that services rendered by a
chiropractor are not payable when they do not consist of manual manipulation of
the spine to correct a subluxation as demonstrated by x-ray to exist. These excep-
tions are for physical therapy rendered by a chiropractor upon the direction of an
authorized physician and for treatment by a chiropractor authorized pursuant to a
Form CA-16. Edward Schoening, 41 ECAB 977 (1990).
Appellant sustained an injury on December 13, 1983. His supervisor completed
the reverse of the claim form on February 21, 1984 and noted that appellant did not
stop work and first sought treatment on January 9, 1984 by his chiropractor. The
Board found that the evidence of record did not support appellant's contention that
the employing establishment supervisor issued him a CA-16 form with the intent of
authorizing treatment by appellant's chiropractor. The statements from appellant
and his supervisor were in agreement that appellant did not have a Form CA-16
when he first saw his chiropractor. The supervisor noted that appellant did not re-
quest medical care at the time of injury and appellant stated that he did not receive
a CA-16 form from the employing establishment until "a number of weeks" follow-
ing his injury. The Board held that, in the absence of an emergency, a Form CA-16
does not create a contractual obligation where it is issued after the treatment for
which payment is sought has already been rendered. Edward Schoening, 41 ECAB
977 (1990).
X-RAYS, TIMELINESS
Appellant's chiropractor took x-rays 31 days after the date of the alleged injury.
He diagnosed subluxations and offered a well rationalized opinion relating her con-
dition to factors of her federal employment. The Office held that the opinion of ap-
pellant's chiropractor was of little probative value finding that x-rays were not
taken within a reasonable time following the injury, citing Mary J. Briggs, 37 ECAB
578 (1986). The Board found that appellant had submitted evidence supporting the
essential elements of her claim, including evidence of causal relationship, and re-
manded the case for further development of the evidence and a de novo decision. To
the extent that the Board's decision was inconsistent with the precedent in Briggs,
that diagnostic tests not performed within a short time following an employment
injury are per se entitled to little probative value, Briggs was overruled. Linda L.
Mendenhall, 41 ECAB 532 (1990).
The Board found that the Office did not properly adjudicate all aspects of appel-
lant's occupational disease claim. In addition to alleging that her degenerative joint
disease of the hands was employment-related, appellant also alleged that she sus-
tained an employment-related emotional condition and submitted several reports of
a psychiatrist in support of this allegation. An Office medical adviser reviewed these
reports and found them to be well reasoned and concurred with the psychiatrist's
findings. An Office referral psychiatrist found appellant had an emotional condition
which was, in part, attributable to her employment. The record indicated that the
Office had not accepted appellant's emotional condition as employment related or
taken any further action on this aspect of the claim. It was not clear from the
record why the Office failed to consider this condition and the evidence submitted in
support thereof in its adjudication of appellant's claim. Rosie Esquivias, 41 ECAB
243 (1989).
The Office vacated its decision denying appellant's claim and accepted that appel-
lant sustained a contusion of the right knee. However, the Board found that the
Office, aside from authorizing continuation of pay, did not address the specific
period of disability, lost wages, whether there were residuals of the employment
injury, or whether appellant returned to work following the injury. The Office did
not produce any evidence that disability had ceased. The case was remanded for fur-
ther action of the unadjudicated issues mentioned by the Board. Melissie Powers, 41
ECAB 541 (1990).
The FECA provides that the Office shall determine and make findings of fact in
making an award for or against payment of compensation after considering the
claim presented by the employee and after completing such investigation as the
Office considers necessary with respect to the claim. Since the Board's jurisdiction
of a case is limited to reviewing that evidence which was before the Office at the
time of its final decision, it is necessary that the Office review all evidence submit-
ted by a claimant and received by the Office prior to issuance of its final decision.
As the decisions of the Board are final as to the subject matter appealed, it is cru-
cial that all evidence relevant to that subject matter which was properly submitted
to the Office prior to the time of issuance of its final decision be addressed by the
Office. The case was remanded to the Office to consider a medical report submitted
by appellant and received prior to the issuance of its compensation order denying
modification of his claim. William A. Couch, 41 ECAB 548 (1990).
