NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3181-16T1
PATRICK MALONE,
Petitioner-Respondent,
v.
PENNSAUKEN BOARD OF EDUCATION,
Respondent-Appellant. ____________________________
Argued February 5, 2018 – Decided June 29, 2018
Before Judges O'Connor and DeAlmeida.
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2013-16505.
Adam M. Segal argued the cause for appellant (Capehart & Scatchard, PA, attorneys; John H. Geaney, of counsel; Adam M. Segal, on the brief).
Albert J. Talone argued the cause for respondent.
PER CURIAM
Appellant Pennsauken Board of Education (Board) appeals
from a Division of Worker's Compensation order awarding benefits to petitioner, Patrick Malone. Specifically, the Worker's
Compensation judge found a disabling condition Malone developed
in his knees was in part causally related to the duties he
performed while in the Board's employ. The Board contends the
judge's conclusions were: (1) not supported by objective medical
evidence, and (2) based upon an inadmissible net opinion given
by Malone's medical expert witness. For the reasons that
follow, we reverse.
I
The pertinent evidence adduced at the hearing was as
follows. In 2007, Malone commenced working for the Board as a
custodian in one of the schools in the school district. His
duties included sweeping the floors and stairwells, taking out
the trash, cleaning the blackboards and desktops, getting gum
and shoe marks off the floors, going up ladders when necessary
to change a light bulb or to replace a stained ceiling tile, and
cleaning the toilets, including the floors and walls around
them. During the summer break, he had to remove the furniture
and filing cabinets from each classroom and put them into the
hallway so the classrooms could be cleaned.
Malone indicated the job entailed "a lot" of kneeling,
stooping, and squatting, but he did not quantify how frequently
he put himself into any one of these positions. Before he
2 A-3181-16T1 worked for the Board, Malone worked for an entity from 1999 to
2007 for which he performed essentially the same custodial
tasks. Before that, he had held positions that also entailed
physical labor.
In 2012, the then fifty-five year old Malone began to
experience constant pain in both knees. It is not disputed the
pain was caused by osteoarthritis in his knees, a condition that
existed before he started to work for the Board, but did not
become symptomatic until 2012. Malone stopped working as a
result of the pain in his knees in November 2012 and did not
return to work until November 2013.
When conservative treatment failed, Malone had a right knee
replacement in February 2012 and a left knee replacement in
August 2012. He testified he still has constant pain in his
knees, which is aggravated by engaging in physical activities.
Malone called Ralph Cataldo, D.O., as his medical expert
witness. Cataldo is an anesthesiologist, with a subspecialty in
pain management. Before he testified, Cataldo reviewed the
operative reports pertaining to each knee replacement, an office
note authored by the orthopedist who performed the replacements,
and a transcript of Malone's trial testimony. Cataldo also
examined Malone. The only objective findings Cataldo discovered
3 A-3181-16T1 on physical examination were the surgical scars that resulted
from the knee replacements and some swelling about both knees.
As a result of reviewing the aforementioned documents and
examining Malone, Cataldo found Malone's condition was the
result of an aggravation of the osteoarthritis in each knee, and
that the aggravation was caused by Malone performing his work
duties for the Board. Cataldo reasoned that, because Malone's
osteoarthritis was asymptomatic when he began to work for the
Board, the tasks Malone performed for the Board had to have
aggravated the osteoarthritis, causing this condition to become
symptomatic.
Cataldo further stated that as a result of such
"occupational exposure," Malone eventually needed the
replacement of both knees and still remains impaired.
Specifically, Malone's condition will restrict him from bending,
kneeling, stooping, squatting, and climbing stairs. Cataldo
also claimed Malone has a seventy percent permanent disability
in each leg and that such disability was the result of working
for the Board from 2007 to 2012.
Cataldo also opined that, between November 2012 and
November 2013, Malone was unable to perform the essential
functions of his job and so was temporarily totally disabled
4 A-3181-16T1 during this time period. Cataldo conceded that osteoarthritis
can occur as part of the aging process.
The Board called Francis Meetere, M.D., who practices
family and occupational medicine, as its medical expert witness.
Like Cataldo, Meetere found Malone had osteoarthritis of the
knees by the time he began to work for the Board. Meetere
testified such condition is a chronic, progressive, degenerative
joint condition caused by the natural aging process. In his
opinion, the job tasks Malone performed for the Board did not
aggravate the osteoarthritis in Malone's knees and did not lead
to the need for the total knee replacements.
