United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

W.W., Appellant

and

U.S. POSTAL SERVICE, POST OFFICE, 

Mountain View, CA, Employer

__________________________________________

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Docket No. 16-0660

Issued: February 20, 2018

Appearances: Case Submitted on the Record

Kevin Card, for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 19, 2016 appellant, through her representative, filed a timely appeal from a 

January 29, 2016 merit decision of the Office of Workers’ Compensation Programs (OWCP). 

Pursuant to the Federal Employees’ Compensation Act2(FECA) and 20 C.F.R. §§ 501.2(c) and 

501.3, the Board has jurisdiction over the merits of this case.3

 

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 5 U.S.C. § 8101 et seq. 

3 Appellant, through her representative, timely requested oral argument. After exercising its discretion, the 

Board, by order issued June 9, 2016, denied the representative’s request for oral argument, finding that the issues 

involved could be adequately addressed in a decision based on a review of the case record. Order Denying Request 

for Oral Argument, Docket No. 16-0660 (issued June 9, 2016).
2

ISSUE

The issue is whether appellant has established disability from work commencing 

November 26, 2013 due to an accepted temporary aggravation of a displaced cervical 

intervertebral disc and temporary aggravation of brachial radiculitis. 

FACTUAL HISTORY

OWCP accepted that on or before June 22, 2013 appellant, then a 55-year-old mail 

carrier, sustained a temporary aggravation of displacement of cervical intervertebral disc without 

myelopathy, and a temporary aggravation of brachial neuritis or radiculitis, due to repetitive 

lifting, reaching, twisting, pulling, pushing, and carrying in the performance of duty.

In a July 24, 2013 report, Dr. Mark J. Sontag, an attending Board-certified physiatrist,

noted treating appellant beginning on October 7, 2003 for neck and shoulder pain that began on 

May 14, 2003 when she opened and closed a postal van door. Following April 12, 2010 C5-6 

and C6-7 fusions, appellant was able to return to modified work.4 On June 24, 2013 she

developed increasing neck and interscapular pain, with numbness into the left upper extremity. 

On examination Dr. Sontag noted limited cervical motion, 4/5 weakness in the C5-6 enervation 

affecting the bilateral deltoid and supraspinatus muscles, and weakness in the C7 innervation 

affecting the triceps and extensor digitorum bilaterally. He explained that a March 14, 2012 

postoperative MRI scan showed the anterior fusion from C5 to C7, with hardware at C4-5. 

Dr. Sontag diagnosed a displaced cervical disc and cervical radiculopathy. He opined that 

appellant’s modified duties following her April 12, 2010 fusion, which required lifting and 

carrying 20 pounds intermittently, sitting for four hours a day, twisting two to four hours a day, 

and “driving a vehicle throughout the day, reaggravated the segments at C5-6 and C6-7 resulting 

in reoccurrence of her left C6 and C7 radiculopathy. The work activities also aggravated a one

mm C3-4 disc bulge with facet arthropathy contributing to greater occipital neuralgia.”

Dr. Sontag found that appellant’s condition had materially changed, based on a 60 percent 

restriction in cervical motion, a return of neurologic deficits in the left C6 and C7 innervations, 

and greatly increased pain symptoms. He held appellant off work beginning on June 24, 2013 

and prescribed physical therapy to restore function.

Appellant worked three hours a day and received wage-loss compensation for the 

remaining five hours a day from June 24 to November 25, 2013, based on Dr. Sontag’s opinion.

Dr. Sontag provided reports from September 5 to October 29, 2013 in which he found that 

cervical spine maneuvers on examination reproduced pain and sensory symptoms indicative of 

bilateral C5-7 radiculitis with possible migration of the fusion fixation plate. He observed 

objective 4/5 weakness in the left deltoid, supraspinatus, bilateral extensor digitorum, extensor 

indicis, and abductor pollicis, 4+/5 weakness in the left triceps

In a November 18, 2013 report, Dr. Sontag related appellant’s complaints of “persistent 

pain in her left throat while swallowing,” and esophageal pain when learning forward. On 

 

4 A February 14, 2012 magnetic resonance imaging (MRI) scan showed status post C5-6 and C6-7 anterior 

cervical discectomy and fusion, a one millimeter (mm) C3-4 disc bulge with left greater than right facet arthropathy. 

