United States Department of Labor

Employees’ Compensation Appeals Board

__________________________________________

R.K., Appellant

and

DEPARTMENT OF THE ARMY, ARMY 

BENEFITS CENTER -- CIVILIAN, 

Fort Riley, KS, Employer

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Docket No. 19-1980

Issued: May 7, 2020

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

ALEC J. KOROMILAS, Chief Judge

CHRISTOPHER J. GODFREY, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On September 30, 2019 appellant filed a timely appeal from an August 28, 2019 merit 

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

Employees’ Compensation Act1(FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has 

jurisdiction over the merits of this case.2

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that, following the August 28, 2019 decision, OWCP received additional evidence. However, 

the Board’s Rules of Procedure provides: “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.
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ISSUE

The issue is whether OWCP has met its burden of proof to terminate appellant’s wage-loss 

compensation benefits, effective August 29, 2019, as he was no longer disabled due to his accepted 

August 8, 2017 employment injury.

FACTUAL HISTORY

On August 15, 2017 appellant, then a 53-year-old contract specialist, filed a traumatic 

injury claim (Form CA-1) alleging that on August 8, 2017 he injured both his knees, left front and 

back of head, lower back, shoulder, and neck when he fell down stairs while in the performance 

of duty. He stopped work on August 9, 2017. 

Appellant was initially treated in the hospital emergency department on August 9, 2017 by

Dr. Robert S. Orosz, who specializes in emergency medicine. Dr. Orosz described that appellant 

fell on stairs at work and experienced pain in both knees, back, and right shoulder. He reviewed 

diagnostic imaging, provided physical examination findings, and diagnosed osteoarthritis of the 

right knee, degenerative changes of the right shoulder, and spondylosis at L3-S1 and C6-7.

Dr. Orosz provided an initial impression of headache/concussion. 

In a treatment noted dated September 21, 2017, Dr. Joseph W. Farina, a neurologist 

specializing in headache treatment, noted that appellant presented with a headache and dizziness. 

He explained that appellant had a migraine due to falling down stairs at work. 

On October 25, 2017 OWCP accepted appellant’s claim for concussion without loss of 

consciousness. On October 27, 2017 it subsequently expanded acceptance of his claim to include 

the conditions of postconcussional syndrome and aggravation of bilateral primary osteoarthritis of 

the knee. OWCP placed appellant on the periodic rolls effective January 7, 2018. 

In a December 21, 2017 report, Dr. Donald Baker, a Board-certified orthopedic surgeon, 

noted that appellant was seen for follow up of left knee pain. Upon examination of appellant’s left 

knee, he observed a stable knee in flexion and extension. Dr. Baker reported that appellant was 

doing better and, as such, allowed him to return to his regular job. He diagnosed bilateral primary 

osteoarthritis of the knee and internal prosthetic device causing pain and noted appellant’s 

prescriptions for various medications, including one for vascular headaches. 

On August 7, 2018 OWCP referred appellant, along with a statement of accepted facts 

(SOAF), a copy of the case record, and a series of questions to Dr. Eric K. Undesser, a Boardcertified neurologist, for a second-opinion evaluation regarding the status of appellant’s accepted 

August 8, 2017 employment injury. In a December 4, 2018 report, Dr. Undesser noted his review 

of the SOAF and the medical evidence of record. He described the August 8, 2017 employment 

injury and noted appellant’s accepted conditions of postconcussional syndrome and aggravation 

of bilateral knee arthritis. Dr. Undesser indicated that appellant complained of daily headaches, 

difficulty with speech and finding words, trouble with depth perception and balance, and difficulty 

remembering recent events. Upon examination, he observed that appellant was oriented to person, 

place, time, and that coordination and dexterity were normal. Neurological examination was 

normal except for cognition with no evidence of focal neurologic deficit. Dr. Undesser opined 
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that appellant had no neurologic deficits that would prevent working in any occupation. He 

indicated that, while appellant’s employment position was sedentary in nature, it required 

“cognitive ability to navigate the complex pathways of government contracting.” Dr. Undesser 

noted that appellant had preexisting migraines that appeared to have been aggravated by the fall 

and indicated that he had frequent headaches that may require accommodation for poor 

performance or work absence during a headache. He recommended neuropsychological testing to 

assess the extent of cognitive deficit and whether the pattern was consistent with mild concussion. 

Appellant submitted medical reports dated November 19, 2018 to January 21, 2019 from

Dr. Zaineb Daud, a neurologist. Dr. Daud recounted appellant’s complaints of chronic headaches 

and short-term memory problems. He discussed appellant’s history and reported that neurological 

and sensory examinations were both normal. Dr. Daud diagnosed headache and postconcussional 

syndrome. In a January 21, 2019 progress report, he explained that appellant was still experiencing 

short-term memory problems and headaches and was unable to function properly to get to his job. 

