CP# 98-028565 and 98-02864 (2002). DiFalco v. Summit Bank.

• Court: New Jersey

New Jersey Workers Compensation 2002. CP# 98-028565 and 98-02864 (2002). DiFalco v. Summit Bank CP# 98-28565, 98-2864 DiFalco v. Summit BankSTATE OF NEW JERSEY Department of Labor Division of Workers' Compensation Lebanon Regional District Claim Petition 98-028565 and 98-02864 Peggy DiFalco, Petitioner vs. Summit Bank, Respondent AMENDED DECISIONBefore: Honorable Elaine B. Goldsmith Judge of CompensationAppearances: Paglione and Massi, Esquires By: Michael R. Paglione, Esq. Attorney for PetitionerJoan B. Sherman, Esquire By: Thomas E. Miller, Esq. Attorney for RespondentThis 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...