CP# 98-28565, 98-2864 DiFalco v. Summit Bank
Department of Labor
Division of Workers’ Compensation
Lebanon Regional District
Claim Petition 98-028565 and 98-02864
Before: Honorable Elaine B. Goldsmith
Judge of Compensation
Appearances: Paglione & Massi, Esquires
By: Michael R. Paglione, Esq.
Attorney for Petitioner
Joan B. Sherman, Esquire
By: Thomas E. Miller, Esq.
Attorney for Respondent
This is the court’s decision in Claim Petition 98-28565 and 98-028645, Peggy Di Falco v. Summit Bank. Petitioner sustained two compensable accidents: the first on February 13, 1998, the second on March 23, 1998. The petitioner filed a Motion for Medical and Temporary Benefits, (“Motion”). After petitioner gave testimony on that motion, it was decided to stay that proceeding while an Application for the Second Injury Fund (“Application”) was filed.
The Application was denied on the grounds that the second accident was derivative of the first. The matter was returned to continue testimony on the Motion. At that juncture, the parties agreed to abandon the Motion and proceed directly to determine the nature and extent of the permanent disability.
Petitioner asserts entitlement to temporary disability benefits since February 1999 when payment was stopped because she missed an examination with respondent’s doctor because his office was too far away. That examination was rescheduled with another doctor who opined that she did not need treatment and that her problems were not related to her injury. On that basis temporary disability payments were not reinstated.
Mrs. DiFalco testified as to her employment with Summit Bank (“Bank”). Mrs. DiFalco was employed by the Bank for about eleven years and had served as supervisor of the mail room. She described the details of her duties for a considerable length of time. Pride in her job was apparent as she recalled that during the many years of employment she used so little sick time that unused time was returned every year. The petitioner described her job as not only executing paper work at her desk, but requiring considerable walking to other areas and installing computers that required getting down on her hands and knees.
On February 13, 1998, sitting in a chair with wheels she leaned forward to get something from a drawer, a wheel slipped and she fell forward to the floor on her hands and knees. She felt pain in the left side of her neck, the right knee cap area and down the leg. Due to her large size she had difficulty extricating herself from the chair. Once freed, she went to the ladies room where she stayed until the end of the day. After finally requesting medical care, she was sent to respondent’s doctor who advised her to stay at home and get physical therapy. Unwilling to miss work, Mrs. DiFalco continued to work and attend physical therapy treatments at the same time.
On March 23, 1998, while using the facilities in the ladies room at work, her right knee buckled and she fell, landing again on her knees and jarring her neck and hands. Able to regain a standing position she returned to her desk for the remainder of the day. Respondent sent her to Mercer-Bucks Orthopedic Group for treatment to her cervical and lumbar spine and right knee by Dr. Dukes. The medical records indicate that she was showing signs of depression. Told that she would probably need surgery on her right knee she sought a second opinion in June 1998 from Dr. Schottenfeld in Edison. He told her that most likely the surgery would be unsuccessful and that he did not treat depressed individuals. Cortisone injections in the right knee afforded her slight relief for a short time.
On June 23 she returned to work for a full day of work.. The next day she worked but stayed only an hour because she was in such pain. In July 1998, the Mercer-Bucks Group referred her for a psychiatric evaluation with Dr. Tuchin, whose office was more than one and a half hours away. Unable to travel the distance in a car, she missed the appointment. Respondent stopped payment of temporary disability benefits. Subsequently, on August 12, an appointment was scheduled with Dr. Chiapetta, who recommended treatment. Authorization for him to be the treating doctor was not granted until October, four months later.
In August 1998, respondent sent the petitioner to Dr. Jaffe for an independent medical evaluation for her right knee. He determined that she was not a good candidate for surgery because of her psychological condition but suggested that pain management might help. He thought she could return to work. She was sent to Dr. Giordano for a second opinion on her back. This doctor felt she had reached maximum benefit from conservative care and recommended she return to work with lifting restrictions of 20 pounds and avoidance of repetitive bending.
Although cut off from authorized treatment, petitioner continued treating with her private physician, Dr. Julio, and then Dr. Palmer, a physiatrist. On August 19,1998 when she was told to report back to work, she had a mental breakdown.
Petitioner recalled what she considered major factors leading to her breakdown. It began the day she was scheduled to return to work. She was advised by respondent to report to work at noon although she had expected to return in the morning, the mail room’s busiest time. Claiming that she was so overwhelmed by the sarcastic tone of respondent’s representative on the telephone and was so disturbed about the hour she was asked to report, she called Dr. Julio who referred her to a Dr. Mele, a psychiatrist. Petitioner treated with Dr. Mele until October 14, 1998 when she was authorized to treat with Dr. Chiapetta. Authorized treatment continued with Dr. Chiapetta for another six months, and was then withdrawn. Thereafter, petitioner continued to see the doctor every three weeks but her private health insurance paid for continued treatment. Petitioner also paid for her physical therapy sessions from her private health insurance.
