United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

A.B., Appellant

and

U.S. POSTAL SERVICE, MILTON POST 

OFFICE, Milton, NH, Employer

__________________________________________

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Docket No. 22-1128

Issued: June 7, 2023

Appearances: Case Submitted on the Record

Bradley M. Lown, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JAMES D. McGINLEY, Alternate Judge

JURISDICTION

On July 18, 2022 appellant, through counsel, filed a timely appeal from a March 2, 2022 

merit decision of the Office of Workers’ Compensation Programs (OWCP).2 Pursuant to the 

1

In all cases in which a representative has been authorized in a matter before the Board, no claim for a fee for 

legal or other service performed on appeal before the Board is valid unless approved by the Board. 20 C.F.R. 

§ 501.9(e). No contract for a stipulated fee or on a contingent fee basis will be approved by the Board. Id. An 

attorney or representative’s collection of a fee without the Board’s approval may constitute a misdemeanor, subject 

to fine or imprisonment for up to one year or both. Id.; see also 18 U.S.C. § 292. Demands for payment of fees to a 

representative, prior to approval by the Board, may be reported to appropriate authorities for investigation.

2 Appellant, through counsel, submitted a timely request for oral argument before the Board. 20 C.F.R. 

§ 501.5(b). Pursuant to the Board’s Rules of Procedure, oral argument may be held in the discretion of the Board. 

20 C.F.R. § 501.5(a). In support of appellant’s oral argument request, she asserted that oral argument should be 

granted because she was discriminated against and sought justice. The Board, in exercising its discretion, denies 

appellant’s request for oral argument because the arguments on appeal can adequately be addressed in a decision 

based on a review of the case record. Oral argument in this appeal would further delay issuance of a Board decision 

and not serve a useful purpose. As such, the oral argument request is denied, and this decision is based on the case 

record as submitted to the Board.
2

Federal Employee’s Compensation Act3(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board 

has jurisdiction over the merits of this case.4

ISSUE

The issue is whether appellant has met her burden of proof to establish disability from 

work for the period January 11 through October 23, 2020, causally related to her accepted 

November 26, 2019 employment injury. 

FACTUAL HISTORY

On November 26, 2019 appellant, then a 39-year-old rural carrier associate, filed a 

traumatic injury claim (Form CA-1) alleging that on that date she was involved in a motor 

vehicle accident while in the performance of duty, injuring her back, head, neck, left shin, 

shoulders, and right arm. She stopped work on November 27, 2019. OWCP accepted the claim 

for thoracic and lumbar strains. 

OWCP received reports from December 23, 2019 through November 1, 2020, from

Dr. Mark L. Crosser, an attending chiropractor. Dr. Crosser noted a history of injury of 

appellant’s November 26, 2019 employment injury and diagnosed low back, thoracic spine pain, 

cervicalgia, segmental and somatic dysfunction of lumbar, thoracic, and cervical regions, and 

other specified disorders of muscle. He opined that the diagnosed conditions were caused or 

aggravated by an employment activity, and noted his treatment of appellant’s conditions. 

Dr. Crosser further opined that she was totally disabled from work commencing 

November 26, 2019.

In a form report dated May 16, 2020, Dr. Peter J. Dirksmeier, an attending Boardcertified orthopedic surgeon, diagnosed cervical spondylosis and lumbar facet arthrosis. He

opined that appellant’s diagnosed conditions and current disability from work resulted from the 

November 26, 2019 employment injury. 

In a hospital report, after-visit summaries, and progress note dated May 16, August 27, 

and September 28, 2020, Heath R. Pelletier, a physician assistant, diagnosed neck pain; chronic 

midline low back pain without sciatica; mild back pain; cervical spondylosis; and idiopathic 

scoliosis (and kyphoscoliosis). 

Physical therapy notes dated June 10 through November 24, 2020 indicated appellant’s 

diagnoses as cervicalgia, and low back and thoracic spine pain. 

