United States Department of Labor

Employees’ Compensation Appeals Board

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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. 17-1775

Issued: June 7, 2018

Appearances: Case Submitted on the Record

Thomas R. Uliase, Esq., for the appellant1

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On August 16, 2017 appellant, through counsel, filed a timely appeal from an April 4, 2017 

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.

 

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.
2

ISSUE

The issue is whether OWCP abused its discretion by denying appellant’s request for 

bilateral knee surgeries. 

FACTUAL HISTORY

This case has previously been before the Board.

3

 The facts as set forth in the Board’s prior 

decision are incorporated herein by reference. The relevant facts are as follows.

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

injury claim (Form CA-1) 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 knee

and further undetermined injuries. Appellant did not report that she had stopped work.4

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). By decision of even date, it denied her

request for right knee surgical excision of plica and fat pad.5 

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

impingement of the medial patellofemoral joint plica or medial meniscal tear of the right knee. He 

also noted that she might have similar conditions of the left knee, but not to the same extent. On 

December 12, 2011 Dr. Wong 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. In a February 26, 2012 report, he diagnosed symptomatic patellofemoral plica and 

impinging fat pad literally. Dr. Wong opined that appellant’s bilateral knee conditions were

caused and precipitated by her employment injury. He 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. Dr. Wong noted that appellant required further 

physical therapy and strengthening of her left knee and required surgical intervention due to the 

continued pain in her right knee. 

On September 4, 2012 OWCP referred appellant to Dr. Kenneth P. Heist, a Board-certified 

osteopath specializing in orthopedic surgery, for a second opinion evaluation. In a September 19, 

 

3 Docket No. 15-0321 (issued October 6, 2015). 

4 OWCP initially denied appellant’s claim on October 3, 2011 as she had not established fact of injury. On 

October 12, 2011 appellant requested a hearing before an OWCP hearing representative. By decision dated May 10, 

2012, OWCP’s hearing representative found that the evidence of record established that the incident occurred as 

alleged. He remanded the case to OWCP for further development of the medical evidence to determine whether 

appellant sustained bilateral knee conditions causally related to the accepted employment incident. 

5 Appellant continued to submit additional medical evidence and requested further review of the denial of her 

request for surgical authorization. OWCP denied modification of its November 28, 2012 decision by decisions dated 

May 31 and October 31, 2013, and February 19 and August 18, 2014. 
3

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

conducted a physical examination. He opined that her only positive findings were related to her 

preexisting condition of right knee chondromalacia of the patella and were not related to her July 8, 

2011 fall. Dr. Heist opined that appellant temporarily aggravated her preexisting condition, which 

had since resolved. He concluded that appellant subsequently had a lateral release performed in 

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

patella and was not related to her work injury.

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

noted that he disagreed with Dr. Heist’s finding that appellant had preexisting chondromalacia, 

and that if she did, the injury at work aggravated the preexisting chondromalacia. He noted that 

appellant sustained a dislocated right patella during her injury and that she also injured her left 

knee at the same time. In an August 14, 2013 report, Dr. Wong noted his continued disagreement 

with Dr. Heist. He discussed a new magnetic resonance imaging scan and his treatment of 

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

injury caused the damage to her right knee including chondromalacia. He recommended that she

undergo right knee arthroscopy to excise the intrapatellar fat pad of the plica. 

On November 25, 2014 appellant appealed to the Board. By decision dated October 6, 

2015, the Board set aside the November 28, 2012 denial of authorization for surgery and remanded 

the case for further development of the medical evidence. The Board found that there was an 

outstanding conflict in the medical evidence between appellant’s physician, Dr. Wong, and the 

second opinion physician, Dr. Heist, regarding appellant’s need for bilateral knee surgery.6 

Appellant continued to submit treatment notes relating Dr. Wong’s treatment for 

symptomatic medial patellofemoral plica with impinging fat pad of the right knee on 

September 10, 2015. In a January 28, 2016 note, Dr. Wong indicated that on July 18, 2016 

appellant had undergone an arthroscopy of the right knee with excision of plica, excision of fat 

pad, and lateral retinacular release. 

On August 19, 2016 OWCP referred appellant to Dr. Stanley Askin, a Board-certified 

orthopedic surgeon, to resolve the conflict in medical opinion between Dr. Wong and Dr. Heist as 

to whether appellant’s bilateral knee surgeries should be authorized. In a September 9, 2016 

report, Dr. Askin reviewed appellant’s employment history, medical history, and history of injury. 

In response to OWCP’s questions regarding appellant’s right knee, Dr. Askin noted that there was 

no clinical evidence of a right knee partial ligament tear at the present time. Regarding temporary 

aggravations of chondromalaia patellae, he determined that he had no reason to doubt that 

appellant had some discomfort associated with the reported occurrence with such discomfort 

labeled as temporary aggravation, but that five years later, there was no clinical evidence of a 

continuing temporary aggravation. 

Dr. Askin opined that appellant’s bilateral knee surgeries had no causal nexus to the 

reported incident. He explained that the right knee surgery performed by Dr. Wong on January 28, 

2016 was not medically necessary. Regarding the right knee surgery, Dr. Askin explained that 

surgical treatment could be necessary if the patient would suffer some compromise in the absence 

 

6 Supra note 3. 
4

of treatment. However significant pause was necessary when considering arthroscopic knee 

treatment because it was not reconstructive, but rather only ablative treatment. Dr. Askin further 

explained that removing tissue was not therapeutic unless the tissue removed was the cause of 

symptoms. He opined that appellant’s right knee procedure left her no better off than if her 

condition had been left untreated. 

Dr. Askin also related that the December 12, 2011 left knee surgery was medically

unnecessary, noting that there was no condition identified for which surgery would provide relief. 

