Malone v. Pennsauken Board of Education, Docket No. A-3404-18T3 (App. Div., Decided Jul. 28, 2020)

Appellate Division finds that a Judge of Compensation has statutory authority to enter an order requiring petitioner and petitioner’s counsel to repay a workers’ compensation award which the Division subsequently overturned.

In this per curiam decision, the Appellate Division found that a Judge of Compensation has the necessary jurisdiction to enter an order requiring the petitioner and his counsel to repay a workers’ compensation award that was subsequently overturned. The Appellate Division noted that under N.J.S.A. 34:15-57, a Judge of Compensation has the statutory authority to “modify any award of compensation, determination and rule for judgment” which was issued.

The petitioner was employed as a custodian with the respondent beginning in 2007. His responsibilities included sweeping floors, taking out the trash, cleaning the blackboards and desktops, removing shoe marks from the gymnasium floor and scrubbing toilets. According to the petitioner’s testimony at trial, his work required “a lot of kneeling, stooping, and squatting,” though he did not testify as to the frequency with which he did any of these tasks. The petitioner also testified that he was a “life-long janitor” who had been employed elsewhere prior to his employment with the respondent. By 2012, the petitioner began to experience constant bilateral knee pain and was diagnosed with osteoarthritis of both knees. In 2013, he underwent bilateral knee replacement surgery.

At trial, Dr. Ralph Cataldo, an anesthesiologist, testified on the petitioner’s behalf. Dr. Cataldo conceded the petitioner did have a preexisting osteoarthritis of the bilateral knees. However, based on the petitioner’s reporting that he was asymptomatic prior to his employment with the respondent, Dr. Cataldo found that the petitioner’s work duties with the respondent aggravated this preexisting osteoarthritis.

The respondent produced Dr. Francis Meeteer, a family and occupational medicine physician, who testified that the petitioner’s osteoarthritis condition was chronic, progressive, and degenerative and that his need for bilateral knee replacement surgery was a result of the natural aging process, not his employment.

The Judge of Compensation found Dr. Cataldo to be more credible, reasoning:

[A]n 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 accordingly granted the petitioner an award of permanent disability of the bilateral knees, as well as a period of temporary disability benefits for his time out of work. The respondent appealed.

In reversing the judge’s ruling, the Appellate Division found that Dr. Cataldo’s opinion constituted a “net opinion” under N.J.R.E. 703. The so-called “net opinion” rule requires that a trial court exclude expert opinions that have no factual or evidentiary support and are based on nothing other than the expert’s own unsupported conclusions. As the Appellate Division reasoned:

There was no evidence concerning how often and to what extent Malone engaged in the various physical activities about which he testified. Simply to identify that the tasks he performed 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. And, the only objective medical evidence Cataldo identified were the surgical scars and the swelling he found around each knee. Neither [petitioner’s testimony or the objective medical evidence cited to by Cataldo] indicate how Malone’s job duties aggravated the underlying osteoarthritic condition.

Based on the Appellate Division’s reversal of the petitioner’s award, the respondent requested that the petitioner and his counsel reimburse them for all funds paid pursuant to the reversed order. After both the petitioner and his counsel refused, the respondent filed a motion asking the judge to enter an order for reimbursement. According to the respondent, it intended to obtain an order that could be docketed in the Superior Court as a judgment to facilitate collection against the petitioner and his counsel. The judge denied this motion, indicating that, as the decision was reversed and not remanded, the Appellate Division retained jurisdiction over the matter. Also, the judge questioned whether she would have statutory authority to order reimbursement, even if the Appellate Division had remanded the matter. The respondent appealed.

In reversing and remanding the Judge of Compensation’s dismissal of the respondent’s motion, the Appellate Division noted that, as a general rule, once an appeal is perfected, the trial court is divested of jurisdiction to act. That notwithstanding, the Appellate Division found that under N.J.S.A. 34:15-57:

[A] Judge of Compensation does have the statutory authority to “modify any award of compensation, determination and rule for judgment” it has issued. This provision vests in the Division of Workers’ Compensation and its judges “discretionary power over its own judgments as is inherent in other courts.”

Accordingly, the Appellate Division reasoned the Judge of Compensation had the statutory authority to enter a judgment against the petitioner and his counsel for the amounts paid by the respondent under the order which was later reversed. The matter was remanded to allow the judge to enter such an order.

This Appellate Division ruling delineates one of the many powers of a Judge of Compensation, namely, to hear and determine workers’ compensation matters in dispute in a summary manner. This includes the power to modify any award of compensation, determination and rule for judgement or order approving settlement which the judge may enter, and to provide for commutation of any such award, determination, and rule for judgment or order approving settlement. Additionally, when ancillary to the determination of an employee’s rights, the judge is also vested with the power to rule on questions relating to workers’ compensation insurance coverage, including fraud in the procurement, mistake of the parties, reformation of the policy, cancellation, existence or validity of an insurance contract, coverage of the policy at the time of the injury, construction of the extent of coverage and claims for reimbursement by one carrier against another.

What’s Hot in Workers’ Comp, Vol. 24, No. 9, September 2020

 

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