In an October 20, 2020 form report, Dr. Jung Kim, a Board-certified anesthesiologist

specializing in pain medicine, diagnosed lumbar spondylosis and opined that appellant’s 

3

5 U.S.C. § 8101 et seq.

4 The Board notes that, following the March 2, 2022decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedureprovides: “The Board’s review of a case is limited to the evidence in the case record 

that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the 

Board for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this 

additional evidence for the first time on appeal. Id.
3

diagnosed condition and current disability from work resulted from the November 26, 2019 

employment injury.

On December 9, 2020 appellant filed a claim for compensation (Form CA-7) for 

disability from work for the period January 11 through October 23, 2020.

In a development letter dated December 15, 2020, OWCP informed appellant of the 

deficiencies in her claim and requested that she submit medical evidence to support her reported 

disability during the claimed period causally related to the accepted November 26, 2019 

employment injury. It afforded her 30 days to respond.

In an additional form report dated August 27, 2020, Dr. Dirksmeier continued to opine 

that appellant’s diagnosed cervical and lumbar spine conditions and current disability from work,

were causally related to her November 26, 2019 employment injury. 

OWCP also received an additional November 5, 2020 form report from Dr. Dirksmeier

who reiterated his opinion that appellant’s diagnoses of cervical spondylosis and lumbar facet 

arthrosis and current disability from work, resulted from the November 26, 2019 employment 

injury.

A partial lumbar spine magnetic resonance imaging (MRI) scan report dated 

December 10, 2020 by Dr. Eric C. Flint, a Board-certified diagnostic radiologist, provided 

impressions of a large sacral cyst displacing the nerve roots to the left of midline throughout the 

sacrum and resulting in expansion of the spinal canal; multilevel facet arthropathy; and canal 

stenosis that was greatest at L2-3. 

On December 17, 2020 OWCP referred appellant, along with a statement of accepted 

facts (SOAF), the case record, and a series of questions, to Dr. Kenneth Polivy, a Board-certified 

orthopedic surgeon, for a second opinion evaluation to determine the nature of her November 26, 

2019 employment-related conditions, extent of her disability, and treatment recommendations. 

In a February 4, 2021 report, Dr. Polivy noted his review of the SOAF and medical 

record. On physical examination, he observed mainly subjective complaints of decreased 

sensation in the fingers with reported global pain sensations in the cervical, thoracic, and lumbar 

spines which were not confirmed by objective complaints. Dr. Polivy reviewed diagnostic test 

results, including a recent MRI scan which showed a large sacral cyst for which appellant had 

been referred to Dartmouth Hitchcock. He diagnosed multifocal subjective pain complaints.

Dr. Polivy related that clinically it was not clear that appellant could return to her date-of-injury 

job as a rural carrier associate until she was seen at a medical facility. He concluded that his 

objective findings on physical examination indicated that she could at least perform full-time, 

light-duty work with a 20-pound lifting capacity. Dr. Polivy further concluded that if a new MRI 

scan indicated no need for surgery, then appellant should be capable of an increased lifting

capacity. In a work capacity evaluation (Form OWCP-5c) dated February 6, 2021, he reiterated 

appellant’s work capacity and restrictions.

In a February 12, 2021 progress note, Dr. Jennifer Hong, a neurosurgeon, examined 

appellant and provided assessments on a constellation of nonspecific symptoms which involved 

both sensory changes including, bilateral hand numbness and increased spasticity throughout her 

body; and other confusing symptoms such as, amenorrhea. She noted, however, that she was 
4

unsure of the cause of appellant’s symptoms, noting that appellant suffered from, inter alia, an 

incredible trauma from her work-related motor vehicle accident. Dr. Hong ordered cervical and 

thoracic spine MRI scans to rule out a lesion that was causing spinal cord compression .

By letter dated March 8, 2021, OWCP requested that Dr. Dirksmeier review Dr. Polivy’s 

February 4, 2021 report, and provide an opinion regarding appellant’s medical status and 

disability.