DAMAGE TO PERSONAL PROPERTY
To have a compensable claim under the FECA, a claimant, at the time compensa-
tion benefits are sought, must have an "injury" arising from his or her employment,
which is disabling, i.e., resulting in a loss of wage-earning capacity, or which, at a
minimum, requires medical treatment. Section 8101(5) of the Act defines injury to
include damage to or destruction of prosthetic devices which shall be replaced or
repaired "except that eyeglasses and hearing aids would not be replaced, repaired or
otherwise compensated for, unless the damage or destruction is incident to a person-
al injury requiring medical services." The Board has interpreted the foregoing statu-
tory section as requiring that the employee must actually sustain a physical injury
necessitating some form of medical treatment before the Office is obligated to pay
for the replacement or repair of eyeglasses. Appellant has not submitted any medi-
Ical evidence which establishes that, at the time of the December 2, 1987 employ-
ment incident, he sustained personal injury requiring medical services and for
which the replacement of his eyeglasses was incident thereto. An employment inci-
dent which only causes damage to personal property and does not result in physical
injury is not covered by the Act. David H. Dulebohn, 41 ECAB 428 (1990).
Although appellant initially filed a claim for his cardiac condition, he subsequent-
ly expanded his claim to include an emotional condition. The Board noted that both
appellant's attending physician and an Office medical adviser concluded that appel-
lant had an emotional condition. The letters and statements from appellant in am-
plification and expansion of his claim were as much a part of the claim as the claim
form itself. The Board found that the new evidence submitted by appellant in his
reconsideration request concerning his emotional condition was sufficient to consti-
tute a claim for compensation regardless of whether or not a separate claim form
should have been submitted relating to the emotional condition. Technical require-
ments of pleading are inconsistent with the remedial purpose of the Act. Wilfred M.
Hamilton, 41 ECAB 524 (1990).
Appellant objected to the fact that he did not receive interest on back compensa-
tion payments due him. There is no provision in the Federal Employees' Compensa-
tion Act for payment of interest on awards of compensation. The Act contains no
provision which either in specific terms or by way of implication would authorize
the payment of interest when awards of compensation are made retroactively. Nei-
ther the Office nor the Board has authority to enlarge the terms of the Act as speci-
fied in the statute. Robert Atchison, 41 ECAB 83 (1989).
RATE OF PAY
Section 8105 of the FECA provides that compensation for total disability is paid at
the rate of two-thirds of the employee's monthly pay. Section 8101(4) of the Act de-
fines "monthly pay" as the monthly pay at the time of injury, or the monthly pay
at the time disability begins, or the monthly pay at the time compensable disability
recurs, if the recurrence begins more than six months after the injured employee
resumes regular full-time employment with the United States, whichever is great-
est. Douglas E. Billings, 41 ECAB 880 (1990).
The Office paid appellant compensation for temporary total disability finding that
his disability constituted a recurrence due to his 1979 injury. Appellant contended
that his rate of pay should have been based on his monthly pay at the time of a new
employment injury of 1986. The Board found that the medical evidence of record
was insufficient to allow an informed decision on whether appellant's disability be-
ginning October 16, 1986 was causally related to his 1979 or 1986 employment inju-
ries. The case was remanded to the Office for further development of the medical
evidence. Douglas E. Billings, 41 ECAB 880 (1990).
The Office has determined that premium pay received under the provisions of 5
U.S.C. § 5545(c)(2) for administratively uncontrollable overtime work is to be includ-
ed in pay rate calculations. Ralph E. Stewart, 41 ECAB 996 (1990).
The record established that in addition to his date of injury base pay, appellant
earned premium pay for administrative uncontrollable overtime. The Office, in cal-
culating appellant's pay rate for a schedule award, failed to include the premium
pay in the pay rate calculation. The case was remanded to the Office to recalculate
appellant's pay rate for compensation purposes. Ralph E. Stewart, 41 ECAB 996
(1990).
