United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

T.R., Appellant 

and 

DEPARTMENT OF THE ARMY, 

PHYSICAL SECURITY DIVISION, 

DIRECTORATE OF EMERGENCY SERVICES, 

Fort McCoy, WI, Employer 

__________________________________________ 

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Docket No. 15-0321 

Issued: October 6, 2015 

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

COLLEEN DUFFY KIKO, Judge 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 25, 2014 appellant, through counsel, filed a timely appeal from an 

August 18, 2014 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. 

ISSUE 

The issue is whether OWCP properly denied appellant’s request for knee surgeries. 

On appeal appellant, through counsel, argues that she provided abundant factual and 

medical evidence to establish that she injured both knees as a result of the employment incident, 

that she required surgery on both knees, and that OWCP’s decision should be reversed. In the 

 1

 5 U.S.C. § 8101 et seq. 
2

alternative, counsel argues that at the very least there was a conflict in the medical evidence and 

the case should be referred to a referee physician. 

FACTUAL HISTORY 

On July 11, 2011 appellant, then a 35-year-old criminal investigator, filed a traumatic 

injury claim alleging that on July 8, 2011 she parked a government vehicle in a lot adjacent to 

the old Walson Hospital and was walking through the parking lot back to the main building when 

she tripped over a curb. She listed the nature of her injury as dislocation of the knees and further 

undetermined injuries. 

Appellant was seen on July 11, 2011 by Dr. Michael Ruggerio, an osteopath, who noted 

that she fell on both knees after she tripped on a curb at work. Dr. Ruggerio assessed her with 

internal derangement of the knees. 

Dr. Fotios Tjoumakaris, a Board-certified orthopedic surgeon, treated appellant on 

July 18, August 22, and September 7, 2011. He diagnosed left knee chondromalacia status post 

patellofemoral dislocation with increased thinning of her articular cartilage and an acute 

exacerbation of some mild underlying chondromalacia. 

By decision dated October 3, 2011, OWCP denied appellant’s claim, finding that she had 

not established that the incident occurred as alleged. 

On October 12, 2011 appellant requested an oral hearing before an OWCP hearing 

representative. 

Appellant submitted a July 21, 2011 magnetic resonance imaging (MRI) scan taken of the 

right knee without contrast, interpreted by Dr. Siddharth Prakash, a Board-certified radiologist. 

Dr. Prakash found mild medial joint space narrowing with thinning of the underlying articular 

cartilage; no meniscal or ligamentous tear; suprapatellar joint effusion; and chondromalacia 

patella. He noted that appellant sustained patellar dislocation following a fall on July 8, 2011. 

In an October 6, 2011 report, Dr. Jason Wong, appellant’s treating osteopath, noted that 

appellant came in for an evaluation of her knees. He noted that at the beginning of July 2011, 

she had been walking with heels and got the right heel caught in a crack on a curve and fell on 

both knees. Dr. Wong listed his impression as most likely either an impinging medial 

patellofemoral joint fat pad or a medial meniscal tear of the right knee. With regard to the left 

knee, he opined that appellant may have a similar problem, but not to the same extent. 

An October 12, 2011 MRI scan of the right knee was interpreted by Dr. Kevin Willis, a 

Board-certified radiologist. Dr. Willis found intact cruciate ligaments and menisci, but abnormal 

signal involving Hoffa’s fat pad with findings suggestive of patellar tracking abnormality/mild 

patellofemoral friction syndrome, associated small suprapatellar joint effusion. An MRI scan of 

the same date on the left knee was interpreted as showing minimal, compartmental degenerative 

change, predominantly involving thinning of the articular cartilage. Dr. Willis found no 

evidence of a meniscal tear in either knee and determined that the cruciate ligaments were intact. 

He noted that there was straining of Hoffa’s fat pad in the right knee medially with mild 

abnormal signal involving the lateral patellar facet and the lateral trochlear ridge. Dr. Willis 
3

noted that the findings can be seen in patellofemoral friction syndrome/patellar tracking 

abnormality, and that clinical correlation was recommended. 

