(c) 2019 Jon L Gelman, All Rights Reserved.

Saturday, June 30, 2018

Insufficient Evidence: When "A Lot" is Not Enough

A Judge of Compensation's opinion must be supported by objective medical evidence and not merely based upon an inadmissible net opinion of a medical expert.

The NJ Court of Appeals, in an unreported, per curium decision, before a panel of two judges, reversed a Judge of Compensation's holding that alleged, repetitive motion trauma, was causally related to the injured workers' orthopedic knee injury.

"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." Also, it was admitted that the injured worker also suffered from a pre-existing arthritic condition.

"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. "

"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 on physical examination were the surgical scars that resulted from the knee replacements and some swelling about both knees."

The Court relied upon the well established NJ case law to reverse the Judge of Comepnsation'sdecisionn. "New Jersey had required that, in order for expert testimony to be admissible, a “general acceptance” of the expert's opinion or theory within the scientific or professional community must be demonstrated. Three methods were utilized to determine whether an expert's testimony or scientific results could be proven to be reliable in terms of its general acceptance within the scientific community: 1. the testimony of knowledgeable experts; 2. authoritative scientific literature; and 3. persuasive judicial decisions which acknowledged the general acceptance of the expert testimony.  Laffey v. City of Jersey City, 289 N.J.Super. 292, 673 A.2d 838 (App.Div.1996)." Gelman, Jon L, Workers’ Compensation Law, 38 NJPRAC 26.4 (Thomson-Reuters 2018).

Malone v Pennsauken Board of Education, 2016 WL 3190780, Decided June 29, 2018 (NJ App Div)

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.

Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (West-Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thomson-Reuters).

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