Malone v. Pennsauken Board of Education, No. A-3181-16T1, 2018 N.J. Super. Unpub. LEXIS 1559 (App. Div. June 29, 2018)

Client: Pennsauken Board of Education

Appeal argued by: Adam M. Segal, Esq. 

**Results may vary depending on your particular facts and legal circumstances**

In Malone v. Pennsauken Board of Education, A-3181-16T1 (App Div June 29, 2018), the Superior Court of New Jersey Appellate Division reversed the decision of a workers’ compensation judge finding compensability in an occupational exposure case.

Patrick Malone started working for the Pennsauken Board of Education in 2007 as a custodian. At trial he testified that he would sweep floors, take out the trash, clean the blackboards and desktops, remove gum and shoe marks from floors and clean toilets, floors and walls. He also testified that in the summer he would remove furniture and filing cabinets and put them in the hallway so that classrooms could be cleaned. He said he did a lot of kneeling, stooping, and squatting, but he never said how frequently he did any of these tasks. He had been doing this work for many years with other employers. By 2012 he began to experience constant pain in both knees and was diagnosed with osteoarthritis in both knees. He subsequently had both knees replaced.

Malone filed an occupational claim petition against the Pennsauken Board of Education, alleging that his work duties aggravated his preexisting but asymptomatic osteoarthritis, requiring bilateral knee replacements. The Board of Education denied the claim.

At trial, petitioner produced Dr. Ralph Cataldo, an anesthesiologist, as his expert. Dr. Cataldo said that he found objective findings consisting of surgical scars from the knee replacements and some swelling about both knees. He said that in his opinion the work duties aggravated petitioner’s preexisting osteoarthritis because petitioner was asymptomatic in 2007 and was symptomatic after performing work duties. He estimated 70% permanent partial disability in each leg.

Respondent produced Dr. Francis Meeteer, a family and occupational medicine physician, who testified that petitioner’s osteoarthritis condition was chronic, progressive and degenerative and due to the natural aging process, not to work.

The Judge of Compensation found Dr. Cataldo to be more credible and awarded petitioner 55% permanent partial disability credit 20% for prior disability plus one year of temporary disability benefits for the year petitioner was out of work because of his knees. The permanency award came to $109,214. Petitioner returned to work for the Board of Education.

Respondent appealed and argued that Dr. Cataldo’s opinion was a net opinion, meaning that he never provided any medical basis to support his opinion on causation. The Appellate Division agreed, noting that there was minimal evidence in this case.

“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 Appellate Court added that the medical evidence was also deficient. “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 Cataldo did not explain – how Malone’s job duties aggravated the underlying osteoarthritic condition.”

The Court said that 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.

For these reasons, the Appellate Division reversed the award and ruled in favor of the Board of Education. The Court did not remand the case for further findings.

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