In an October 13, 2011 report, Dr. Wong listed the diagnosis as symptomatic medial 

patellofemoral plica, right knee and left knee, more so on right. On December 12, 2011 he 

performed an arthroscopy of the left knee with excision of medial and lateral patellofemoral plica 

and excision of fat pad with the lateral retinacular release and an injection. 

Appellant continued to submit reports by Dr. Wong. In a February 26, 2012 report, 

Dr. Wong noted that he first saw her on October 6, 2011 for evaluation of her knee conditions. 

He discussed in detail appellant’s history of falling three months earlier at the employing 

establishment and his subsequent medical treatment of her. Dr. Wong diagnosed symptomatic 

patellofemoral plica and impinging fat pad bilaterally. He opined that the condition in both of 

appellant’s knees was caused and precipitated by her injury. Dr. Wong indicated that the 

medical reason for this opinion was that she had direct trauma to the anterior aspect of both 

knees, which occurred when she fell on both of her knees while at work. He noted that appellant 

required further physical therapy and strengthening to her left knee and does require surgical 

intervention due to the continued pain in her right knee. 

In a May 10, 2012 decision, the hearing representative remanded the case for further 

development of the medical evidence. 

On September 4, 2012 OWCP referred appellant to Dr. Kenneth P. Heist, a Boardcertified osteopath specializing in orthopedic surgery, for a second opinion. In a September 19, 

2012 report, Dr. Heist reviewed appellant’s employment history, medical records, and conducted 

a physical examination. He diagnosed her with status postoperative arthroscopic surgery on the 

left knee, excision fat pad, plica and lateral release (not work related) and sprained right knee, 

and aggravation of patella chondromalacia (preexisting). Dr. Heist noted that his examination 

revealed right knee tenderness with lateral patella motion and slight crepitation with acute 

flexion of the right knee. He opined that these positive findings are related to appellant’s 

preexisting condition of chondromalacia of the patella and not related to her July 8, 2011 fall. 

Dr. Heist opined that she temporarily aggravated her preexisting condition and that this has since 

resolved. He concluded that appellant subsequently had a lateral release performed to her left 

knee, but that this procedure was done for the preexisting condition of chondromalacia patella 

and not related to her work injury. 

By decision dated November 28, 2012, OWCP accepted appellant’s claim for sprain of 

the right knee (resolved as of September 24, 2012) and temporary aggravation of chondromalacia 

patellae of the right knee (resolved September 24, 2012). In a decision of the same date, it 

denied her claim for right knee surgical excision of plica and fat pad. 

On December 6, 2012 appellant, through counsel, requested a hearing. By letter dated 

March 22, 2013, counsel requested that the hearing be changed to a review of the written record. 

In a December 20, 2012 report, Dr. Wong noted that appellant came in for a follow-up on 

her knees. He noted that she continued to have pain and discomfort over the anterior aspect of 

the right knee and that she does have a little click and pop with the knee. Dr. Wong noted that 
4

appellant’s new MRI scan was interpreted by the radiologist as showing a strain pattern to the 

anterior cruciate ligament (ACL), but did not specifically evince that there was anything 

underneath the knee. However, he noted that, when he independently viewed the film, it evinced 

that she had a hypertrophic fat pad. Dr. Wong noted that appellant actually had some fluid with 

the fat pad and she does have a medial patellofemoral plica, which is what he believed had been 

injured when she fell directly on to her knee. He listed his impression as symptomatic medical 

patellofemoral plica and impinging fat pad of the right knee, which was exacerbated by a fall 

which occurred when she was at work. Dr. Wong noted that at this time he recommended that he 

arthroscope the knee, excise the fat pad, excise the plica, and address anything else in the knee. 

He noted that there may be a slight possibility she might have a very posterior root tear of the 

lateral meniscus. 

Appellant continued to submit progress reports by Dr. Wong. In an April 2, 2013 report, 

Dr. Wong noted that he reviewed the opinion of Dr. Heist and that he disagreed with his finding 

that appellant had preexisting chondromalacia. He noted that appellant was seen in the 

emergency room for a dislocated kneecap, which was relocated in the emergency room. 