In August 1998 petitioner was paid short term disability from the bank for six months until February 18, 1999, and was then approved for bank long term disability. Because it is taxable, she has chosen to accept only a minimum payment of $175 per month because, she says, she knows that there will be an offset. She is now on Social Security Disability receiving approximately $755 per month.
Petitioner is presently taking Welbutrin, Klonopin, Celebrex, Effexor, and Darvocet, BuSpar, Neurontin and HRT hormone replacement.
Petitioner has undergone a number of diagnostic tests. In April 17, 1998 an MRI of the right knee indicated questionable tear of the medial meniscus, lateral posterior subluxation of the patella and joint effusion. An MRI made March 13, 2000 of the left knee showed a Type II meniscal degeneration of the posterior horn of both medial and lateral menisci. An August 14, 1998 MRI of her lumbar area showed multi-level disc degeneration, facet arthropathy and central stenosis and herniations at L3-4, L4-5 and L5-S1. A MRI taken August 24,1998 depicting the lumbar spine indicated a bulging disc at L5-S1, osteoarthritis, and spinal stenosis at L3-4. The MRI of March 13, 2000 also of the lumbar spine region shows degenerative discs at L4-5 with a bulge more prominent than August 14 1998 adjacent to existing L5 nerve root sleeve. A CT Scan of the cervical spine showed degenerative changes. Finally, an August 14, 1998 EMG/NCV of the lower and upper extremities showed normal findings.
Mrs. DiFalco complains that she has headaches, pain and stiffness in her neck that goes down her shoulders into the spine, down the arms and into the hands. The pain also goes underneath the breast cage, down into the buttocks area, low back, hips on both sides, both legs. The ankles are both stiff, and she walks with a cane because the knees are buckling so badly that she is afraid that she will fall. In 1983 she developed back problems shoveling snow, for which she continued treatment with a chiropractor until 1997, about a year before the present accident. After the 1983 accident she had “excruciating low back pain all lower torso”. She denied having had any previous psychiatric treatment or any degenerative joint disease relative to her knees prior to the 1998 accidents. In 1995 she had diverticulitis and her gallbladder removed. In 1998 she had fibroid tumors but they were not removed. Surgery was recommended for her right knee but the problems with her left knee arose because of the way she has been walking since the accidents.
Petitioner has difficulty washing and dressing herself, is unable to do any of her household duties and has difficulty driving a car. Petitioner is able to sit, walk and stand comfortably for only about five minutes at a time, she has problems climbing stairs, sleeping, bending, lifting, kneeling, squatting, grasping, and pulling.
Without the treatment she is getting orthopedically from Dr. Palmer, she claims that she would be stiff as a board and not able to move at all. He has prescribed physical therapy and acquatic therapy. Without the treatment from Dr. Chiapetti she claims that she would “go out of her mind.”
Mrs. DiFalco has been treating with Dr. Michael Palmer, Board eligible in Physical Medicine and Rehabilitation, who specializes in fibromyalgia and myofascial pain. Dr. Palmer explained that Fibromyalgia is a syndrome that includes depression, inability to perform activities of daily living, and progressive chronic pain in multiple areas. There are 18 recognized trigger points, areas of muscles that can be chronically tight and tender but have no relationship to nerves and no specific relationship to joints. Dr. Palmer defined myofascial pain as a condition in which the muscles can tighten up and mechanically be altered to the point where the muscles do not function properly. These conditions can be caused by trauma or repetitive stress.
Dr. Palmer first saw the petitioner on January 29, 1999, almost a year after the accidents, on referral from Dr. Julio, her personal physician. She complained of pain all over her body and upon palpation he found the areas all “exquisitely tight to the touch” and took note of petitioner’s depression. In order to make a diagnosis of fibromyalgia, The American Rheumatological Association requires that there must be a finding of at least 11 trigger spots out of the 18. Dr. Palmer found that the petitioner was sensitive in all 18 spots in addition to her obvious depression. She responded well to the aquatic therapy and antidepressant medicine.
In April 1999 she had developed numbness and tingling in her hands particularly in the thumb and median nerve distribution. He taught her coping strategies for the pain and noted that her depression seemed to improve. By May 1999 the massage and aquatic therapy resulted in a general improvement in her range of motion, but she was still using a cane and did not have good control of her right knee. Dr. Palmer scheduled electrodiagnastic studies of both upper and lower extremities and the cervical paraspinal muscles along the neck and lower spine. These tests revealed no evidence of cervical or lumbar involvement with a nerve. The lack of findings from all of these tests indicated to this doctor a diagnosis of fibromyalgia and chronic myofacial pain because there was no other reason for her pain.
