G.B. and Department of the Treasury, Internal Revenue Service, Holtsville, NY (Board decision, September 25, 2009)

ECAB final decision on the appeal, with further OWCP action required. The Board set aside OWCP’s August 29, 2008 denial and remanded for further development of G.B.’s total disability and medical appointment wage-loss claims. Entitlement for the claimed periods remained unresolved on remand. Under 20 C.F.R. § 501.6(d), this Board decision becomes final as to this appeal 30 days after issuance unless the Board specifies another period. A party may petition the Board for reconsideration within 30 days unless this decision specifies another period, under 20 C.F.R. § 501.7(a). FECA compensation decisions are generally not subject to court review under 5 U.S.C. § 8128(b).

Plain-English summary

G.B., an IRS tax examining technician, sought wage-loss compensation after an accepted fall at work. His claims covered periods of asserted total disability and time missed for physical therapy and medical appointments. The Board found that OWCP’s medical opinion did not adequately address the claimed disability periods or explain when the work-related condition ceased, and it was not entitled to special weight as a conflict-resolving opinion. It directed OWCP to obtain a qualified medical opinion and issue a new decision on the total disability periods. The Board also held that OWCP could not deny appointment-related wage loss merely because G.B. might have scheduled treatment outside work hours; OWCP must determine which appointments and reasonable travel time qualify. The Board set aside the denial and remanded both issues without deciding the amount payable.

Decision snapshot

• Authority: Medical services under 5 U.S.C. § 8103(a); medical conflicts under 5 U.S.C. § 8123(a).
• Outcome: August 29, 2008 denial set aside and remanded for further action.
• Key point: OWCP needed a reasoned medical opinion on disability and a day-by-day assessment of claimed time for authorized care.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
G.B., Appellant
)
)
and ) Docket No. 08-2470
) Issued: September 25, 2009
DEPARTMENT OF THE TREASURY,
)
INTERNAL REVENUE SERVICE,
)
Holtsville, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
ALEC J. KOROMILAS, Chief Judge
DAVID S. GERSON, Judge
JAMES A. HAYNES, Alternate Judge

JURISDICTION

On September 15, 2008 appellant filed a timely appeal of the August 29, 2008 decision of the Office of Workers’ Compensation Programs, which affirmed the denial of wage-loss compensation. Pursuant to 20 C.F.R. §§ 501.2(c) and 501.3(d), the Board has jurisdiction over the merits of this claim.1

ISSUES

The issues are: (1) whether appellant is entitled to wage-loss compensation for temporary total disability during the periods October 6, 2005 through September 6, 2006, September 10 to 30, 2006 and October 7 through November 5, 2006; and (2) whether he is entitled to compensation for intermittent lost wages during the periods June 24 through August 18, 2007, November 25 through December 6, 2007 and December 9 to 22, 2007.

1
The record on appeal contains evidence that was received after the Office issued its August 29, 2008 decision.
The Board may not consider evidence that was not in the case record when the Office rendered its final decision. 20 C.F.R. § 501.2 (2008). FACTUAL HISTORY

This case has previously been before the Board.2 Appellant, a 55-year-old tax examining technician, has an accepted claim for neck sprain, cervicalgia, cervicobrachial syndrome, lumbago, lumbar sprain and right knee sprain. His injuries occurred on August 18, 2005 as a result of a fall at work. Appellant received continuation of pay from August 21 through October 5, 2005. He worked sporadically between October 2005 and March 2006. On November 6, 2006 appellant returned to work in a part-time limited-duty capacity as a tax examiner.3 He worked four hours a day and the Office paid him wage-loss compensation for four hours each day. Effective February 26, 2007, appellant increased his workday to six hours.4 Thereafter, the Office paid him two hours of wage-loss compensation per day.

Appellant filed various claims for compensation (Form CA-7) covering the period October 6, 2005 through September 6, 2006, September 10 through 30, 2006 and October 7 through November 5, 2006. During this timeframe, he was under the care of Dr. Colvin. Appellant was also being treated by a chiropractor and he regularly attended physical therapy, which Dr. Colvin had prescribed for his neck, low back and right knee.