Dr. Wong noted that she had gravel from the asphalt pulled from her knee during the emergency 

room visit. He explained that, if appellant did have preexisting chondromalacia, her injury 

which occurred from her fall at work exacerbated her chondromalacia. Dr. Wong noted that 

there was “no denying that she did sustain a dislocated patella during her injury and she had also 

injured her left knee at the same time.” He noted that appellant continued to have pain and 

discomfort to the knee and that he believed that it was appropriate that she undergo further 

surgical intervention to relieve the discomfort. Dr. Wong noted that she did undergo surgery to 

her left knee, which relieved her symptomatology. He further noted that appellant’s injury to her 

right knee seems to be more substantial and has not yet been treated. Dr. Wong therefore opined 

that Dr. Heist’s evaluation, although well respected, was inaccurate. 

By decision dated May 31, 2013, the hearing representative affirmed the November 28, 

2012 decision, finding that the weight of the medical evidence failed to support that appellant 

had “plica and/or fat pad in the right knee causally related to the accepted employment trauma 

and/or injury of July 8, 2011.” 

By letter dated August 22, 2013, appellant, through counsel, requested reconsideration. 

In support thereof, counsel submitted an August 14, 2013 report by Dr. Wong, wherein he noted 

that he continued to disagree with Dr. Heist. He noted that, prior to his first visit with appellant 

on October 6, 2011, she had a July 21, 2011 MRI scan done which was two weeks after the 

initial injury and that according to the radiologist, she had medial joint space narrowing and 

thinning of the underlying articular cartilage as well as chondromalacia of the patella. Dr. Wong 

noted that he reviewed the films and they showed that she had a high signal within the 

suprapatellar pouch and throughout the infrapatellar fat pad. He noted that he did not see any 

obvious meniscal lesion, although appellant did complain of pain over the medial joint. 

Dr. Wong noted that on that date she had impinging medial patellofemoral fat pad or a medial 

meniscal tear of the right knee. 

Dr. Wong also noted that a new MRI scan of the knee was obtained on October 12, 2011, 

and at that time, the radiologist read that appellant had minimal tricompartmental degenerative 

change predominantly involving thinning of the articular cartilage with no evidence of meniscal 
5

tear. He noted that she did have stranding of the Hoffa’s fat pad and medically and mild 

abnormal signal involving the lateral patellar facet and lateral trochlear ridge. Dr. Wong noted 

that findings could be seen with patellofemoral fraction syndrome and patellar tracking 

abnormality, which in his opinion was caused by the lateral dislocation of appellant’s patella due 

to the fall. He opined that at this time, the only option to relieve her pain and to resume normal 

activities of daily living would be to arthroscope the knee and excise the fat pad as well as the 

medial patellofemoral plica. 

Dr. Wong opined that it was within a reasonable degree of certainty that appellant’s 

trauma caused the damage to her knee including chondromalacia, which can be caused by direct 

trauma to the anterior aspect of the knee for the following reasons: she had no prior complaints 

of pain and discomfort to her knee; appellant did sustain direct trauma to the anterior aspect of 

her knee which resulted in a dislocation of the patella for which she was seen in the emergency 

room; she had continued pain and disability related to the injury despite conservative care; and 

that chondromalcia of the patella is most certainly related to direct trauma to the anterior aspect 

of the knee, which reflects an injury and trauma to the articular cartilage, which can be sustained 

with direct trauma as well as with lateral dislocation of the patella. He noted that she sustained 

intraarticular internal derangement of her knee as reported by MRI scan reports of July 21 and 

October 12, 2011. Dr. Wong opined that at the time he believed that appellant would 

significantly improve her functional status and decrease her pain with an arthroscopic procedure 

to her knee to excise the infrapatellar fat pad as well as the plica. He concluded by noting that 

although Dr. Heist’s opinions were respected that he completely disagreed with his findings. 

By decision dated October 31, 2013, OWCP denied modification of the decision. 