In Dr. Palmer’s opinion the only treatment is a combination of therapy and antidepressant medication. The patient is considered cured when he or she returns to normal activities of daily living. The only atrophy he could find was in Mrs. DiFalco’s right knee and both thumbs. In summation, Dr. Palmer stated,
“Her chronic myofacial pain that she has had from the time of the trauma that she sustained, has continued. This pain will inhibit muscle contraction, without muscle contraction you get shortening of the muscles and subsequently the muscles can’t do what they normally do. This leads to a cascade of overall de-conditioning”
Petitioner’s osteopathic and orthopedic expert, Dr. David Weiss, evaluated Mrs. DiFalco on December 7, 2000. At that time she had neck pain, low back pain and stiffness, numbness and tingling in both legs, bilateral knee pain and swelling, bilateral wrist pain and bilateral ankle pain that would come and go. She was unable to do the activities she recited in her testimony, claiming that her pain level on average, was “a 9 out of 10.” Dr. Weiss found that she could not walk separately on her heels and toes, had tenderness and spasm in the neck area with radicular complaints going down into each arm, and several positive trigger points. Range of motion forward and backwards was good but restricted in movement to the left and right sides. Range of motion in the wrists was normal, with tenderness over the palmar and dorsal surface from which the doctor opined carpal tunnel problems with both hands.
In the lumbar spine Dr. Weiss found restricted range of motion, some spasm, and tenderness. The right knee was “boggy”, consistent with degenerative joint disease. There was also tenderness and limited range of motion of the right knee, and tenderness was found in the ankle joint with multiple trigger points noted. Dr. Weiss’ diagnosis was first, post traumatic fibromyalgia, second, post traumatic chronic cervical strain and sprain, aggravation of the preexisting osteoarthritis in the cervical spine, cervical radiculitis, chronic bilateral tendonitis of both wrists, bilateral median nerve dysfunction, chronic post traumatic lumbosacral sprain and strain, bulging lumbar discs L3-4, L4-5 confirmed by the MRI’s, lumbar radiculitis, and preexisting disc disease in the lumbar spine.
Dr. Weiss estimated petitioner’s disabilities as 35% for each knee individually for post traumatic internal derangement to the right and left knees, aggravation of preexisting degenerative joint disease of both knees; 27.5% for the cervical spine, 47.5% for the lumbar spine; 30% of the hand for the right hand and 30% of the hand for the left hand. Dr. Weiss considers the petitioner to be a “four quadrant” case because her problems encompass all of her extremities in addition to her body. Dr. Weiss further opined that she suffered from fibromyalgia and was 100% disabled as a physiological unit.
Although petitioner had preexisting knee arthritis, degenerative joint disease in the knees and degenerative disc disease in her spine, petitioner was asymptomatic until the accidents. The doctor admitted the answers to the test for fibromyalgia are subjective because they are based upon the patient’s reaction to pressure on the trigger points. He agreed that the ankle testings were normal, the quadriceps testing showed a mild decrease in motion, and that he found no measurable atrophy in her arms or legs although, on a lady of such size, “it would be hard to start to discern muscle mass”.
Respondent’s orthopedic expert, Dr. Harold Fischer, examined Mrs. DiFalco on September 14, 2000. She complained that she hurt all over her body, had headaches on the right side and pain in her right ankle. She told Dr. Fischer that she is afraid of traffic, afraid of confronting former co-employees, and afraid to be left alone. She also stated that “my life is nothing to me”. Mrs. DiFalco cried throughout the examination and only stopped for short periods of time. This made her husband very nervous and he became very attentive helping her get up and down from the chair and on and off the examining table. She was able to bend her knees in the seated position only to 20 degrees out of 90 and it was painful to her. Straight leg raising was impossible since she would begin to complain of pain as soon as her heels were off the table. Tapping the knees resulted in knee reflexes and ankle jerks which were also mildly active. In a standing position the forward flexion was only 20 degrees, extension and lateral flexion were impossible. The doctor diagnosed a disability permanency of 5% of the right leg. In his opinion her complaints and physical findings were out of proportion even to a person with mildly damaged cartilages. Her symptoms and physical findings have become accentuated by her mental state. His review of the cervical MRI revealed that she has a mild cervical strain but no permanency of the cervical spine at this time.
Petitioner’s other complaints could be due to fibromyalgia or to her mental state as it progressed from the time of her accidents to her attempted return to work. Dr. Fischer stated that he had read about the syndrome in the medical literature. In his experience there are multiple complaints, with nothing to substantiate them. All tests come back negative. It is a way of making a diagnosis without specific evidence of pathology. As to her lower back, hips, knees, and ankles, these are weight bearing joints and the many years of her obesity have taken their toll. Considering the bulges or herniations in her back noted on the MRI, the doctor referred to a well known study published in the New England Journal of Medicine reporting a finding that over half of the asymptomatic people in the study were found to have bulges in their spines and over half of that group never had an injury or complaint. Based on this study, Dr. Fischer was not convinced that the tiny protrusions seen on Mrs. DiFalco’s MRI had any meaning. From her fall she might have developed low back sprain, but not multiple level pathology and disc degeneration. With her amount of obesity it would have been very hard to observe atrophy. Because the petitioner complained of constant pain and her husband kept telling the doctor to be careful, Dr. Fischer was unable to examine her to any extent and stated that “From a practical point of view, I thought it was inappropriate to try and do more than what I did.” In conclusion he estimated her disability at 5% of the right leg, that she may have had a mild cervical sprain that had left no permanency and the other complaints of the left knee, lower back and other areas were not causally related to her injuries. He concluded that her symptoms and physical findings were accentuated by her mental state.