A March 21, 2013 MRI scan of the lumbar spine noted disc bulges at L3-4, L4-5, and L5-S1.
3

examination he found no tenderness over the throat and no obvious mass. Dr. Sontag diagnosed 

status post April 2010 C5-6 and C6-7 anterior fusion, C4-5 and C7-T1 facet syndrome, chronic 

bilateral C7 radiculopathy, and “[r]ule out anterior dislodging of her hardware.” He held 

appellant off work.

Dr. Sontag held appellant off work through November 25, 2013 and continuing. A 

November 18, 2013 computerized tomography (CT) scan of appellant’s cervical spine showed 

that the anterior C5-6 and C6-7 plate were in place, “with no malalignment or screw movement. 

There [was] solid bridging of C4 to C7.”

On November 27, 2013 appellant filed a claim for compensation (Form CA-7) for total 

disability during the period November 26 to December 19, 2013.

In a December 17, 2013 letter, OWCP advised appellant of the additional evidence 

needed to establish her claim for temporary total disability from November 26 to December 19, 

2013 and continuing, including a narrative report from her attending physician explaining how 

and why the accepted cervical injury would disable her for work for the claimed period. It noted 

that the claim appeared predicated on a nonindustrial throat condition.

In response, appellant provided reports from December 19, 2013 to February 18, 2014 

from Dr. Sontag, noting that an evaluation by a speech language pathologist found normal 

swallowing and motor function, “yet [appellant’s] sensory nerves may be affected, causing her to 

have swallowing difficulties.” Dr. Sontag diagnosed “[s]wallowing problems related to sensory 

dysfunction” caused by the C5-6 and C6-7 anterior fusion. He prescribed medication and 

continued to hold appellant off work.5

On January 16, 2014 appellant filed a claim for compensation (Form CA-7) for total 

disability from December 20, 2013 to February 18, 2014. She then continued to file claims for 

total disability compensation.

By decision dated March 18, 2014, OWCP denied appellant’s claim for total disability 

compensation for the period November 26 to December 19, 2013 and continuing, finding that the 

medical evidence was insufficient to establish causal relationship between her condition and the 

accepted cervical condition and surgery.

Appellant requested a hearing, which was held before an OWCP hearing representative 

on August 26, 2016. During the hearing, she described her modified duties following the 

April 2010 cervical fusion, including casing and pulling down mail two hours a day, overhead 

lifting and reaching, carrying up to 15 pounds intermittently, driving a delivery vehicle, and 

working with her neck flexed. Appellant asserted that these duties aggravated cervical 

radiculopathy and caused problems with swallowing. She submitted additional evidence.

In a March 18, 2014 letter, Dr. Robert K. Wu, an attending Board-certified 

otolaryngologist, reviewed a history of injury and surgery, and related appellant’s swallowing 

difficulties. On laryngoscopic examination he found no obvious metal plate “dehiscent into the 

 

5 Appellant participated in physical therapy from December 2013 to March 2014.
4

throat,” and “slight arytenoid edema.” Dr. Wu reviewed CT scans that showed “no obvious 

extension of the plate into the pharynx.” He diagnosed “chronic neck problems that [were] work 

related.” Dr. Wu noted that he was “not sure why [appellant] is having such problems, but her 

pain seems to worsen with continued work.” He held appellant off work for one month.

On March 25, 2014 Dr. Sontag reviewed Dr. Wu’s report and continued to hold appellant 

off work. He opined on May 6, 2014 that her swallowing difficulties were caused by the cervical 

fixation plate. Dr. Sontag asserted that appellant’s April 2010 cervical fusion contributed to her 

swallowing problems and cervical radiculopathy, and was aggravated by her modified-duty work 

activities beginning on October 18, 2013. He provided periodic progress reports through 

July 2014, finding appellant totally disabled from work.

In an August 4, 2014 report, Dr. Sontag opined that appellant was “permanently disabled 

from her work as a mail carrier.” He explained that her limited-duty activities following the 

April 12, 2010 fusion, including “lifting overhead, reaching, casing, pull[ing] down mail for 

[two] hours, carrying items weighing 15 pounds intermittently, sitting for one hour a day, 

bending, twisting [three] hours a day, driving a vehicle, repetitive carrying items, and neck 

flexion, resulted in an aggravation of her cervical spine condition resulting in increased cervical 

radiculopathy (arm symptoms), swallowing problems, and increased neck pain (facet 

symptoms).” Dr. Sontag explained that the activities affected the anterior fixation plate, causing 

esophageal irritation, and difficulty swallowing. He submitted periodic reports through 

November 10, 2014 reiterating this opinion.