Appellant first saw Dr. Colvin on October 7, 2005. In an October 14, 2005 report, Dr. Colvin indicated that he was totally disabled from August 19 through October 12, 2005. He further indicated that appellant was able to resume regular work effective October 12, 2005.

On January 6, 2006 Dr. Colvin advised that appellant was able to return to work on January 9, 2006 with restrictions that included no sitting for more than two hours at a time, no heavy lifting and no bending. He also advised that appellant continue with physical therapy three times per week for the next four to six weeks.

Dr. Colvin examined appellant on February 23, 2006, at which time he diagnosed cervical disc disease, cervicalgia, right shoulder and right elbow pain, low back pain, lumbar myofascitis, lumbar serevent dysfunction and sacroiliac joint disorder. He recommended continued physical therapy and noted that appellant’s prognosis was fair. Dr. Colvin did not otherwise address the issue of disability.

2
Docket No. 08-401 (issued January 8, 2009).
3
Appellant’s part-time limited-duty assignment was based on restrictions imposed by Dr. P. Leo Varriale, a Board-certified orthopedic surgeon and Office referral physician, who examined him on August 21, 2006. 4 The increased work schedule was brought about by the November 14, 2006 report of Dr. David T. Zitner, a Board-certified orthopedic surgeon and impartial medical examiner, diagnosed cervical and lumbar strains and right knee osteoarthritis. Dr. Zitner found that appellant was capable of performing sedentary work, six hours a day. Appellant’s limitations were primarily due to his right knee osteoarthritis, which he indicated was a preexisting condition and only minimally aggravated by the August 18, 2005 employment injury. Dr. Zitner also noted that his significant obesity contributed to his disability. His opinion was solicited because the Office declared a conflict in medical opinion between Dr. Varriale and appellant’s then-treating physician, Dr. George L. Colvin. Both physicians imposed certain physical restrictions; however, Dr. Colvin found that appellant was capable of working full-time limited duty whereas Dr. Varriale recommended a four-hour workday.

2
 On March 10, 2006 Dr. Colvin excused appellant from work for the period February 6 through March 10, 2006 because of “recurrent low back pain from the work injury.” He advised that appellant was “ok to resume duties [on] March 13, 2006.”

When Dr. Colvin saw appellant on April 25, 2006, he diagnosed cervicalgia, right elbow pain, low back pain, sciatica, lumbar myofascitis, right knee swelling and right knee pain. He noted that appellant’s prognosis was fair and that he should be “okay to return to work by this coming Monday.” Appellant was advised to continue with his physical therapy.

Dr. Colvin provided additional reports dated June 6 and July 25, 2006. He continued to treat appellant for his neck, low back, right shoulder and right knee. However, Dr. Colvin did not specifically address appellant’s ability to work. In his July 25, 2006 report, he noted that all of appellant’s injuries were compatible with his history of a fall at work. Dr. Colvin was concerned with the lack of progress with respect to appellant’s right knee condition and, therefore, he referred appellant to an orthopedic surgeon for a second opinion.

Dr. Colvin completed an August 2, 2006 work capacity evaluation (Form OWCP-5c) noting that appellant could work full-time limited duty. He also provided an August 22, 2006 examination report.5 However, the latter report did not specifically address appellant’s ability to work.

In October 2006, the Office paid appellant a total of 316 hours of wage-loss compensation. This included eight hours of compensation for both October 6 and 7, 2005 on the basis that appellant was “unable to work until October 12, 2005.” The balance represented four hours of compensation for each day appellant documented attendance at various medical appointments between October 2005 and June 2006. The Office advised appellant to submit additional medical evidence to support his claimed period of temporary total disability.

The Office issued decisions on March 3 and May 31, 2007 denying appellant’s various claims for compensation for temporary total disability through November 5, 2006. Appellant sought further review from the Branch of Hearings and Review.