Petitioner’s authorized treating psychiatrist, Dr. Carl J. Chiapetta testified over the telephone. When he saw her on August 12, 1998 for a psychiatric IME, he had the impression that she was suffering from an adjustment disorder of adult life, of a mixed type, predominantly with depressive symptoms, verging on a chronic phase, with probable developing chronic pain disorder having both physiologic and psychological components. At that time he did not see any preexisting mental health or neuromuscular disorders. Dr. Chiapetta thought that any psychiatric disability was causally related to the two accidents, but in his opinion the petitioner was able to work at that time and was motivated to return to work.
In October of 1998 the records show a severe worsening of her symptoms. This occurred when she was told that she was able to return to work. In a November 1998 report aggravating stresses are listed as (1) she had learned that her job position had been posted and was no longer available if she were to return to work, (2) she had not received any compensation from the workers’ compensation carrier, and (3) she had to seek medical consultation and physical therapy through her own private insurance. Petitioner was developing pain, dealing with her anger and depression over losing her job and having no income. At that juncture several psychotropic medications had been tried but none were found to be appropriate.
The first evaluation was probably an hour and a half, and after he became authorized to treat her he saw her once a week, gradually decreasing to once every two weeks and then once a month. His diagnosis and treatment was based upon review of the records, personal interview and conversation with the patient and her husband. When he first started treating Mrs. DiFalco, the doctor expected that she would be cured sufficiently to return to work within six months to a year. Based upon that assertion, in February 1999 respondent scheduled an examination with Dr. Tuchin.
Petitioner claims that she was unable to attend the examination because the doctor’s office was two hours away and she could not ride that long in the car. Because she did not attend the examination, respondent stopped paying her temporary disability benefits. The appointment was rescheduled with Dr. Hall on April 1, 1999. Dr. Hall opined that she did not need treatment and that her problems were not related to her injury. On that basis temporary disability payments were not reinstated and authorization for Dr. Chiapetta was withdrawn.
Petitioner continued treating with Dr. Chiapetta through her private health insurance. Over time the doctor has come to a different opinion about her capabilities regarding work. In May 1999 he wrote a report stating that he thought the treatment was curative. However, on her last visit to him on February 11, 2000, he indicated that her “treatment was no longer of a curative nature...she’s permanently unable to resume any type of meaningful work, and she will require further outpatient maintenance, psychiatric treatment, for an indefinite period.” She is totally disabled as a combination of her physical and psychological conditions.
Dr. Chiapetta came to that conclusion based upon three factors. The first was the completion of a number of different types of treatment with medications over the past two years, psychotherapeutic approaches with no major improvement regardless of the treatments, and his “feeling” that there probably were not going to be any more changes. Further treatment would consist of maintenance medication monitoring and supportive therapy. The second factor was correspondence from Dr. Palmer in January 2002, stating that he felt there was little more he could offer toward her improvement, and “there was a direct correlation between the treatment of the neurovascular problems, the fibromyalgia and her psychiatric condition.” The third factor was the fact that over two years had elapsed from the time of the accidents, and his experience told him it was time to “call it quits with the curative part and say that from this point on we’re going to have to try to just maintain her.”
Dr.Chiapetta opines that withdrawal of the supportive psychotherapy and psychotropic medication monitoring would result in her deterioration to the point of possibly needing inpatient hospitalization, or she might sit around the house and become totally dysfunctional. Having entertained ideas of suicide in the past, it is always possible that these impulses might return without the medication. As for the future, he thought it was highly unlikely that she would lose weight for a number of reasons. As a whole, he had no reason to doubt her credibility based upon anything she told him throughout the course of the treatment sessions. Although he admitted that he was not perfect, he could find no secondary gain demonstrated in this case. He noted that to his knowledge she had no prior experience with litigation and that she was financially better off working. His final diagnosis was major chronic depression, of a moderate to severe degree, with chronic pain disorder having both physiologic and psychological components. Her related medical problems would make fibromyalgia part of the diagnostic consideration.