On November 22, 2013 appellant, through counsel, requested reconsideration. In support 

thereof, appellant submitted additional notes by Dr. Wong. These included a November 14, 

2013 note wherein Dr. Wong listed his impression as symptomatic medial patellofemoral plica, 

impingement of the fat pad, and chondromalacia. He noted that he did not believe that the 

chondromalacia was a preexisting condition, and believed that it was caused by a direct blow to 

the anterior aspect of the knee. Dr. Wong stated that the working diagnosis at this point should 

include chondromalacia as well as the symptomatic medial patellofemoral plica and 

impingement of the fat pad. He continued to recommend an arthroscope of the knee, 

chondroplasty of the patella, excision of the medial pattelofemoral plica, and excision of the 

infrapatellar fat pad. 

By decision dated February 19, 2014, OWCP denied modification of the earlier OWCP 

decisions, finding that the weight of the medical evidence still rested with the opinion of 

Dr. Heist. 

In a report dated April 28, 2014, written in response to OWCP’s decision dated 

February 19, 2014, Dr. Wong noted that he had conducted multiple extensive physical 

examinations of appellant’s knees starting on October 6, 2011. He discussed her history of 

injury, history of medical examinations, and quoted a textbook on orthopedic medicine with 

regard to patellofemoral pain syndrome and chondromalacia of the patella. Dr. Wong noted that, 

after the left knee arthroscopic surgical intervention, appellant’s left knee symptoms resolved 

and appellant has not had any complaints of pain. He noted that his impression as of March 20, 
6

2014 was that she had a symptomatic medial patellofemoral plica in the right knee due to a fall 

on the knee which occurred at work. Dr. Wong noted that he injected appellant’s knee. He 

wrote: 

“Please note that according to the above[-]reference[d] material that I have 

absolutely without a doubt diagnosed a medial patellofemoral plica when 

consideration of the patent’s history as well as multiple physical examinations by 

myself and multiple treatments modalities have been treated accordingly and 

appropriately. Dr. Heist’s evaluation however, which the report findings have 

based the denials have been based on a ‘wastebasket’ diagnosis provided by 

Dr. Heist. At this point, we have provided records of physical examination, MRI 

scan findings, subjective complaints from the patient, and a history of trauma to 

support my findings of a patellofemoral syndrome and impinging fat pad which 

require arthroscopic surgical resection of the plica. Dr. Heist’s findings, however, 

are unfounded and I would appreciate if further consideration would be made in 

this appeal for surgical treatment of [appellant’s] complaint of anterior knee pain 

due to symptomatic patellofemoral plica and impinging fat pad for which the 

patient had received similar treatment in her left knee due to an injury which 

occurred on the same day and due to the same mechanism and for which she has 

found significant relief due to the surgical intervention.” 

By letter dated June 16, 2014, counsel requested reconsideration again, this time from the 

decision dated February 19, 2014 

By decision dated August 18, 2014, OWCP denied modification of its prior decision. 

LEGAL PRECEDENT 

Section 8103(a) of FECA provides that the United States shall furnish to an employee 

who is injured while in the performance of duty the services, appliances, and supplies prescribed 

or recommend by a qualified physician that the Secretary of Labor considers likely to cure, give 

relief, reduce the degree or the period of any disability or aid in lessening the amount of any 

monthly compensation.2

 OWCP must therefore exercise discretion in determining whether the 

particular service, appliance or supply is likely to affect the purposes specified in FECA.3 The 

only limitation on OWCP’s authority is that of reasonableness.4

Section 8123(a) provides that, if there is disagreement between the physician making the 

examination for the United States and the physician of the employee, the Secretary shall appoint 

a third physician who shall make an examination.5

 The implementing regulations state that, if a 

conflict exists between the medical opinion of the employee’s physician and the medical opinion 

 2 Id. at § 8103(a). 

3 F.S., Docket No. 14-972 (issued October 15, 2014). 

4 Daniel J. Perea, 42 ECAB 214 (1999). 

5

 5 U.S.C. § 8123(a). 
7

of either a second opinion physician or an OWCP medical adviser, OWCP shall appoint a third 

physician to make an examination. This is called a referee examination and OWCP will select a 

physician who is qualified in the appropriate specialty and who has no prior connection with the 

case.6 

ANALYSIS 

On November 28, 2012 OWCP accepted that as a result of the July 8, 2011 employment 

injury, appellant suffered a sprain of the right knee (resolved as of September 24, 2012) and 

temporary aggravation of chondromalacia patellae, right knee (resolved September 24, 2012). 