Appellant filed additional CA-7s covering the period June 24 through August 18, 2007.
He claimed two hours of lost wages each day based on his part-time work schedule. There were also 11 days during that timeframe, where appellant claimed an additional 2 to 6 hours of wage- loss compensation totaling 62 hours. The Office paid appellant two hours per day based on his part-time work schedule and an additional four hours per day for July 24, 26 and 27, 2007 because of documented medical appointments. Appellant was advised to submit medical evidence to substantiate the additional hours claimed.

5
Dr. Colvin does not appear to have examined appellant after August 22, 2006. In early 2007, appellant came under the care of Dr. Mark G. Grossman and Dr. Marc A. Agulnick, both Board-certified orthopedic surgeons. Dr. Grossman treated appellant’s right knee condition and Dr. Agulnick treated his lumbar and cervical spine conditions. In a March 16, 2007 report, Dr. Grossman attributed appellant’s ongoing right knee complaints to his accident at work.

3
 Medical records indicate that appellant attended physical therapy on July 11, 13, 20 and 27, 2007. He also had doctors’ appointments on July 20 and 26 and August 10, 2007.6

On August 23, 2007 the Office issued a loss of wage-earning capacity (LWEC) determination based on the part-time (six hours) limited-duty assignment appellant had been working since February 2007.7 Thereafter, appellant would receive regular periodic payments for his two hours of wage loss each day.

In a decision dated August 28, 2007, an Office hearing representative set aside the March 3 and May 31, 2007 decisions denying compensation for the period October 2005 through November 2006. She remanded the case to the Office for further development. Among other things, the Office was instructed to obtain additional information from the impartial medical examiner, Dr. Zitner, regarding appellant’s claimed disability during the period October 2005 through November 2006.

On November 15, 2007 the Office denied appellant’s claim for additional wage-loss compensation for the period June 24 through August 18, 2007. Appellant requested a review of written record.

In December 2007, appellant filed additional CA-7s claiming intermittent wage loss between November 25 and December 22, 2007. On 14 separate days, he claimed at least four hours of lost wages per day for medical treatment.8 Appellant attended physical therapy on November 27, 28 and 29 and December 4, 5, 6, 12, 13, 14, 18, 19 and 20, 2007. He also had doctor’s appointments on November 28 and 30, 2007. Additionally, appellant obtained a custom knee brace on December 13, 2007.

Physical therapy records for the period November 13 through 23, 2007 indicated that appellant’s therapy sessions began at either 3:00 or 3:30 p.m. and lasted one to two hours, ending at the latest 5:30 p.m.

The employing establishment challenged appellant’s most recent claim for wage-loss compensation noting that he had not been reporting for his 4:30 to 10:30 p.m. work shift on the days he attended physical therapy. It also noted that appellant was claiming four hours per therapy visit when the evidence indicated that his therapy sessions lasted only one to two hours. The employing establishment urged the Office to compensate appellant for only those hours of physical therapy, including his travel time, which overlapped with his 4:30 to 10:30 p.m. tour of duty. According to it, appellant lived 3.5 miles from his therapist’s office, which was a 10- minute ride.

6
Appellant claimed additional compensation for July 3 and 6, August 7 and 14, 2007. However, he did not submit evidence to support his claim for wage loss on those particular days. 7 Appellant subsequently requested a review of the written record, which was denied. The Board affirmed the August 23, 2007 LWEC determination. The Board also affirmed the Branch of Hearings and Review’s October 25, 2007 decision denying appellant’s request for review of the written record. The January 8, 2009 decision is incorporated herein by reference. 8 Appellant claimed a total of six hours on November 28, 2007 and eight hours on December 20, 2007.

4
 In early 2008, the Office asked appellant to provide evidence supporting his claim of four-hour physical therapy appointments. In the absence of such evidence, he was advised that he would be compensated for only one to two hours per physical therapy visit.