OWCP continued to receive reports dated through March 25, 2021 from Dr. Crosser, who 

addressed the treatment of appellant’s low back, mid-back, neck, shoulder, hip, leg, hand, and 

arm pain. 

By decision dated March 31, 2021, OWCP denied appellant’s claim for disability from 

work for the period January 11 through October 23, 2020. It found that the medical evidence of 

record was insufficient to establish that she was disabled from work commencing January 11, 

2020 due to her accepted employment injury. 

OWCP received daily notes and progress reports dated through December 28, 2020 from 

appellant’s physical therapists.

On April 12, 2021 appellant, through counsel, requested a telephonic hearing before a 

representative of OWCP’s Branch of Hearings and Review regarding the March 31, 2021 

decision.

By letter dated April 13, 2021, OWCP requested that Dr. Polivy provide a supplemental 

report addressing the nature of appellant’s claimed total disability for the period January 11 

through October 23, 2020. No response was received. 

In a form report dated April 22, 2021, Dr. Dirksmeier continued to opine that appellant’s 

diagnoses of cervical spondylosis, lumbar facet arthrosis and current disability,resulted from her 

November 26, 2019 employment injury.

In a May 12, 2021 letter, Dr. Dirksmeier recommended that Dr. Hong conduct a further 

workup, and if that did not reveal any red flag signs or need for intervention, then he 

recommended a functional capacity evaluation (FCE). 

Dr. Hong, in a progress note dated October 8, 2021, recommended an electromyogram 

(EMG) because there was no clear explanation from thoracic and cervical spine MRI scans for 

appellant’s severe neurologic symptoms in her legs, arms and hips, neck, and back. She 

explained that an EMG could reveal treatable neuropathy.

In additional reports dated through December 13, 2021, Dr. Crosser reiterated his 

treatment of appellant for her low back, mid-back, neck, shoulder, hip, leg, hand, and arm pain. 

Following a telephonic hearing held on December 16, 2021, OWCP received reports 

dated through February 7, 2022 by Dr. Crosser who continued to treat appellant for her low back, 

mid-back, neck, shoulder, hip, leg, hand, and arm pain.
5

In a December 20, 2021 letter, Dr. Dirksmeier noted his belief that appellant had been off 

work since her 2019 work-related injury. He agreed with Dr. Hong’s assessment and plan.

By decision dated March 2, 2022, OWCP’s hearing representative affirmed the 

March 31, 2021 decision.

LEGAL PRECEDENT

An employee seeking benefits under FECA5 has the burden of proof to establish the

essential elements of his or her claim, including that any disability or specific condition for

which compensation is claimed is causally related to the employment injury.6 For each period of

disability claimed, the employee has the burden of proof to establish that he or she was disabled

from work as a result of the accepted employment injury.7 Whether a particular injury causes an

employee to become disabled from work, and the duration of that disability, are medical issues

that must be proven by a preponderance of probative and reliable medical opinion evidence.8

Under FECA, the term “disability” means an incapacity because of an employment

injury, to earn the wages the employee was receiving at the time of the injury.9 When, however,

the medical evidence establishes that the residuals or sequelae of an employment injury are such

that, from a medical standpoint, prevent the employee from continuing in his or her employment,

he or she is entitled to compensation for any loss of wages.10

To establish causal relationship between the disability claimed and the employment

injury, an employee mustsubmit rationalized medical evidence, based on a complete factual and

medical background, supporting such causal relationship.11 The opinion of the physician must

be one of reasonable medical certainty and must be supported by medical rationale explaining

the nature of the relationship between the diagnosed condition and the specific employment

incident identified by the employee.12

The Board will not require OWCP to pay compensation for disability in the absence of 

medical evidence directly addressing the specific dates of disability for which compensation is

5

Supra note 3.

6

See D.S., Docket No. 20-0638 (issued November 17, 2020); F.H., Docket No. 18-0160 (issued August 23, 

2019); C.R., Docket No. 18-1805 (issued May 10, 2019); Kathryn Haggerty, 45 ECAB 383 (1994); Elaine 

Pendleton, 40 ECAB 1143 (1989).