However, it denied her requests for knee surgeries. OWCP determined that the record did not 

include a well-reasoned medical opinion explaining how the employment injury of July 8, 2011 

caused or aggravated appellant’s knee conditions and caused a need for surgical treatment. 

OWCP has determined that the weight of the medical evidence was represented by the 

report of Dr. Heist, the second opinion physician. Dr. Heist opined that appellant’s surgery on 

her left knee was for a preexisting condition of chondromalacia of the patella and was not related 

to her employment injury. He refers to an MRI scan report for the right knee dated July 8, 2011, 

which he alleged revealed evidence of preexisting chondromalacia of the patella. There is no 

MRI scan in the record dated July 8, 2011. An MRI scan of July 21, 2011 was interpreted by 

Dr. Prakash as evincing chondromalacia patella, but he did not indicate that this condition was 

preexisting. Dr. Prakash did note a patellar dislocation following a July 8, 2011 fall. 

Dr. Wong, appellant’s treating osteopath, strongly disagreed with Dr. Heist’s opinion and 

diagnosed medial patellofemoral plica, right knee, due to the fall at work. He provided a detailed 

description of appellant’s fall and noted that gravel was removed from appellant’s knee at the 

emergency room visit on the date of the injury. Dr. Wong noted that she sustained a dislocated 

patella during her injury and that she injured her left knee at the same time. He reviewed the 

MRI scans by Drs. Prakash and Willis. Dr. Wong noted that appellant sustained intraarticular 

internal derangement of her knee as reported by MRI scan reports of July 21 and 

October 12, 2011. In his December 20, 2012 report, he noted that her July 21, 2011 MRI scan 

was interpreted by the radiologist as showing a strain pattern to the anterior crucial ligament but 

did not specifically state that there was anything underneath the knee. Dr. Wong noted that, 

when he independently reviewed the film, it showed that appellant had a hypertrophic fat pad 

and that she had a medial patellofemoral plica, which he believed had been injured when she fell 

directly onto her knee. He opined that within a reasonable degree of medical certainty her fall 

caused the damage to her knee, including the chondromalacia, noting that appellant had no prior 

complaints of pain and discomfort in her knee, that she did sustain direct trauma to her knee 

which resulted in a dislocation of the patella, that appellant continued to be in pain despite 

conservative care, and that the chondromalacia of the patella was most certainly related to the 

direct trauma. Dr. Wong indicated that his diagnoses and opinion on causation were supported 

by multiple physical examinations, subjective complaints from appellant, and a history of 

trauma. He noted she had significant relief from her first surgery. 

 6

 20 C.F.R. § 10.321. 
8

The Board finds that due to an outstanding conflict in the medical opinion evidence 

between appellant’s physician, Dr. Wong, and the second opinion physician, Dr. Heist, regarding 

appellant’s need for bilateral knee surgery, the case must be referred to an impartial medical 

specialist to resolve the conflict, pursuant to 5 U.S.C. § 8123(a).7

 On remand, OWCP should 

refer appellant, along with the case file and the statement of accepted facts, to an appropriate 

impartial medical specialist for a determination with regard to appellant’s request for knee 

surgeries. After such further development as OWCP deems necessary, it should issue a de novo

decision regarding her claim. 

CONCLUSION 

The Board finds that this case is not in posture for decision with regard to appellant’s 

request for coverage for bilateral knee surgeries. 

ORDER 

IT IS HEREBY ORDERED THAT the August 18, 2014 decision of the Office of 

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

with this decision. 

Issued: October 6, 2015 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 7 See F.S., Docket No. 14-1657 (issued November 17, 2014).