The Workers' Compensation judge accepted Cataldo's opinion
and rejected Meetere's. Although defendant argued Cataldo's
findings were not based upon objective medical evidence, the
judge found "the results of petitioner's physical examination
resulted in both objective and subjective findings. The Court
found this testimony to be credible."
Defendant also argued Cataldo's opinion was net. The court
rejected this argument, finding it was not unreasonable for
Cataldo to conclude that one performing "the job duties of a
school custodian, someone who's [sic] job duties entail a
substantial amount of lifting, bending, squatting and kneeling
5 A-3181-16T1 would suffer from an aggravation or exacerbation of pre-existing
osteoarthritis."
The judge also found Malone credible, and ultimately
concluded:
[w]hen called upon to make findings neither the Court or medical experts should ignore commonly known facts to wit: an extensive amount of bending, squatting, and lifting can cause increased discomfort in ones [sic] knees. The Court finds the testimony of Dr. Cataldo satisfies the burden of establishing a causal connection with probability that Petitioner's injuries were aggravated by his occupational duties.
In the instant case, I find that the Petitioner has satisfied his burden of demonstrating that his injuries were contributed to by conditions arising out of the course and scope of his employment. I find that the injuries sustained by the petitioner are due in a material degree to causes and conditions which are characteristic of a school custodian.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3181-16T1
PATRICK MALONE,
Petitioner-Respondent,
v.
PENNSAUKEN BOARD OF EDUCATION,
Respondent-Appellant. ____________________________
Argued February 5, 2018 – Decided June 29, 2018
Before Judges O'Connor and DeAlmeida.
On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2013-16505.
Adam M. Segal argued the cause for appellant (Capehart & Scatchard, PA, attorneys; John H. Geaney, of counsel; Adam M. Segal, on the brief).
Albert J. Talone argued the cause for respondent.
PER CURIAM
Appellant Pennsauken Board of Education (Board) appeals
from a Division of Worker's Compensation order awarding benefits to petitioner, Patrick Malone. Specifically, the Worker's
Compensation judge found a disabling condition Malone developed
in his knees was in part causally related to the duties he
performed while in the Board's employ. The Board contends the
judge's conclusions were: (1) not supported by objective medical
evidence, and (2) based upon an inadmissible net opinion given
by Malone's medical expert witness. For the reasons that
follow, we reverse.
I
The pertinent evidence adduced at the hearing was as
follows. In 2007, Malone commenced working for the Board as a
custodian in one of the schools in the school district. His
duties included sweeping the floors and stairwells, taking out
the trash, cleaning the blackboards and desktops, getting gum
and shoe marks off the floors, going up ladders when necessary
to change a light bulb or to replace a stained ceiling tile, and
cleaning the toilets, including the floors and walls around
them. During the summer break, he had to remove the furniture
and filing cabinets from each classroom and put them into the
hallway so the classrooms could be cleaned.
Malone indicated the job entailed "a lot" of kneeling,
stooping, and squatting, but he did not quantify how frequently
he put himself into any one of these positions. Before he
2 A-3181-16T1 worked for the Board, Malone worked for an entity from 1999 to
2007 for which he performed essentially the same custodial
tasks. Before that, he had held positions that also entailed
physical labor.
In 2012, the then fifty-five year old Malone began to
experience constant pain in both knees. It is not disputed the
pain was caused by osteoarthritis in his knees, a condition that
existed before he started to work for the Board, but did not
become symptomatic until 2012. Malone stopped working as a
result of the pain in his knees in November 2012 and did not
return to work until November 2013.
When conservative treatment failed, Malone had a right knee
replacement in February 2012 and a left knee replacement in
August 2012. He testified he still has constant pain in his
knees, which is aggravated by engaging in physical activities.
Malone called Ralph Cataldo, D.O., as his medical expert
witness. Cataldo is an anesthesiologist, with a subspecialty in
pain management. Before he testified, Cataldo reviewed the
operative reports pertaining to each knee replacement, an office
note authored by the orthopedist who performed the replacements,
and a transcript of Malone's trial testimony. Cataldo also
examined Malone. The only objective findings Cataldo discovered
3 A-3181-16T1 on physical examination were the surgical scars that resulted
from the knee replacements and some swelling about both knees.
As a result of reviewing the aforementioned documents and
examining Malone, Cataldo found Malone's condition was the
result of an aggravation of the osteoarthritis in each knee, and
that the aggravation was caused by Malone performing his work
duties for the Board. Cataldo reasoned that, because Malone's
osteoarthritis was asymptomatic when he began to work for the
Board, the tasks Malone performed for the Board had to have
aggravated the osteoarthritis, causing this condition to become
symptomatic.