On March 18, 2019 OWCP referred appellant to Dr. Garrett W. Andrews, a Board-certified 

neuropsychologist, for a second-opinion evaluation regarding the status of appellant’s accepted 

August 8, 2017 employment injury. In an April 8, 2019 report, Dr. Andrews reviewed appellant’s 

history. He reported that mental status examination demonstrated that appellant’s speech was 

fluent, but slurred and that he was awake, alert, and oriented to all spheres. Dr. Andrews explained 

that the current examination was deemed invalid as appellant failed multiple stand-alone and 

embedded measures of performance validity. He assessed that appellant “possibly suffered” a 

mild concussion because of a fall. Dr. Andrews related that evidence and research suggested that 

recovery for concussion was typically within two weeks to three months status postinjury. He 

reported that appellant’s current presentation revealed invalid neurocognitive data and elevated 

symptoms, which suggested a willful attempt to underperform and exaggerate symptoms. 

Dr. Andrews, however, also indicated that appellant’s subjective difficulties may also be a result 

of his medications since appellant was on a number of medication that could affect cognition. 

On July 17, 2019 OWCP received an addendum note by Dr. Undesser who indicated that 

a neuropsychological evaluation was performed on April 8, 2019 by Dr. Andrews. Dr. Undesser 

related that results of the examination were deemed invalid due to failure at multiple stand-alone 

and embedded measures of performance validity suggesting a willful attempt to underperform. He

reiterated that appellant had no neurologic deficits that would prevent working in any occupation. 

Dr. Undesser explained that, although neuropsychological testing did not support cognitive 

deficits due to traumatic brain injury, there was the possibility of mild cognitive impairment due 

to side effects of medication. He completed a work capacity evaluation (Form OWCP-5c), which 

indicated that appellant could return to work “from a neurological perspective.” 

On July 25, 2019 OWCP proposed to terminate appellant’s wage-loss compensation 

benefits because he was no longer disabled due to his August 8, 2017 employment injury. It 

afforded him 30 days to submit additional evidence or argument, in writing, if he disagreed with 

the proposed termination. 

In an August 21, 2019 statement, appellant asserted that both Dr. Andrews and

Dr. Undesser agreed that appellant had memory loss and that adding stress would cause problems. 
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He related that he was looking for employment opportunities at the employing establishment that 

were less stressful. 

By decision dated August 28, 2019, OWCP finalized the termination of appellant’s wageloss compensation benefits, effective August 29, 2019, as it found that he had no disability due to 

his accepted August 8, 2017 employment injury. It found that the weight of medical evidence 

rested with Dr. Baker, who indicated in a December 21, 2017 report that appellant was no longer 

disabled due to his accepted orthopedic condition, and Dr. Undesser and Dr. Andrews, OWCP 

second-opinion examiners, who indicated in reports dated December 4, 2018 and April 8, 2019, 

that appellant could work full duty from a neurological perspective. 

LEGAL PRECEDENT

Once OWCP accepts a claim and pays compensation, it bears the burden of proof to justify 

termination or modification of benefits.3 It may not terminate compensation without establishing 

either that the disability has ceased or that it is no longer related to the employment.4 OWCP’s 

burden of proof includes the necessity of furnishing rationalized medical opinion evidence based 

on a proper factual and medical background.5 

ANALYSIS

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation benefits, effective August 29, 2019.

OWCP terminated appellant’s wage-loss compensation benefits for his neurological

conditions based on the reports of Dr. Undesser and Dr. Andrews, OWCP second-opinion 

examiners. In a December 4, 2018 report, Dr. Undesser noted that appellant’s claim was accepted 

for postconcussional syndrome and aggravation of bilateral knee arthritis causally related to an 

August 8, 2017 fall at work. He reported that neurological examination was normal aside from 

cognition with no evidence of focal neurologic deficit. Dr. Undesser opined that appellant had no 

neurologic deficits that would prevent working in any occupation, but that appellant had frequent 

headaches that may require accommodation. He recommended neuropsychological testing to 

assess the extent of cognitive deficit.

In a March 18, 2019 report, Dr. Andrews explained that his examination was deemed 

invalid as appellant failed multiple stand-alone and embedded measures of performance validity. 

He assessed that appellant “possibly suffered” a mild concussion because of a fall and related that 

recovery for concussion was typically within two weeks to three months status postinjury.

Dr. Andrews noted that the subjective cognitive difficulties could be the result of appellant’s

 

3 A.D., Docket No. 18-0497 (issued July 25, 2018); S.F., 59 ECAB 642 (2008); Kelly Y. Simpson, 57 ECAB 197 

(2005); Paul L. Stewart, 54 ECAB 824 (2003).

4 A.G., Docket No. 18-0749 (issued November 7, 2018); see also I.J., 59 ECAB 408 (2008); Elsie L. Price, 54 

ECAB 734 (2003). 

5 R.R., Docket No. 19-0173 (issued May 2, 2019); T.P., 58 ECAB 524 (2007); Del K. Rykert, 40 ECAB 284 (1988).
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medications and noted he presented with slurred speech. He indicated that the medications could 

impact cognition and could affect every day memory.

In a July 16, 2019 addendum note, Dr. Undesser related that results of the April 8, 2019 

neuropsychological evaluation by Dr. Andrews were deemed invalid. He reiterated that appellant 

had no neurologic deficits that would prevent working in any occupation. Dr. Undesser also 

explained that, although neuropsychological testing did not support cognitive deficits due to 

traumatic brain injury, there was the possibility of mild cognitive impairment due to side effects 

of medication. 