Dr. Richard D. Rubin, Board Certified in Psychiatry and Neurology, testified as petitioner’s psychiatric and neuropsychiatric expert. On October 3, 2000 his examination consisted of an interview, a mental status evaluation and a neurological evaluation. He noted several times in his testimony that he would have liked to see the results of some of her MRI’s and EMG’s but, despite his requests, they had not been provided for his review. During the examination, Mrs. DiFalco told of the onset of intolerable pain especially following the second incident which caused her to be withdrawn because of chronic pain impairing her ability to go places and do things, and forcing her to consult doctors. She was tearful as she described her inability to cope with daily living. The doctor’s impression was that her whole consciousness was permeated with a preoccupation with physical pains and fears of injury from even moderate exertion. He found no neurological impairments although he was unable to do a straight leg raising because her back was so stiff. Her response to the pin prick over the lateral aspect of the right thigh and right calf led him to conclude that there was sciatic radiculopathy. In conclusion he listed all his diagnosis, the non related ones include her obesity, high blood pressure, history of low back injury in 1972, for which she received chiropractic care, GYN problems for which she was taking hormone replacement therapy. Her causally related problems consisted of sciatic radiculopathy for which he estimated 17.5% of total and 47.5% neuropsychiatric impairment for an adjustment disorder with mixed emotional features with a credit of 12.5% for preexisting problems. Dr. Rubin explained that the credit was given for her obesity problems because people with at least a 100% overweight problem are always suffering from some unconscious emotional problems which they try to resolve by overeating. He reached that estimate by use of the AMA guidelines for persons in psychiatric treatment who are taking psychiatric medications. He opined that she had a psychological impairment before the accidents but it rose to the level of a disability after she fell. He thought that in this case, the trauma of the accidents “ignited an inflammatory disease which is one of a variety of inflammatory diseases.” He then went on to mention a number of possibilities, not previously mentioned in connection with Mrs. DiFalco.
Considering all of her health problems, he took a dim view that she could be rehabilitated back into the workforce. According to Dr. Rubin, his diagnosis was exactly like Dr. Chiapetta’s except that the former used less categories for description purposes. There was no doubt in Dr. Rubin’s mind that her disabilities were causally related to her two accidents.
Respondent’s psychiatric expert was Dr. Walden Holl, Board Certified in Psychiatry and Neurology. After examining petitioner he found her to be suffering from a chronic personality disorder which was characterized by hysteria, disorganized thinking, anxiety and depression. The doctor also thought her major problems were related to her mother’s death and her husband’s health as well as her own physical problems. As an estimate for the psychiatric problems relating to the accidents, he estimated a 2.5% disability but opined that her overall psychiatric disability was much higher, although he would not estimate the extent of the greater disability. In Dr. Holl’s opinion she did not need further treatment because he did not think that relative to her physical disabilities, they were sufficiently intense to require any psychiatric intervention.
Dr. Holl further stated that from a psychiatric viewpoint she could return to work. Dr. Holl agreed with Dr. Rubin and Dr. Chiapetta that she suffered from an adjustment disorder and mixed-type depressive symptoms approaching a chronic phase. However, Dr. Holl felt that the reason Mrs. DiFalco was not getting better was because she was being treated for the relationship to the accident rather than for her other unrelated problems. Dr. Holl refused to give his opinion on whether the combination of petitioner’s physical condition and her mental condition rendered her unable to work. As is often the case, the doctor had no recollection of the interview with the petitioner. He explained that there is a differentiation between “chronic depression” which is a depression someone has for a long time related to things buried rather deeply in their unconscious, and may take a lot of work to understand, and “reactive depression” where the cause of the depression is fairly obvious. To illustrate the latter, he mentioned petitioner’s mother’s death and her husband’s health problems. The aspect of hysteria was mentioned, having to do with “people who manifest unconscious conflicts by physical symptoms. The symptoms can be pain, blindness or paralysis, but they are a symbolic manifestation of something that is important to the person and unique to the individual.” The doctor clarified his statement by saying that her depression from work was only 2.5% but the hysteria was not associated with the accident. “It is the way her conflict is manifested.” The doctor is not saying that she cannot return to work because of her underlying hysteria, but because of some underlying meaning that going back to work has for her.
After studying the entire range of evidence presented, the testimony of all of the witnesses, the documentary evidence, I conclude that the petitioner is 100% disabled as the result of the combination of her orthopedic and psychiatric disabilities and the fibromylagia sysndrome with myofascial pain.
I have listened to the petitioner and found her to be sincere in her belief that she is completely disabled. However, I find this a most complex set of facts. This woman who obviously loved her work, had been working for the respondent for almost eleven years, missing few days of work for illness. She had an accident which in and of itself is not life threatening. As a result of the fall with the chair and possibly because of her weight behind the fall, she tore the medial meniscus in her right knee, jarred her wrists and her neck. This fall did not keep her from continuing her daily routine at work. It is not until the second fall that she became incapacitated, first orthopedically and then psychologically.
The parties agree that on February 13, 1998, when petitioner fell she landed on her knees, jarring her hands and neck. In the second accident the same body parts were injured. As to her knees, the April 1998 MRI of the right knee showed questionable tear of the medial meniscus, lateral posterior subluxation of the patella and joint effusion. A March 2000 MRI of the left knee showed Type II meniscal degeneration of the posterior horn of both medial and lateral menisci. Dr. Schottenfeld and Dr. Jaffee agree that she needs an operation on her right knee but, considering her weight, there was little expectation that the surgery would be successful.