Cataldo further stated that as a result of such
"occupational exposure," Malone eventually needed the
replacement of both knees and still remains impaired.
Specifically, Malone's condition will restrict him from bending,
kneeling, stooping, squatting, and climbing stairs. Cataldo
also claimed Malone has a seventy percent permanent disability
in each leg and that such disability was the result of working
for the Board from 2007 to 2012.
Cataldo also opined that, between November 2012 and
November 2013, Malone was unable to perform the essential
functions of his job and so was temporarily totally disabled
4 A-3181-16T1 during this time period. Cataldo conceded that osteoarthritis
can occur as part of the aging process.
The Board called Francis Meetere, M.D., who practices
family and occupational medicine, as its medical expert witness.
Like Cataldo, Meetere found Malone had osteoarthritis of the
knees by the time he began to work for the Board. Meetere
testified such condition is a chronic, progressive, degenerative
joint condition caused by the natural aging process. In his
opinion, the job tasks Malone performed for the Board did not
aggravate the osteoarthritis in Malone's knees and did not lead
to the need for the total knee replacements.
The Workers' Compensation judge accepted Cataldo's opinion
and rejected Meetere's. Although defendant argued Cataldo's
findings were not based upon objective medical evidence, the
judge found "the results of petitioner's physical examination
resulted in both objective and subjective findings. The Court
found this testimony to be credible."
Defendant also argued Cataldo's opinion was net. The court
rejected this argument, finding it was not unreasonable for
Cataldo to conclude that one performing "the job duties of a
school custodian, someone who's [sic] job duties entail a
substantial amount of lifting, bending, squatting and kneeling
5 A-3181-16T1 would suffer from an aggravation or exacerbation of pre-existing
osteoarthritis."
The judge also found Malone credible, and ultimately
concluded:
[w]hen called upon to make findings neither the Court or medical experts should ignore commonly known facts to wit: an extensive amount of bending, squatting, and lifting can cause increased discomfort in ones [sic] knees. The Court finds the testimony of Dr. Cataldo satisfies the burden of establishing a causal connection with probability that Petitioner's injuries were aggravated by his occupational duties.
In the instant case, I find that the Petitioner has satisfied his burden of demonstrating that his injuries were contributed to by conditions arising out of the course and scope of his employment. I find that the injuries sustained by the petitioner are due in a material degree to causes and conditions which are characteristic of a school custodian. The Court finds that the nightly occupational duties of mopping, sweeping, bending, and cleaning described by the petitioner establishes probable, circumstantial and presumptive proof that his pre-existing osteoarthritis was aggravated and exacerbated by his employment.
The judge awarded Malone fifty-five percent permanent
partial disability of both legs, due to an aggravation of
preexisting osteoarthritis and the total knee replacements, but
gave the Board a twenty percent credit for Malone's pre-existing
condition. She also awarded Malone temporary disability
6 A-3181-16T1 benefits for the approximately one-year period he was out of
work because of his knees. The net compensation amount awarded
to Malone was $109,214.33.
II
On appeal, the Board asserts the following for our
consideration:
POINT I: THERE WAS NO REASONABLE BASIS TO SUPPORT THE JUDGE OF COMPENSATION'S FINDING THAT PETITIONER'S KNEE CONDITION WAS CAUSALLY RELATED TO HIS OCCUPATIONAL EXPOSURE. THE ONLY EVIDENCE PRESENTED IN SUPPORT OF THE THEORY WAS THE TESTIMONY OF DR. CATALDO, WHICH SHOULD HAVE BEEN DISREGARDED BY THE TRIAL JUDGE AS A MATTER OF LAW.
A. DR. CATALDO RELIED ON NO OBJECTIVE MEDICAL OR SCIENTIFIC EVIDENCE TO SUPPORT HIS OPINION REGARDING CAUSATION, AND THUS THE TRIAL COURT SHOULD HAVE REJECTED HIS CONCLUSION.
B. DR. CATALDO'S OPINION AMOUNTS TO A "NET OPINION" AND SHOULD HAVE BEEN DISREGARDED BY THE TRIAL COURT AS A MATTER OF LAW.
We are mindful of our standard of review. Our function is
to determine "'whether the findings made could reasonably have
been reached on sufficient credible evidence present in the
record,' considering 'the proofs as a whole,' with due regard to
the opportunity of the one who heard the witnesses to judge of
their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599
7 A-3181-16T1 (1965) (citation omitted). However, compensation judges'
findings "must be supported by articulated reasons grounded in
the evidence." Lewicki v. New Jersey Art Foundry, 88 N.J. 75,
89-90 (1981).