In a September 5, 2014 letter, appellant’s representative advised OWCP’s hearing 

representative that, under File No. xxxxxx047, OWCP had denied appellant’s claim for a 

recurrence of disability commencing June 24, 2013, based on the same medical evidence 

submitted under the present claim.6

The employing establishment provided a September 26, 2014 letter, acknowledging that 

appellant was required to carry up to 15 pounds intermittently and to case mail. However, 

appellant tended to case mail at a slower pace as the repetitive lifting was difficult for her and 

she could not carry multiple trays at one time.

By decision dated November 14, 2014, OWCP’s hearing representative affirmed the 

March 18, 2014 decision, finding that the medical evidence was insufficiently rationalized to 

meet appellant’s burden of proof in establishing that the accepted cervical condition and surgery 

disabled her for work for the claimed period.7

On November 2, 2015 appellant, through her representative, requested reconsideration. 

The representative asserted that Dr. Sontag’s reports were sufficient to meet her burden of proof 

in establishing causal relationship.

 

6 OWCP File No. xxxxxx047 is not before the Board on the present appeal. In September 16 and 28, 2014 letters, 

appellant made minor corrections to the hearing transcript.

7 Appellant retired from the employing establishment, effective December 12, 2014.
5

In a December 8, 2014 report, Dr. Sontag opined that “100 percent of [appellant]’s 

complaints involving her neck, shoulder, interscapular border, arms, and head is secondary to her 

work activities. There is no basis of apportionment of any of her symptoms to any other cause 

other than her work activities.” He continued to find appellant totally disabled from work.

On March 3, 2015 Dr. Sontag opined that appellant’s modified duties beginning 

September 5, 2013, working three hours a day “doing repetitive overhead reaching above 

shoulder level for [two] hours, repetitive neck flexion, and intermittent lifting,” caused pain in 

her neck, left arm, and the trapezius muscles bilaterally. He held her off work beginning 

October 8, 2013 due to an “aggravation of the C5-6, C6-7 fusion causing swallowing problems 

as well as causing C4-5, C7-T1 facet syndrome. There are no other nonwork conditions that 

contributed to the aggravation.” Dr. Sontag provided periodic reports reiterating his support for

causal relationship through May 11, 2015.

In an October 19, 2015 report, Dr. Sontag explained that the objective evidence 

supporting a causal relationship between appellant’s modified duties and the aggravation of her 

cervical fusion included tenderness along the C4-5 and C7-T1 facets, limited cervical motion, 

and neck and trapezial pain reproducible by 20 degrees of neck flexion and 10 degrees cervical 

extension. He emphasized that “100 percent of [appellant’s] current cervical pain [was] related 

to the work exposure from September 9 through October 5, 2013.” Dr. Sontag provided a 

January 4, 2016 progress note.

By decision dated January 29, 2016, OWCP denied modification of its November 14, 

2014 decision, finding that Dr. Sontag’s opinion was insufficient to meet appellant’s burden of 

proof in establishing causal relationship between the claimed disability for work beginning 

November 26, 2013, and the accepted cervical spine condition and surgery. It found that it was 

“insufficient for Dr. Sontag to state that 100 percent of [appellant’s] complaints are secondary to 

her work without providing a rationalized medical opinion which explains the connection 

between the two.”

LEGAL PRECEDENT

Section 8102(a) of FECA8sets forth the basis upon which an employee is eligible for 

compensation benefits. That section provides: “The United States shall pay compensation as 

specified by this subchapter for the disability or death of an employee resulting from personal 

injury sustained while in the performance of his duty....” In general the term “disability” under 

FECA means “incapacity, because of an employment injury, to earn the wages the employee was 

receiving at the time of injury.”

9

 This meaning, for brevity, is expressed as disability for work.10 

For each period of disability claimed, the employee has the burden of proving that he or she was 

disabled for work as a result of the accepted employment injury.11 Whether a particular injury 

 

8 5 U.S.C. § 8102(a). 

9 20 C.F.R. § 10.5(f). See also William H. Kong, 53 ECAB 394 (2002); Donald Johnson, 44 ECAB 540, 548 

(1993); John W. Normand, 39 ECAB 1378 (1988); Gene Collins, 35 ECAB 544 (1984). 