Dr. Weiss found the condition in her right knee consistent with degenerative joint disease. The degeneration found in both knees obviously developed over a period of years and was not as a result of the two accidents. Nonetheless, Mrs. DiFalco was coming to work every day and, by her testimony, was often required to crawl around on her hands and knees to install computers. I take this to mean that her knees were functioning satisfactorily. However, the impact of the knees against the floor tore the medial meniscus in the right leg. Dr. Fischer was unable to get petitioner to bend both knees more than a few degrees without her emitting complaints of pain, but he still estimated a disability for her right leg.
As a consequence of avoiding use of the right leg she has aggravated the left knee which may have been impacted during the two accidents. Although it is obvious that petitioner had preexisting conditions in her knees, in order to receive credit, it is respondent’s burden to provide and estimate of the value of that pre-existing condition. Having failed to meet that burden, I do not feel required to factor in that credit.
Reference to the possible disability in petitioner’s hands and wrists is sparse in any report. Dr. Weiss is the only one who focuses upon them specifically, reporting that petitioner admitted that the pain to her hands and wrists “comes and goes.” He concluded carpal tunnel problems based upon tenderness over the palmar and dorsal surfaces of each hand for which he estimated 30% for each hand. I am not satisfied that petitioner’s complaints of intermittent pain and the doctor’s findings are based upon sufficient objective medical evidence to justify or explain his estimate of disability. On a strictly orthopedic basis, I find that petitioner has failed to sustain the burden of proof of disability for either hands or wrists.
Mrs. DiFalco testified that during both work incidents she jarred her neck and possibly her back when she fell. Respondent sent her for physical therapy to her cervical and lumbar spine. The records do not indicate further treatment for those areas nor referral for a second opinion to a doctor outside of the Mercer-Bucks Orthopedic Group. Concerning her neck, there is evidence of a CT Scan of the cervical spine than showed only degenerative changes. Dr. Weiss found tenderness and spasms in her neck with radicular complaints going down each arm, Dr. Fischer noted that he reviewed a cervical MRI which showed that she had a cervical sprain with no permanency. Unable to perform an adequate examination of the petitioner because of her constant complaints of pain, he commented that her symptoms and physical findings had become accentuated by her mental state. Although not an expert on the subject, and at a loss for any other explanation of her multiple problems, he thought that she might be suffering from fibromyalgia. He concluded that she had a mild cervical sprain with no permanency.
This leaves me with both doctors agreeing that there was a cervical sprain, one of whom finds radiculopathy down both arms based upon petitioner’s complaints only and the other suggesting that these pains could be fibromyalgia. An EMG study of petitioner’s arms and legs resulting in normal findings strongly suggests fibromyalgia.
Continuing on to consider petitioner’s lumbar complaints, in evidence were a number of diagnostic tests taken of petitioner’s cervical and lumbar spine between 1998 and 2000. Most of these MRI’s show multi-level disc degeneration, central stenosis osteoarthritis, and bulging discs at L3-4, L4-5, L5-S1. While there is no doubt that all of her osteoarthritis and disc degeneration developed over a series of years, the three bulges could have been caused by the two falls. However, in 1983 petitioner did develop back problems from which she suffered “excruciating low back pain in the lower torso”, initially receiving regular active treatment from a chiropractor that leveled off through the years to infrequent visits. Petitioner claimed the last treatment was in 1997, a year before the Summit Bank accidents. Although Dr. Weiss has estimated a high percentage of disability, he was unable to do much with her during the examination because she was so stiff and painful. Also, he did not take into account petitioner’s previous accident and the degenerative condition of the lumbar spine. For his part, Dr Fischer was not convinced that the tiny protrusions seen on Mrs. DiFalco’s MRI had any meaning. His analysis of petitioner’s lumbar disability is more reasonable than Dr. Weiss’.
Considering all of the elements of the two incidents she could have developed lower back sprain but certainly not multiple level pathology and disc degeneration. This pathology and disc degeneration could have been caused by her 1983 back problems, could have been a natural consequence of her age and weight, or , caused by the two 1998 falls. Looking at the facts I am more convinced that petitioner had the bulges before her two compensable accidents although they might have been asymptomatic. Regardless of the initial cause, I find that her lumbar spine condition has been aggravated by the two compensable accidents.
Shortly after the second accident in March 1998, petitioner exhibited noticeable signs of depression. By June it became so obvious, that when she went to consult with Dr. Schottenfeld about her right knee, he told her that he would not treat her because he did not treat depressed individuals. On August 12, 1998, she underwent a psychiatric evaluation by Dr. Chiapetta and was told that she needed treatment. The combination of the four month delay for authorization of treatment by this doctor, together with instructions to return to work, and being distraught about the hour she was told to report to the workplace, proved to be beyond her ability to cope with and she had a nervous breakdown.