On January 9, 2008 appellant provided an itinerary of his physical therapy session earlier that day. His ride to the therapist’s office reportedly took 30 minutes.9 Appellant arrived at 3:20 p.m. and his therapy session began 3:40 p.m. and lasted until 5:30 p.m. He indicated that he left the therapist’s office at 5:50 p.m. and arrived home at 6:25 p.m. From door-to-door appellant’s trip to the therapist that day lasted 3 hours and 35 minutes.10

On January 16, 2008 the Office advised appellant that, based on the documentation received thus far, he was likely only entitled to two hours per physical therapy visit, which it paid. To receive the additional hours claimed, appellant was told he would have to submit further evidence. The Office explained that while it was its policy to grant up to four hours for routine medical appointments, appellant was not guaranteed four hours compensation.

On January 24, 2008 appellant declined to submit any further information and asked that the Office issue a formal decision denying his request for compensation so that he could then exercise his appeal rights. He believed that he had already submitted all the necessary information.

By decision dated March 5, 2008, the Office denied appellant’s claim for additional compensation for the period November 25 through December 22, 2007. Appellant subsequently requested an oral hearing.

Regarding appellant’s claimed period of temporary total disability from October 2005 until November 2006, the Office asked Dr. Zitner to provide a supplemental report, but he declined. As such, it referred him to Dr. Jerrold M. Gorski, a Board-certified orthopedic surgeon, for another impartial medical examination.

In a report dated February 25, 2008, Dr. Gorski diagnosed severe tricompartmental osteoarthritis of the right knee, degenerative arthritis of the neck and lumbar spine and obesity. He noted that these conditions were preexisting and not medically connected to appellant’s work conditions, which in essence was a sedentary job. Dr. Gorski explained that appellant may have had a temporary aggravation, but his current complaints were due entirely to his preexisting condition. He further stated that the aggravation would be expected to have lasted no more than three months. According to Dr. Gorski, appellant had returned to his preinjury status with expected continuing degeneration. On the question of disability, he stated that appellant was totally disabled due to the work-related conditions “from the date of injury -- August 10, 2005 (sic) until perhaps October 6, 2005.”

9
Appellant noted that he had called for a ride at 2:30 p.m. and was picked up at 2:50 p.m.
10
If one includes the additional 20 minutes appellant reportedly waited for his ride to arrive, the entire time is slightly less than 4 hours.

5
 In a decision dated March 25, 2008, the Office denied appellant’s claim for compensation for the period October 6, 2005 through September 6, 2006, September 10 through 30, 2006 and October 7 through November 5, 2006.

Appellant requested an oral hearing. He also requested that the hearing representative issue subpoenas compelling the testimony of several employing establishment and Office personnel. On June 12, 2008 the hearing representative denied appellant’s request for subpoenas. The hearing was held on July 15, 2008 and encompassed the decisions issued on November 15, 2007 and March 5 and 25, 2008.

Posthearing appellant submitted information regarding the hours of operation of the physical therapy facility where he received treatment. On Monday, Wednesday and Friday the facility opened at 8:00 a.m. and closed for the day at 7:00 p.m. On Tuesday and Thursday the facility opened at 10:00 a.m. and closed for the day at 4:00 p.m. Each day the facility closed at noon for lunch and depending on the day it reopened some time between 1:45 and 2:30 p.m.

By decision dated August 29, 2008, the hearing representative affirmed all three Office decisions. As to the issue of appellant’s claimed temporary total disability from October 2005 through November 2006, the hearing representative accorded determinative weight to Dr. Gorski’s February 25, 2008 opinion. With respect to intermittent wage loss during the period June 24 through August 18, 2007, November 25 through December 6, 2007 and December 9 to 22, 2007, she found in some instances that the record did not include evidence to support the period claimed. The remaining hours were denied because appellant could have attended his various medical appointments on his own time prior to reporting for duty at 4:30 p.m.

