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Maitland v. Home and Buildings Control

CASE NO. 4623 CRB-3-03-2



JANUARY 13, 2004











The claimant was represented by John J. D’Elia, Esq., Kennedy, Johnson, D’Elia & Gillooly, L.L.C., 545 Long Wharf Drive, New Haven, CT 06511.

The respondents were represented by Brian L. Smith, Esq., D’Attelo & Shields, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067.

This Petition for Review from the January 23, 2003 Finding and Award of the Commissioner acting for the Third District was heard August 29, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 23, 2003 Finding and Award of the Commissioner acting for the Third District. She argues on appeal that the trier of fact erred by failing to find that her continuing symptoms of fibromyalgia and depression were causally connected to a November 5, 2000 compensable aggravation of her underlying fibromyalgia condition. We find no error, and affirm the trial commissioner’s decision.

The trial commissioner found that the claimant began working for the respondent Home and Buildings Control in 1995. Her job entailed copying and distributing 34" x 22" engineering drawings, which were stored in file drawers. She was also required to work on a computer about four hours per day. In November 2000, the claimant commenced a project to reconstruct and reorganize the file drawers, which required the rearranging of approximately 3000 drawings. Each file folder contained about 60 drawings. In order for the claimant to pull the drawings from the drawers, she had to pull hard against a spring-loaded device before removing the prints.

On November 5, 2000, the claimant developed pain in her shoulders, elbows, hands and knees, which led her to cease working on the reorganizing project that day in favor of lighter duties. The following day, she called her supervisor, Mr. Villano, and informed him that she would not be coming to work due to physical pain. A co-worker completed the filing project, and the claimant returned to work a day later. However, the claimant again experienced pain in her arms when she attempted to pull files in order to make copies. She alleges that she was thereafter unable to complete a full week of work, until finally leaving her job on February 19, 2001. On that date, she had received a somewhat negative job performance evaluation, with which she disagreed.

The claimant contends she stopped working because of the pain in her arms, hands and knees. The trier specifically noted that she did not present any evidence of having obtained medical treatment between November 5, 2000 and March 15, 2001, other than a regularly scheduled November 28, 2000 psychiatric appointment with Dr. Rifkin. Dr. Rifkin noted that the claimant’s symptoms of pain and fatigue had recurred. The claimant explained that she had tried to treat her pain with aspirin during that four-month period. On March 15, 2001, she visited Dr. Eilbott’s office, where a physician’s assistant examined her and diagnosed arthralgia and depression. She was referred to Dr. McLean for a rheumatological examination that took place on April 3, 2001. Dr. McLean opined that the claimant probably had fibromyalgia. He prescribed Zanaflex for her in late August, and recommended physical therapy. On October 21, 2001, he again examined the claimant, and opined that her disability was due to her underlying fibromyalgic condition. On February 15, 2002, Dr. McLean indicated that she had been capable of doing non-physical work since December 19, 2001.

Dr. Powell, meanwhile, examined the claimant on September 19, 2001 on referral from Dr. Eilbott. She indicated that the claimant had been diagnosed with Lyme Disease, a disorder of the central nervous system, in 1990, and that she was currently suffering from fibromyalgia, joint pain and early degenerative joint disease of the knees. Dr. Hasbani saw the claimant at the respondents’ request on May 9, 2002. He thought the claimant had suffered from fibromyalgia rather than Lyme Disease during the 1990’s, and believed that this condition was temporarily aggravated by the claimant’s work activities of November 5, 2000. He opined that this aggravation had resolved by the time of his examination, with the claimant having returned to her pre-injury baseline chronic condition. He also diagnosed a substantial psychiatric component to her symptoms, and recommended referral to a psychiatrist. The claimant had been seeing Dr. Rifkin from 1993 until March 2001, when psychiatric treatment was taken over by Dr. Gallalee. She has been diagnosed with major depression, and Dr. Gallalee’s opinion is that her fibromyalgia has caused this depression, which has totally disabled her from work.

The trial commissioner concluded that the claimant suffered a temporary aggravation of her underlying fibromyalgia on November 5, 2000 as indicated by Dr. Hasbani, and that she returned to light duty work capacity as of December 19, 2001, as per Dr. McLean’s opinion. He accordingly awarded her total disability benefits from February 20, 2001 through December 19, 2001, and ordered the respondents to accept responsibility for this temporary aggravation of the claimant’s fibromyalgia. The claimant has appealed that decision to this board.

The claimant contends on appeal that the trier erred by failing to find that the claimant’s depression was compensable, pursuant to Dr. Gallalee’s February 21, 2002 report, in which he opined that her depression was precipitated by her fibromyalgia and inability to work, and that she remained totally disabled from working due to her fibromyalgia and depression. Claimant’s Exhibit D. As stated in her brief, “There is no countervailing evidence stated by the respondent to refute any of the opinions by Dr. Gallalee. . . . The fibromyalgia condition itself was deemed by [the commissioner] to be work-related and there is no reason for his failure and refusal to also consider the depression condition as part and parcel of the work-related injury.” Brief, pp. 9-10.

In a workers’ compensation case, the trial commissioner is the finder of fact, and is charged with determining the credibility of all evidence, including the testimony of lay and expert witnesses. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). This factfinding discretion allows the trier to rely on all, part or none of a doctor’s opinion, and the trier is not required to regard any particular statement as probative, even if it appears to be uncontradicted on its surface. Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (Dec. 17, 2003); Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 1592 CRB-5-92-12 (April 27, 1995). This board may not second-guess such determinations of credibility on appeal. If there is evidence in the record to support a trial commissioner’s finding, we must uphold that finding on review. Gagliardi v. Eagle Group Inc., 4496 CRB-2-02-2 (Feb. 27, 2003); Duddy, supra. Also, a trier is expected to include “only the ultimate relevant and material facts” in his findings, and should not add merely evidential facts, nor the reasons for his conclusions. Connecticut Administrative Regulation § 31-301-3; Fiorillo, supra; Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002).

The report of Dr. Gallalee ties the claimant’s depression to her fibromyalgia, but the trier was not required to give any particular weight to that report, which is not expressly mentioned in the findings. Moreover, in saying that the claimant’s fibromyalgia and her “subsequent inability to work and earn a living” precipitated her depression, Dr. Gallalee made no express distinction between the symptoms of fibromyalgia that predated her November 5, 2000 injury, and those that first manifested afterward. Claimant’s Exhibit D. With Dr. Hasbani having been of the opinion that the claimant’s 2000 injury was a temporary aggravation of a preexisting chronic illness that had since returned to its former level, and Dr. McLean having opined that the claimant was capable of light duty work as of December 2001, it would have been reasonable for the trier to conclude that any continuing symptoms of depression were not directly attributable to the November 2000 compensable injury, but rather to the underlying chronic condition itself. Thus, we disagree with the claimant’s contention that the factual findings and evidence legally require a finding that depression was an attendant effect of the compensable fibromyalgia condition.

As we find no error, the trial commissioner’s decision is accordingly affirmed.

Commissioners James J. Metro and Howard M. Belkin concur.

Workers’ Compensation Commission

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