Treating her since October 1998, Dr. Chiapetta was initially of the opinion that he could help the petitioner with discussion and medication. Starting February 2000 he states that curative treatment is no longer possible, she should be placed on a medication monitoring schedule and that she is permanently unable to return to work. He bases his diagnosis on review of the records, personal interviews and conversations with the patient and her husband.
Dr. Rubin, petitioner’s psychiatric expert agrees with Dr. Chiapetta after examining Mrs. DiFalco and listening to her complaints of chronic intolerable pain, her inability to cope with daily living, and finding her consciousness permeated with a preoccupation with physical pain and fear of injury from even moderate exercise. Concluding that she suffered from the neuropsychiatric impairment of an adjustment order with mixed emotional features, he nonetheless estimated that her obesity was indicative of underlying emotional problems. Interestingly enough, although Dr. Holl agreed that petitioner was suffering from psychiatric disability causally related to her two 1998 accidents, he disagreed with the two other psychiatrists that her major emotional problems were related to her mother’s death and her husband’s health problems, her chronic personality disorder characterized by hysteria, her disorganized thinking, anxieties and depression and believed that the reason she was not getting better was because they were not treating her for her real problem. Dr. Holl also opined that the petitioner is psychologically capable of returning to work but he would not venture a guess as to whether, given the combination of her physical and psychiatric problems, she could return to work.
All of these opinions leave me with a treating physician who has come to the conclusion that his patient is beyond the point where she can be cured and past the point where she can return to a normal life style or return to work. The case law is replete with opinions that give utmost credibility to the recommendations and opinions of the doctor who has followed the petitioner from the beginning of the injury. I have no reason to conclude that Dr. Chiapetta has provided petitioner with anything but the best treatment and would like to cure her. Whether he was not treating her for the right part of her problem as suggested by Dr. Holl is an unknown. When a doctor follows a path of treatment that does not work it is easy to say that the other path should have been taken. Unfortunately we do not know which doctor is correct. At this juncture, we are left with the petitioner who is depressed, full of anxiety, fear, and unknown psychiatric difficulties that are beyond the point of cure. Dr. Holl does agree that petitioner has a psychiatric disability causally related to her 1998 accidents, I find that petitioner has a 47.5 % permanent partial psychiatric disability and that respondent is entitled to a credit of psychiatric disability for major chronic depression of a moderate to severe degree, with chronic disorder having both physiologic and psychological components.
I have considered the report of Dr. Rubin in which he estimates neurological disability. I am not convinced that these findings have a sufficient basis on which to base an estimate of disability.
Most of the doctors have agreed that petitioner is 100% disabled. Petitioner is being treated by Dr. Palmer, a physiatrist, who specializes in fibromyalgia and myofascial pain. Respondent claims that there is no objective medical evidence to support such a claim. In order to find disability in this court, there must be a finding of sufficient objective medical evidence to sustain the finding.
The syndromes of fibromyalgia and myofascial pain are based on a lack of objective findings combined with psychological disabilities, including depression. Dr. Palmer explained that fibromyalgia is recognized by the American Medical Association and the American Rheumatological Association (ARA) as discussed above. The diagnosis is based upon parts of the body named “trigger points,” of which there are 18 areas of the muscles that can be chronically tight and tender but have no relationship to nerves and no specific relationship to joints. Myofacial pain is defined as a condition in which the muscles can tighten up and mechanically be altered to the point where the muscles do not function properly. These conditions can be caused by trauma or repetitive stress. Fibromyalgia is diagnosed by the process of elimination. Myofascial pain usually accompanies fibromyalgia. Dr. Palmer ordered EMG tests of all extremities which returned normal findings. Further testing indicated lack of findings of cervical or lumbar involvement with a nerve. It therefore follows that a lack of findings from all of these tests leave the doctor with the diagnosis of fibromyalgia because there was no other reason for her pain. The pain permeates Mrs. Di Falco’s entire body, from her head to her toes. Dr. Weiss agreed that she had fibromyalgia because he could find nothing wrong with parts of her body where she complained of feeling great pain and stiffness. This syndrome was recognized by Dr. Fischer, having read about it in the medical literature and experienced it in his own practice. It is what is called an exclusionary diagnosis, a generic diagnosis. Where there are multiple complaints nothing can be found to substantiate them and the tests come back negative. As noted earlier in this opinion, it is a way of making a diagnosis without specific evidence of pathology. Dr. Fischer was of the opinion that it was entirely possible that petitioner suffered from fibromyalgia as she progressed from the date of her accidents to her attempted return to work. Dr. Chiapetta agreed that Mrs. DiFalco’s related medical problems would make fibromyalgia part of the diagnostic consideration.. Dr. Holl did not address the issue. N.J.S.A.34:15-36 states as follows:
“Disability permanent in quality and partial in character” means a permanent impairment caused by a compensable accident. . . ., based upon objective demonstrable medical evidence , which restricts the function of the body or of its members or organs; included in the criteria which shall be considered shall be whether there has been a lessening to a material degree of an employee’s working ability...”
