PATRICK MALONE v. PENNSAUKEN BOARD OF EDUCATION

NOT FOR PUBLICATION WITHOUT THE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.

              John H. Geaney 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

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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



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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



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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



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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

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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.




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