State News : New Jersey

Patrick Malone began working for the Pennsauken Board of Education in 2007 as a custodian.  He said he would sweep floors, take out the trash, clean the blackboards and desktops, remove gum and shoe marks from floors, sometimes climb ladders, and clean toilets, floors and walls.  He also said 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.  In 2012 and 2013 he 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, represented by Capehart Scatchard, denied the claim.

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.  She commented as follows:

[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 one’s 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.

The judge 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 for his opinion on causation.  The Court 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 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 Appellate Division criticized the simplistic analysis on causation performed by Dr. Cataldo. “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.”  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.

This case is significant for practitioners and employers because it shows that the focus in occupational orthopedic claims, just like pulmonary claims, must be on medical or scientific evidence supporting or rejecting causation.  In an occupational claim, unlike a traumatic claim, the claimant must show not only that the condition arises from work and occurs during work, but also that the medical condition is produced by causes that are characteristic of or peculiar to work in a material degree.

In the end, Dr. Cataldo based his opinion on timing, not medical analysis.  It is clearly flawed reasoning to assume proof based on timing alone in an occupational disease claim.  His contention was that there was causation merely because petitioner became symptomatic after working with a preexisting osteoarthritic condition. It is the sort of logic that would support a causal connection between the rooster crowing and the rising of the sun. As Lora Northen, Esq. of Capehart Scatchard has often stated in seminars, that sort of logic would mean that sleeping causes carpal tunnel syndrome because the numbness and tingling usually happen at night.

Petitioner lost this case because there was absolutely no testimony at trial regarding any medical studies or literature showing that bending, stooping or squatting worsens preexisting osteoarthritis to the degree that knee replacements are needed. In fact, the Arthritis Foundation promotes an exercise program for those with osteoarthritis. The question is the degree of physical activity which is helpful or harmful. In this case, the record was silent on the extent and frequency of physical activity engaged in by the petitioner.

This case was expertly handled by Adam Segal, Esq. of Capehart Scatchard with assistance on the trial and appellate briefs by the undersigned. The case can be found at Malone v. Pennsauken Board of Education, A-3181-16T1, (App. Div. June 29, 2018).

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John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at jgeaney@capehart.com.