“Disability permanent in quality and total in character” means a physical or neuropsychiatric total permanent impairment caused by a compensable accident . . . where no fundamental or marked improvement in such condition can be reasonably expected”
There is no question that petitioner is totally and permanently disabled. Her treating psychiatrist has testified that further treatment is useless and recommend that petitioner be placed on a monitoring regime to regulate her medicine only. Petitioner’s orthopedic expert finds her 100% disabled and her psychiatric expert agrees. When I heard her testify and watched her move around the courtroom during other court sessions, I noted that she moved stiffly, awkwardly, and appeared quite depressed. It was my impression that this was her true demeanor and I found her credible. Listening to her describe her job left no doubt in my mind that she loved every day of her work and that being unable to return was quite devastating to her.
I must now decide whether I can recognize the syndrome of Fibromyalgia. The statute requires that I must find objective medical evidence before I can consider that the petitioner is disabled. In contrast, I am faced with a syndrome that is composed of subjective complaints from the party asserting the problem and the fact that it is only recognizable when all diagnostic tests have failed to show anything tangible or treatable, a catchall syndrome for lack of any other known malady. Yet, it is recognized by the American Medical Association, The American Rheumatologica Association and the medical literature prints articles about it. I can only liken this problem to the difficulty of proving objective medical evidence by the psychologist or psychiatrist who cannot merely “parrot” the patient’s statement. Saunderline v. E.I. DiPont & Co. 102 N.J. 402 (1986). In order to prove the diagnosis for Fibromyalgia the physician is supposed to be astute enough to know where the essential trigger points are located whether the patient is being truthful when the trigger points are palpated. The doctor should be able to distinguish between the malingerer, the embellisher and the honestly ill patient. I am satisfied that the doctors in this matter agree that petitioner truly suffers with pain all over her body and depression. Dr. Holl disagrees only as to the direction of the treatment.
In Larson’s Workers’ Compensation Law, Section 46.03d., it is reported that the existence of Fibromyalgia and myofascial pain have been recognized in Norris v. Drexel Heritage Furnishings, Inc. 534 S.E.2d (N.C. Ct. of Appeals 2000), where the Commission recognized the existence of fibromyalgia and the fact that it could have been the cause of petitioner’s disability. In Young v. Hickory Business Furniture, 353 N.C. 227, 538 S.E.2d.(2000) the medical expert attributed the syndrome to the workplace accident. In reaching it’s decision the court weighed this testimony against three other possibilities for petitioner’s disability.
I find that in reaching the diagnosis of fibromyalgia , the doctor must depend upon the subjective complaints and reactions of the petitioner, but there are sufficient other checks and balances that can be used during the examination to assist in the determination of the truthfulness of the responses. I know that in order to arrive at the diagnosis, the doctor must first subject the patient to diagnostic tests to eliminate all known possibilities causing the pain. I find that these checks and balances are sufficient to satisfy the requirement that the doctor is not merely “parroting” the patient’s statement but has used other outside methods to challenge the information provided by the petitioner.
I appreciate that medicine does not have all the answers to our physical or psychological problems. Petitioner is in that grey area composed of her physical and psychiatric problems which have debilitated her to the point that she is unable to perform the tasks of daily living and cannot return to work. Treating doctors and medical evaluators for both sides agree that she is 100% disabled.
When an individual is 100% totally disabled as a result of orthopedic, psychiatric and fibromyalgia, it is difficult to become involved in a numbers game of estimating a separate percentage of disability for each part. Petitioner had no prior record of disability or treatment other than her 1983 snow shoveling incident, that would relate to the findings resulting from this accident and that flow as a natural consequence from her treatments relating to the 1998 accidents. The case law is replete with opinions that the employer takes the employee as he finds him or her. They hired this lady who had an obvious weight problem throughout her 11 years as their employee. They cannot now claim that they are not responsible for the problems that have arisen as a consequence of that obesity.
I find petitioner to be totally disabled as a combination of her orthopedic, psychiatric disabilities and the fibromyalgia syndrome with myofascial pain. I find that all of her disabilities are causally related to her 1998 accidents.
I also find that petition’s total disability commenced February 11, 2000, when Dr. Chiapetta decided that “treatment was no longer of a curative nature”, and that she was totally disabled as a combination of her physical and psychological conditions. Until that date, petitioner’s treatments were reasonable and necessary, directed toward returning her to the workplace. Therefore, petitioner is entitled to temporary disability benefits from February 1999 through February 11, 2000.
Since I find petitioner to be totally disabled as a result of the 1998 accidents, the Second Injury Fund Application is dismissed.
Counsel for petitioner will draft a long form order setting forth the award.
Date: _____________ ___________________________
By: Hon. Elaine B. Goldsmith, J.W.C.