CONCURRENT PAYMENTS (SEE SCHEDULE AWARDS, CONCURRENT PAY-
MENTS)
Appellant established that he sustained an injury to his groin in the performance
of duty; however, he did not establish that the injury caused his disability for em-
ployment thereby entitling him to continuation of pay. The evidence of record
showed that during the period appellant was found totally disabled for work he par-
ticipated in a bowling tournament. Both appellant's attending physician and an
Office referral physician were of the opinion that if appellant were able to bowl he
was not, in fact, disabled for work. The Office properly denied continuation of pay.
Edward H. Horton, 41 ECAB 301 (1989).
The Board held that the Office properly determined that appellant was not enti-
tled to continuation of pay following her recurrence of disability and properly re-
scinded its prior authorization of continuation of pay pursuant to Section 8118 of
the Act. Section 10.201 of the implementing regulations provides that if an employ-
ee returns to work without using all 45 days of continuation of pay and then suffers
a recurrence of disability, she may elect to use the remaining days of continuation
of pay if the recurrence occurs within 90 days after the first return to duty. In the
present case the recurrence of disability occurred more than 90 days after appellant
returned to work following her original injury. Therefore, she was not entitled to
continuation of pay. Roseanna Brennan, 41 ECAB 92 (1989).
The Office's regulations provide, in part, that an employee is not entitled to con-
tinuation of pay unless the employee's disability begins within 90 days of the date of
injury. The 45 day continuation of pay period starts with the first day or shift fol-
lowing the date or shift of injury during which the claimant is disabled, provided
the disability begins within 90 days of the occurrence of the injury. The employing
agency may terminate or controvert the employee's pay if the employee first stops
work as a result of the injury more than 90 days following the injury. Terry L. Wil-
lard, 41 ECAB 796 (1990).
Appellant, a cemetery caretaker, alleged injury to his right fifth finger on April
28, 1989; however, he did not stop work and his disability did not begin until August
16, 1989 when he underwent surgery to correct a right trigger finger condition. As
appellant's disability commenced more than 90 days following the date of injury the
Office properly denied his claim for continuation of pay. Terry L. Willard, 41 ECAB
796 (1990).
The Office's regulations, 20 C.F.R. § 10.201(a), provide in part that an employee is
not entitled to continuation of pay unless the employee files a claim for a period of
wage loss, as required by 5 U.S.C. § 8118(a), within 30 days of the injury on a form
approved by the Secretary. The Board has held that where the weight of evidence
indicates that an employee did file a written claim within the 30 day period but the
claim was subsequently lost, the employee is not barred from receiving continuation
of pay. Bobby W. Anderson, 41 ECAB 833 (1990).
The Board found that appellant was improperly denied continuation of pay on the
ground that he failed to submit written notice within 30 days of injury. The weight
of evidence indicated that appellant timely submitted a written notice within 30
days of injury. Signed statements from his supervisors established that appellant
filed a written notice which was subsequently lost. The case was returned to the
Office to determine appellant's entitlement to continuation of pay. Bobby W. Ander-
son, 41 ECAB 833 (1990).
ALLOWANCE FOR TERMINATION OF EMPLOYEE STATUS
Section 8133(f) of the FECA, allows for payment of a sum of $200.00 to the person-
al representative of a deceased employee for reimbursement of the costs of termina-
tion of the decedent's status as an employee of the United States. This amount is
paid notwithstanding any funeral or burial expenses paid under Section 8134. Enti-
tlement to the $200.00 sum is not conferred on appellant merely because subsection
(f) of this section contains no language limiting entitlement to those situations
where death results from an injury sustained in the performance of duty. The re-
quirement in subsection (a) that the death result from an injury sustained in the
performance of duty is controlling on subsection (f) and all other relevant subsec-
tions of section 8133 of the Act. To hold otherwise would allow payment to the rep-
resentative of any deceased individual who was an employee of the United States at
the time of death. This would be inconsistent with the purpose of the Act which is
intended to provide compensation for disability and death resulting from an injury
sustained in the performance of duty. Timothy Forsyth (James Forsyth), 41 ECAB
467 (1990).
An award of compensation may not be based on surmise, conjecture or specula-
tion. The fact that the employee suffered his fatal heart attack while at work is in
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