He noted that from a purely musculoskeletal basis, the manner in which appellant sought and 

received treatment for her knees was unexpected given the paucity of identified pathology within 

both of her knees. Dr. Askin explained that upon appellant’s initial presentation after the injury, 

there was no identified significant traumatic pathology identified. While he did not rule out all

imperfection, there were no findings of significance and no condition that required surgical 

intervention. Dr. Askin concluded that appellant had surgical treatments that did not address any 

condition or pathology caused by the July 8, 2011 incident.

By decision dated November 22, 2016, OWCP denied authorization for bilateral knee 

surgeries. It determined that the weight of the medical evidence was represented by the report of 

the impartial medical examiner, Dr. Askin. 

By letter received by OWCP on November 29, 2016, appellant, through counsel, requested 

a hearing. During the hearing held on March 2, 2017, counsel argued that the questions presented 

to Dr. Askin were unclear or in dispute. He contended that Dr. Askin’s report was not sufficiently 

well reasoned to carry the weight of the evidence. Counsel further contended that Dr. Askin spoke 

in generalities and did not explain the reasons for his conclusions.

By decision dated April 4, 2017, the hearing representative affirmed OWCP’s 

November 22, 2016 decision. He found that the weight of the medical evidence rested with the 

opinion of the impartial medical examiner, Dr. Askin.

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 

recommended 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.7 OWCP must therefore exercise discretion in determining whether the 

particular service, appliance or supply is likely to affect the purposes specified in FECA.8 The 

only limitation on OWCP’s authority is that of reasonableness.9

 

7 5 U.S.C. § 8103(a).

8 F.S., Docket No. 14-0972 (issued October 15, 2014).

9 Daniel J. Perea, 42 ECAB 214 (1999).
5

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.10 The implementing regulations state that, if a 

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

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.11 In situations where there exist opposing medical reports of virtually equal weight and 

rationale and the case is referred to an impartial medical specialist for the purpose of resolving the 

conflict, the opinion of such specialist, if sufficiently well rationalized and based upon a proper 

factual background, must be given special weight.12

ANALYSIS

The Board finds that OWCP did not abuse its discretion in denying appellant’s request for

authorization of bilateral knee surgeries.

OWCP accepted that, as a result of a fall while working for the employing establishment 

on July 11, 2011, appellant sustained a sprain of the right knee (resolved as of September 24, 2012) 

and a temporary aggravation of chondromalacia patellae of the right knee (resolved as of 

September 24, 2012). 

Appellant was treated by Dr. Wong. On December 12, 2011 Dr. Wong performed an 

arthroscopy of appellant’s left knee with excision of medial and lateral patellofemoral plica and 

excision of fat pad with the lateral retinacular release and an injection. On January 18, 2016 he

performed an arthroscopy of the right knee with excision of plica, excision of fat pad, and lateral 

retinacular release. Dr. Wong diagnosed symptomatic patellofemoral plica and impinging fat pad 

of bilateral knees. He opined that these conditions were caused by her employment injury. 

OWCP referred appellant to Dr. Heist for a second opinion. Dr. Heist diagnosed status 

postoperative arthroscopic surgery of the left knee, excision of fat pad, plica, and lateral release 

(not work related) and sprain right knee and aggravation of patella chondromalacia (preexisting). 

He concluded that appellant’s lateral release on her left knee was done to treat her preexisting 

condition of chondromalacia patella and was not related to her work injury. Dr. Heist explained 

that she had temporary aggravation of her preexisting right knee chondromalacia of the patella, 

but the condition had since resolved. 

The Board determined that a conflict existed in the medical opinion evidence which 

required referral to an impartial medical examiner. 

 

10 5 U.S.C. § 8123(a).

11 20 C.F.R. § 10.321.

12 V.B., Docket No. 16-1684 (issued December 8, 2017). 
6

In order to resolve the conflict between Dr. Wong and Dr. Heist, OWCP referred appellant 

to Dr. Askin for an impartial medical examination. In a September 9, 2016 report, Dr. Askin 

accurately reviewed appellant’s history of injury and her medical history. He noted that her knee 

complaints had not been satisfactorily addressed by Dr. Wong, and despite her surgeries, she had 

continuing complaints. With regard to these surgeries, Dr. Askin noted that significant pause was

necessary when considering arthroscopic knee surgery because such treatment was not 

reconstructive, but ablative. He opined that unless there was some assurance that the tissue 

removed was the cause of symptoms, such removal by excision or shaving was not therapeutic. 

Dr. Askin indicated that the surgery performed by Dr. Wong on January 28, 2016 did not produce 

better results than if her condition had been left untreated. Therefore, he concluded that the surgery 

was medically unnecessary. With regard to the December 12, 2011 left knee surgery, Dr. Askin

opined that appellant’s condition did not require surgery. As appellant never had any such 

imperfection in either knee, he concluded that this surgery was also medically unnecessary. 

Based on the evidence of record, the Board finds that OWCP did not abuse its discretion 

by denying appellant’s request for authorization of her bilateral knee surgeries. OWCP 

appropriately determined that the weight of the medical evidence was represented by the wellrationalized report of the impartial medical examiner, Dr. Askin.13

 The only limitation on 

OWCP’s authority in approving or disapproving service under FECA is one of reasonableness.14 

Dr. Askin clearly opined that the requested surgeries were not medically necessary for treatment 

of appellant’s accepted injury. OWCP, therefore, had sufficient evidence upon which it based its 

decision to deny the surgeries and did not abuse its discretion.

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 OWCP did not abuse its discretion by denying appellant’s requests 

for bilateral knee surgeries.

 

13 A.S., Docket No. 17-1088 (issued December 4, 2017).

14 Id.
7

ORDER

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

Programs dated April 4, 2017 is affirmed.

Issued: June 7, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board