The Board finds that Dr. Undesser’s opinion was inconsistent and conclusory in nature and 

did not contain sufficient medical reasoning to establish that appellant was no longer disabled due 

to his accepted August 8, 2017 employment injury.6 In assessing medical evidence, the number 

of physicians supporting one position or another is not controlling; the weight of such evidence is 

determined by its reliability, its probative value, and its convincing quality.7 The factors that 

determine the probative value of medical evidence include the opportunity for and thoroughness 

of examination performed by the physician, the accuracy or completeness of the physician’s 

knowledge of the facts and medical history, the care of analysis manifested, and the medical 

rationale expressed by the physician on the issues addressed to him by OWCP.8

Although Dr. Undesser opined in his December 4, 2018 report that appellant had no 

neurologic deficits that, would prevent him from working, he also noted that appellant had frequent 

headaches that may require accommodation. He further indicated in his July 16, 2019 addendum 

that, while neuropsychological testing did not support cognitive deficits due to traumatic brain 

injury, there was the possibility of mild cognitive impairment due to side effects of medication. 

The Board finds that Dr. Undesser did not definitively conclude that appellant was able to return 

to work. Dr. Undesser did not provide sufficient medical reasoning or explanation for how 

appellant was no longer disabled due to his accepted neurological injury, but may still require

accommodations due to mild impairment. Furthermore, he did not adequately explain how he 

concluded that appellant had cognitive deficits from neuropsychological testing when

Dr. Andrews determined that his examination was invalid. Considering the internal 

inconsistencies in his report, Dr. Undesser’s report is speculative at best.9 Likewise, Dr. Andrews 

also did not conclusively opine that appellant was no longer disabled due to his August 8, 2017 

employment injury, but merely noted that appellant’s examination was deemed invalid and that 

mild concussions typically resolve in a few weeks.

10

 While Dr. Andrews noted that the subjective 

cognitive difficulties could be the result of appellant’s medications and noted he presented with 

 

6 See J.W., Docket No. 19-1014 (issued October 24, 2019); S.B., Docket No. 18-0700 (issued January 9, 2019); 

S.J., Docket No. 17-0543 (issued August 1, 2017).

7 D.W., Docket No. 18-0123 (issued October 4, 2018); Nicolette R. Kelstrom, 54 ECAB 570 (2003).

8 A.G., Docket No. 19-0220 (issued August 1, 2019); James T. Johnson, 39 ECAB 1252 (1988).

9 Medical opinions that are speculative or equivocal in character are of diminished probative value. D.B., Docket 

No. 18-1359 (issued May 14, 2019).

10 See S.J., Docket No. 17-0543 (issued August 1, 2017).
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slurred speech. He indicated that the medications could impact cognition and could affect 

everyday memory. Because the reports of Dr. Undesser and Dr. Andrews lack probative value, 

the Board finds that OWCP erred in relying on his opinion as the basis to terminate appellant’s 

wage-loss compensation benefits. 

The Board further finds that OWCP erred in relying on Dr. Baker’s December 21, 2017 

examination note as the basis in determining that appellant was no longer disabled due to his 

accepted bilateral knee injury. In a December 21, 2017 report, Dr. Baker noted that left knee 

examination findings revealed a stable knee in flexion and extension. He reported that appellant 

would be allowed to return to his regular job. Dr. Baker, however, did not address whether 

appellant was no longer disabled from work due to his right knee osteoarthritic injury. The Board 

notes that appellant’s claim was accepted for aggravation of bilateral knee osteoarthritis. Although

Dr. Baker discussed appellant’s left knee injury, he failed to provide any objective findings 

regarding appellant’s right knee and did not opine on whether appellant’s disability due to his right 

knee osteoarthritic injury had resolved.11 Accordingly, this report is of no probative value to 

establish termination of appellant’s wage-loss compensation benefits.12

The Board therefore finds that OWCP has not met its burden of proof to terminate 

appellant’s wage-loss compensation benefits, effective August 29, 2019, as the medical evidence 

of record is insufficient to establish that he no longer has disability causally related to his accepted 

August 8, 2017 employment injury.13

CONCLUSION

The Board finds that OWCP has not met its burden of proof to terminate appellant’s wageloss compensation benefits, effective August 29, 2019.

 

11 See S.T., Docket No. 18-1144 (issued August 9, 2019).

12 See L.B., Docket No. 18-0533 (issued August 27, 2018); D.K., Docket No. 17-1549 (issued July 6, 2018).

13 See D.W., Docket No. 18-0123 (issued October 4, 2018); Willa M. Frazier, 55 ECAB 379 (2004).
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ORDER

IT IS HEREBY ORDERED THAT the August 28, 2019 decision of the Office of 

Workers’ Compensation Programs is reversed.

Issued: May 7, 2020

Washington, DC

Alec J. Koromilas, Chief Judge

Employees’ Compensation Appeals Board

Christopher J. Godfrey, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board