7

See L.F., Docket No. 19-0324 (issued January 2, 2020); T.L., Docket No. 18-0934 (issued May 8, 2019); 

Fereidoon Kharabi, 52 ECAB 291, 293 (2001).

8

See 20 C.F.R. § 10.5(f); N.M., Docket No. 18-0939 (issued December 6, 2018).

9

Id. at § 10.5(f); see e.g.,G.T., 18-1369 (issued March 13, 2019); Cheryl L. Decavitch, 50 ECAB 397 (1999).

10 G.T., id.; Merle J. Marceau, 53 ECAB 197 (2001).

11 See S.J., Docket No. 17-0828 (issued December 20, 2017); Kathryn E. DeMarsh, 56 ECAB 677 (2005).

12 C.B., Docket No. 18-0633 (issued November 16, 2018); Leslie C. Moore, 52 ECAB 132 (2000); Gary L.

Fowler, 45 ECAB 365 (1994).
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claimed. To do so would essentially allow an employee to self-certify his or her disability and 

entitlement to compensation.13

ANALYSIS

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

On December 17, 2020 OWCP referred appellant to Dr. Polivy for a second opinion 

evaluation regarding her work status and residuals of her November 26, 2019 employment 

injury. In a February 4, 2021 report, Dr. Polivy noted his review of the SOAF and medical 

record, and provided his examination findings. He diagnosed multifocal subjective pain 

complaints, but advised that his diagnosis was not confirmed by his objective physical 

examination findings. Dr. Polivy opined that appellant could perform full-time, light-duty work 

with a lifting restriction. In a February 6, 2021 Form OWCP-5c, he reiterated appellant’s 

restrictions and work capacity. By letter dated April 13, 2021, OWCP requested that Dr. Polivy 

provide a supplemental report addressing the nature of appellant’s total disability for the period

January 11 through October 23, 2020, but no response was received.

Proceedings under FECA are not adversarial in nature, nor is OWCP a disinterested 

arbiter.14 While the claimant has the responsibility to establish entitlement to compensation, 

OWCP shares responsibility in the development of the evidence. It has the obligation to see that 

justice is done.15 Accordingly, once OWCP undertakes to develop the medical evidence further, 

it has the responsibility to do so in a manner that will resolve the relevant issues in the case. 16 

The case must therefore be remanded for further development. 

On remand, OWCP shall obtain a supplemental opinion from Dr. Polivy as to whether 

appellant was totally disabled from work during the period January 11 through October 23, 2020 

due to the accepted injury. If Dr. Polivy is unavailable or unwilling to provide a supplemental 

opinion, OWCP shall refer appellant, together with a SOAF and a series of questions to a new 

second opinion physician in the appropriate field of medicine. 17 Following this and other such 

further development as deemed necessary, OWCP shall issue a de novo decision.

CONCLUSION

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

13 See S.G., Docket No. 18-1076 (issued April11, 2019);William A. Archer, 55 ECAB 674 (2004); Fereidoon 

Kharabi, supra note 7.

14 N.L., Docket No. 19-1592 (issued March 12, 2020); M.T., Docket No. 19-0373 (issued August22, 2019); B.A., 

Docket No. 17-1360 (issued January 10, 2018).

15 Id.;see also DonaldR. Gervasi, 57 ECAB 281, 286 (2005); WilliamJ. Cantrell, 34 ECAB 1233, 1237 (1983).

16 T.K., Docket No. 20-0150 (issued July 9, 2020); T.C., Docket No. 17-1906 (issued January 10, 2018).

17 See S.B., Docket No. 22-1067 (issued April 20, 2023).
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ORDER

IT IS HEREBY ORDERED THAT the March 2, 2022 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded for further proceedings 

consistent with this decision of the Board.

Issued: June 7, 2023

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

James D. McGinley, Alternate Judge

Employees’ Compensation Appeals Board