LEGAL PRECEDENT -- ISSUE 1

A claimant has the burden of establishing the essential elements of his claim, including that the medical condition for which compensation is claimed is causally related to the claimed employment injury.11 For wage-loss benefits, the claimant must submit medical evidence showing that the condition claimed is disabling.12 The evidence submitted must be reliable, probative and substantial.13

ANALYSIS -- ISSUE 1

As a preliminary matter, the Board finds that the hearing representative did not abuse his discretion in denying appellant’s request to subpoena certain Office representatives and employing establishment personnel.14 An Office employee acting in his or her official capacity

11
20 C.F.R. § 10.115(e); see Tammy L. Medley, 55 ECAB 182, 184 (2003).
12
Id. at § 10.115(f).
13
Id. at § 10.115.
14
Abuse of discretion is generally shown through proof of manifest error, a clearly unreasonable exercise of judgment or actions taken which are clearly contrary to logic and probable deductions from established facts. Lottie M. Williams, 56 ECAB 302, 309 (2005).

6 as decision-maker or policy administrator may not be compelled to testify before the Branch of Hearings and Review.15 With respect to compelling the testimony of several employing establishment personnel, appellant must explain in writing why the testimony is directly relevant to the issues at hand and why “a subpoena is the best method or opportunity to obtain such evidence.”16 The written request must also explain why there are no other means by which the testimony could have been obtained.17 The hearing representative properly exercised his discretion in finding that appellant’s May 9, 2007 subpoena request did not satisfy the above- noted criteria.

The hearing representative denied compensation for the claimed period based on Dr. Gorski’s February 25, 2008 opinion, which had been accorded “special weight” because of his purported status as an impartial medical examiner.18 The hearing representative stated that “Dr. Gorski determined that injury-related disability ceased three months following the date of injury, i.e., October 18, 2005.”

Dr. Gorski was selected as a replacement for Dr. Zitner, who had previously been designated an impartial medical examiner to resolve a conflict between Drs. Colvin and Varriale regarding appellant’s ability to perform limited-duty work. Dr. Zitner declined the Office’s request to provide a supplemental report regarding appellant’s claimed disability between October 2005 and November 2006. Therefore, the Office referred appellant to Dr. Gorski. In his February 25, 2008 report, Dr. Gorski stated that appellant’s employment-related aggravation was “temporary ... and would be expected to have lasted no more than three months.” He further stated that appellant was “totally disabled due to the work-related conditions from the date of injury -- August 10, 2005 (sic) until perhaps October 6, 2005.” Dr. Gorski opined that any “subsequent disability ... would be due to [appellant’s] underlying and preexisting condition.”

Although the case was referred for an impartial medical examination pursuant to a previous hearing representative’s directive, there was no conflict in medical opinion regarding appellant’s claimed disability between October 2005 and November 2006. In 2005 and 2006, Dr. Colvin, appellant’s then-treating physician, provided some pertinent information regarding appellant’s disability status, albeit piecemeal. When Dr. Varriale, the Office referral physician, examined appellant in August 2006, he did not address his claimed total disability dating back to October 2005. Dr. Zitner similarly did not address this point in his November 14, 2006 report. Because there was no existing conflict regarding appellant’s claimed disability from

15
20 C.F.R. § 10.619(b).
16
Id. at § 10.619(a)(2).
17
Id.
18
The Federal Employees’ Compensation Act provides that if there is disagreement between the physician making the examination for the Office and the employee’s physician, the Office shall appoint a third physician who shall make an examination. 5 U.S.C. § 8123(a); Shirley L. Steib, 46 ECAB 309, 317 (1994). Where the Office has referred appellant to an impartial medical examiner to resolve a conflict in the medical evidence, the opinion of such a specialist, if sufficiently well rationalized and based upon a proper factual background, must be given special weight. Gary R. Sieber, 46 ECAB 215, 225 (1994).