10 See Roberta L. Kaaumoana, 54 ECAB 150 (2002). 

11 See William A. Archer, 55 ECAB 674 (2004). 
6

caused an employee to be disabled for employment and the duration of that disability are medical 

issues which must be proved by the preponderance of the reliable, probative, and substantial 

medical evidence.12

ANALYSIS

OWCP accepted that appellant sustained a temporary aggravation of a displaced cervical 

disc, and a temporary aggravation of brachial neuritis. Appellant received compensation for 

work absences from June 24 to November 25, 2013, based on the opinion of Dr. Sontag, an 

attending Board-certified physiatrist. Thereafter, she claimed compensation for total disability

commencing November 26, 2013 after her physician, Dr. Sontag, noted her complaints of throat 

pain and difficulty swallowing.

In a July 24, 2013 report, Dr. Sontag opined that appellant’s modified duties following 

her April 12, 2010 fusion caused a recurrence of C5-6 and C6-7 radiculopathy and aggravated a 

one mm C3-4 disc bulge. He observed objective weakness in the left deltoid, supraspinatus, 

bilateral extensor digitorum, extensor indicis, abductor pollicis, and triceps. Dr. Sontag opined 

that the fixation plates, although stable, affected appellant’s sensory nerves. Dr. Wu, an 

attending Board-certified otolaryngologist, confirmed the plates had not shifted. However, 

neither physician provided medical rationale which would explain the pathophysiologic 

mechanism whereby the anterior C5-6 and C6-7 fixation plates would cause difficulty 

swallowing. In the absence of such rationale, the opinions of Dr. Sontag and Dr. Wu are 

insufficient to meet appellant’s burden of proof.13 

Additionally, Dr. Sontag emphasized in December 8, 2014 and October 19, 2015 reports 

that appellant’s work activities caused “100 percent” of appellant’s head, neck, upper extremity, 

and swallowing complaints, as cervical range of motion maneuvers reproduced her symptoms. 

He did not explain, however, the physiologic mechanism of this phenomenon, or whether these 

maneuvers caused any objective change in appellant’s condition. As Dr. Sontag’s opinion lacks 

these crucial explanations, it does not meet appellant’s burden of proof in establishing causal 

relationship in this case.14

On appeal appellant’s representative contends that OWCP violated 20 C.F.R. § 10.617(e) 

by failing to provide appellant a copy of the employing establishment’s September 26, 2014 

response to the hearing transcript, disagreeing with the description of her limited duties. The 

representative asserts that this prevented appellant’s physician from properly responding to the 

employing establishment’s contentions.

15

 The Board notes, however, that this is harmless error 

 

12 See Fereidoon Kharabi, 52 ECAB 291, 292 (2001). 

13 See Jimmie H. Duckett, 52 ECAB 332 (2001); Frank D. Haislah, 52 ECAB 457 (2001) (medical reports not 

containing rationale on causal relationship are entitled to little probative value).

14 Id.

15 Appellant’s representative inadvertently cited 20 C.F.R. § 10.618(b).
7

under R.W.

16

 Additionally, appellant’s representative argues that Dr. Sontag’s reports were 

sufficiently certain and well rationalized to meet appellant’s burden of proof in establishing 

causal relationship between the accepted cervical spine injury and the claimed period of 

disability. As set forth above, Dr. Sontag’s reports were insufficiently rationalized to meet 

appellant’s burden of proof.

Appellant may submit new evidence or argument with a written request for 

reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) 

and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant has not established disability for work on and after 

November 26, 2013 due to an accepted temporary aggravation of a displaced cervical 

intervertebral disc and temporary aggravation of brachial radiculitis.

 

16 Docket No. 06-2000 (issued February 22, 2007) (appellant alleged that he was denied due process when he was 

not served with a copy of the employing establishment’s comments following the hearing. While correct that OWCP

is required to furnish a copy of any comments made by the employing establishment to the employee and allot him 

an additional 20 days to comment under 20 CFR § 10.617(e), the Board notes that this is harmless error. In 

addressing violations of procedural due process under the Act, the Board has held that the opportunity for a hearing 

or reconsideration by OWCP, together with the Board’s review on appeal, constitutes meaningful post-deprivation 

processes whereby the government can address procedural errors. See Lan Thi Do, 46 ECAB 366 (1994).
8

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’

Compensation Programs dated January 29, 2016 is affirmed.

Issued: February 20, 2018

Washington, DC

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board