The matter of Malone v. Pennsauken Board of Education involved an occupational claim for an employee who worked as a custodian for the Board of Education for the City of Pennsauken from 2007 through 2012. The employee alleged that due to his job duties, including sweeping floors and stairwells, taking out trash, clearing blackboards and going up ladders, he aggravated underlying arthritis of both knees resulting in bilateral knee replacements.
After trial, the Workers' Compensation Judge held that the employee met his burden of legal and medical causation and awarded him permanent disability and back temporary disability. The employer appealed the decision, arguing that the Court erred in finding causal relationship between the employee's alleged complaints and his work activities since employer's expert opinion was a NET opinion and should also have been rejected. In an important and encouraging decision, the Appellate Court reversed the lower Court's decision.
The Appellate Court noted that the worker's knee complaints started in 2012, resulting in the first surgery in February 2012 and the second surgery in November 2012. He was asymptomatic prior to 2012. He did not return to work until November 2013. At trial, the employee testified about his various job duties, but only noted that he was required to kneel or squat "a lot."
The employee's expert, Dr. Ralph Cataldo, only reviewed the operative reports, one office visit report from the surgeon and the employee's testimony. Dr. Cataldo said the employee's work activities aggravated his underlying osteoarthritis resulting in the need for the replacement surgeries. He found a 70 percent partial total disability directly related to the worker's occupational exposure from 2007 through 2012.
The employer's expert was Dr. Francis Meeteer who said that the employee does in fact have osteoarthritis, but this condition was chronic in nature, progressive and was part of the natural aging process and therefore, the employee's work activities did not contribute to his need for the surgeries. The lower Court rejected Dr. Meeteer's opinion, found Dr. Cataldo to be more credible, found the employee to be credible and awarded the employee a permanency rating of 55 percent of partial total disability, noting that the employer should receive a credit of 20 percent for the employee's pre-existing condition. The appeal focused on the lack of objective medical evidence and Dr. Cataldo's NET opinion.
The Appellate Court found that the employee failed to meet his burden of proof. There was no dispute in the record or materials that the employee suffered from a pre-existing osteoarthritis before working for the employer and that the condition was asymptomatic and manifested in 2012. The Court noted: "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." The Court noted the lack of any evidence concerning how often and to what extent Malone engaged in the various physical activities about which he testified to perform his job duties. The employee's expert only relied upon the objective findings of scars and swelling, and that the job duties were performed "a lot". This was deemed insufficient by the Appellate Court. Dr. Cataldo did not explain how Malone's job duties aggravated the underlying condition. The award was reversed, without any remand.
Comment: This case is significant since the allegations made by the employee here are made frequently throughout the state. The lack of symptoms prior to 2012 provided the "easy" argument that the job duties must have aggravated the previously quiescent condition. The aggravation theory is ordinarily an easy path for the employee and frustrating for the employer. Here, the Court was very circumspect in its analysis and did not give a rubber stamp to the Judge's conclusions. It looked carefully at the evidence and noted the lack of specificity in the factual and medical evidence provided and how that resulted in the employee's case falling short of the statutory burden of proof. Employers must continue to demand that the employees meet their burden. No doubt employees will learn from this case that more specificity is required regarding the job duties and activities. But if they do not, this case can be used as a defense.
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Sara L. De Long