This court need not uphold findings that are so "manifestly
unsupported by or inconsistent with competent relevant and
reasonably credible evidence as to offend the interests of
justice." Lindquist v. City of Jersey City Fire Dep't, 175 N.J.
244, 262 (2003) (quoting Perez v. Monmouth Cable Vision, 278
N.J. Super. 275, 282 (App. Div. 1994)). In such case, de novo
review is appropriate if the compensation judge's evaluation of
the underlying facts and inferences drawn therefrom "leave [this
court] with the definite conviction that the [compensation]
judge went so wide of the mark that a mistake must have been
made." Manzo v. Amalgamated Indus. Union Local 76B, 241 N.J.
Super. 604, 609 (App. Div. 1990) (quoting C.B. Snyder Realty,
Inc. v. BMW of N. Am., 233 N.J. Super. 65 (App. Div. 1989)).
The burden is on a petitioner to prove his case by a
preponderance of the evidence. Rivers v. Am. Radiator Standard
Sanitary Corp., 24 N.J. Misc. 223, 227 (1946). A petitioner
seeking worker's compensation benefits generally must prove both
legal and medical causation when those issues are contested.
Lindquist, 175 N.J. at 259. Medical causation means the
8 A-3181-16T1 disability is a consequence of work exposure. Ibid. Legal
causation requires proof the disability is work connected.
Kasper v. Board of Trustees of Teachers' Pension and Annuity
Fund, 164 N.J. 564, 591 (2000) (Coleman, J., concurring).
A subjective complaint of pain or discomfort by the
petitioner is not enough to satisfy the burden of proving the
existence of a work-related disability. Colon v. Coordinated
Transp., 141 N.J. 1, 9-10 (1995). A claimant must satisfy the
general principle of workers' compensation law requiring that
disability be established by appropriate objective evidence, and
that disability cannot be based solely upon a claimant's
subjective complaints of a present level of incapacity. Perez
v. Pantasote, Inc., 95 N.J. 105, 114-16 (1984). Therefore,
compensation cannot be justified when a medical witness merely
asserts a "reasonably probable contributory work connection," if
there is no medical support for such opinion. Laffey v. Jersey
City, 289 N.J. Super. 292, 306 (App. Div. 1996).
Here, there is no dispute Malone had osteoarthritis before
he began to work for the Board and that such condition began to
manifest symptoms in 2012 and ultimately necessitated bilateral
knee replacements. However, the judge concluded the job duties
Malone performed for the Board exacerbated his preexisting
osteoarthritis and caused his knees to become symptomatic. In
9 A-3181-16T1 our view, what is lacking is any medical evidence, objective or
otherwise, showing the performance of Malone's job duties
aggravated this preexisting condition and did so to the point
where Malone required knee replacements.
First, there was no evidence concerning how often and to
what extent Malone engaged in the various physical activities
about which he testified to perform his job duties. Simply to
identify the tasks he performed and that they entailed "a lot"
of kneeling, stooping, and squatting fails to impart any
reliable information about how arduous and physically demanding
Malone's job actually was.
The absence of any definitive evidence about how strenuous
Malone's job tasks actually were is significant, because Cataldo
relied upon Malone's testimony and the objective evidence to
arrive at his conclusion the tasks Malone performed for the
Board aggravated the preexisting osteoarthritis and caused this
condition to become symptomatic. There is in fact no evidence
about the amount of physical exertion Malone actually expended
while working for the Board.
Second, the only objective medical evidence Cataldo
identified were the surgical scar and the swelling he found
around each knee. Neither form of evidence indicates – and
10 A-3181-16T1 Cataldo did not explain – how Malone's job duties aggravated the
underlying osteoarthritic condition.
In the final analysis, the crux of Cataldo's opinion is
that, because Malone's knees were asymptomatic before but became
symptomatic after he began working for the Board, then his knee
condition must have been caused by the tasks he performed for
the Board. However, the record is devoid of the necessary
objective medical evidence to establish a causal connection
between Malone's bilateral knee condition and his work duties.
Because it was not supported by substantial credible evidence in
the record, we are compelled to reverse the judge of
compensation's decision. See Taylor, 158 N.J. at 657.
In light of our disposition, we need not reach the Board's
remaining contentions. See R. 2:11-3(e)(1)(E).
Reversed.
11 A-3181-16T1