7
October 2005 through November 2006, Dr. Gorski’s February 25, 2008 opinion is not entitled to “special weight.”

As previously noted, the Office solicited Dr. Gorski’s opinion primarily to address appellant’s claimed disability during the period October 2005 through November 2006. However, Dr. Gorski’s February 25, 2008 report is not entirely responsive to the question posed by the Office. He did not specifically address appellant’s ability to work during the claimed period but instead attributed any disability beyond October 6, 2005 to a preexisting condition.19 Dr. Gorski indicated that the aggravation brought about by the August 2005 employment injury was temporary and would have been expected to last no more than three months. Consequently, the claim was denied based on the issue of causation.20

Dr. Gorski’s opinion regarding the cause of appellant’s post-October 6, 2005 disability is not fully rationalized.21 He stated that the aggravation was “temporary ... and would be expected to have lasted no more than three months.” According to Dr. Gorski, appellant was totally disabled due to the work-related conditions from “August 10 ... until perhaps October 6, 2005.” However, any disability afterwards would be due to appellant’s “underlying and preexisting condition.” If appellant’s August 18, 2005 employment injury represented at most a three-month temporary aggravation of his preexisting right knee condition, then Dr. Gorski should have explained why the aggravation reportedly ceased within less than two-months’ time. Absent such an explanation, the October 6, 2005 date identified by Dr. Gorski seems arbitrary.22 It is also difficult to ascertain how Dr. Gorski found that appellant was currently at his preinjury status, particularly in light of the fact that he has ongoing right knee complaints which he did not have prior to the August 18, 2005 employment injury. He also cited appellant’s “sedentary job” as a basis for his opinion on causal relationship. It is unclear how appellant’s “sedentary job” duties factor into an opinion on causal relationship in a traumatic injury claim. Given the above-

19
Dr. Gorski did not clearly indicate whether he believed appellant was totally disabled from October 2005 through November 2006 regardless of the cause of the claimed disability. 20 Prior to Dr. Gorski’s February 25, 2008 opinion, there was no real dispute about causation. Dr. Varriale had previously stated that the “knee aggravation was permanent and mildly related to the accident.” When Dr. Zitner examined appellant he explained that the “aggravation of the [knee] injury is temporary, but the condition of osteoarthritis is permanent.” However, he did not state that the “temporary” aggravation had ceased at that time of his November 14, 2006 report. Dr. Grossman, who began treating appellant in early 2007, was of the opinion that appellant’s continuing right knee complaints related back to his August 18, 2005 employment injury. The Office has paid wage-loss compensation for partial disability dating back to November 2006 premised on the belief that appellant has an ongoing employment-related disability. Thus, it appears that Dr. Gorski has created a conflict in medical opinion on the issue of causation. 21 Causal relationship is a medical question that generally requires rationalized medical opinion evidence to resolve the issue. See Robert G. Morris, 48 ECAB 238 (1996). A physician’s opinion on whether there is a causal relationship between the diagnosed condition and the implicated employment factors must be based on a complete factual and medical background. Victor J. Woodhams, 41 ECAB 345, 352 (1989). Additionally, the physician’s opinion must be expressed in terms of a reasonable degree of medical certainty and must be supported by medical rationale, explaining the nature of the relationship between the diagnosed condition and appellant’s specific employment factors. Id. 22 Prior to Dr. Gorski’s opinion, the October 6, 2005 date’s only significance was that it represented the first day appellant experienced wage loss following the expiration of continuation of pay.

8 noted deficiencies, the Board finds that Dr. Gorski’s February 25, 2008 report does not constitute a rationalized medical opinion.

Proceedings under the Act are not adversarial in nature and the Office is not a disinterested arbiter. While appellant has the burden to establish entitlement to compensation, the Office shares responsibility in the development of the evidence to see that justice is done.23 Once it undertakes development of the record, it must do a complete job in procuring medical evidence that will resolve the relevant issues in the case.24

The previous hearing representative believed that further development was necessary to properly adjudicate appellant’s claim for temporary total disability from October 2005 through November 2006. Dr. Gorski’s opinion was procured in an effort to satisfy the hearing representative’s mandate. However, his February 25, 2008 report is deficient as noted above. Accordingly, the Office did not properly discharge its responsibilities in developing the record.25 The case is remanded to the Office so that it may refer the claim file to a qualified medical specialist for an opinion regarding the extent of any employment-related disability during the period October 6, 2005 through September 6, 2006, September 10 to 30, 2006 and October 7 through November 5, 2006. After the Office has developed the case record to the extent it deems necessary, a de novo decision shall by issued.

LEGAL PRECEDENT -- ISSUE 2

An injured employee is entitled to compensation for lost wages incurred while obtaining authorized medical services.26 This includes the actual time spent obtaining the medical services and “a reasonable time spent traveling to and from the [medical] provider’s location.”27 As a matter of practice, the Office generally limits the amount of compensation to four hours with respect to routine medical appointments.28 However, longer periods of time may be allowed when required by the nature of the medical procedure and/or the need to travel a substantial distance to obtain the medical care.29

23
Horace L. Fuller, 53 ECAB 775, 777 (2002); James P. Bailey, 53 ECAB 484, 496 (2002); William J. Cantrell, 34 ECAB 1223 (1983).
24
Richard F. Williams, 55 ECAB 343, 346 (2004).
25
Id.
26
5 U.S.C. § 8103(a) (2006); see Gayle L. Jackson, 57 ECAB 546, 547-48 (2006).
27
Federal (FECA) Procedure Manual, Part 2 -- Claims, Computing Compensation, Chapter 2.901.16a (December 1995).
28
Federal (FECA) Procedure Manual, Part 3 -- Medical, Administrative Matters, Chapter 3.900.8 (November 1998).
29
Id.

9
 ANALYSIS -- ISSUE 2

The hearing representative denied compensation for intermittent wage loss because appellant presumably could have arranged for medical treatment prior to his scheduled tour of duty from 4:30 to 10:30 p.m. Assuming arguendo appellant could have scheduled his medical care so as not to interfere with his work schedule, nonetheless the Office cannot dictate how he spends his off-duty time. Moreover, while the Office cannot require appellant to schedule medical care on his personal time, he is not entitled to wage-loss compensation for medical treatment he received during off-duty hours. The record indicates that appellant regularly scheduled physical therapy up to three times a week. The facility he attended closed at 4:00 p.m. on Tuesday and Thursday and at 7:00 p.m. on Monday, Wednesday and Friday. On Tuesday and Thursday appellant would have finished therapy at 4:00 p.m., which is a half-hour before his scheduled tour of duty begins. Even assuming a 35-minute commute home as appellant reported, it is highly unlikely that he would be entitled to the 2 hours of compensation already received, let alone 4 hours. Between November 27 and December 20, 2007, 7 of the 12 days appellant received physical therapy fell on either a Tuesday or Thursday.

Appellant has documented numerous days where he attended either physical therapy or doctor’s appointments. The Office cannot deny the claimed compensation merely because he could have scheduled these appointments on his own time. Appellant is not entitled to compensation for appointments he attended during his off-duty time. The case will be remanded to the Office to properly determine which days he is entitled to wage-loss compensation for medical appointments, including a reasonable time for incidental transportation.30

CONCLUSION

The Board finds that the case is not in posture for decision.

30
The Board notes that in many instances there are no corresponding time analysis forms (CA-7a) covering the claimed period, particularly during the June 24 through August 18, 2007 period.

10
 ORDER

IT IS HEREBY ORDERED THAT the August 29, 2008 decision of the Office of Workers’ Compensation Programs is set aside and the case is remanded for further action consistent with this decision.

Issued: September 25, 2009
Washington, DC

Alec J. Koromilas, Chief Judge
Employees’ Compensation Appeals Board

David S. Gerson, Judge
Employees’ Compensation Appeals Board

James A. Haynes, Alternate Judge
Employees’ Compensation Appeals Board

11