IN THE MATTER OF SHEILA WALKER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2039-07T12039-07T1

IN THE MATTER OF SHEILA WALKER.

_____________________________________________

 

Argued May 18, 2009 - Decided

Before Judges Carchman, R. B. Coleman and Simonelli.

On appeal from the New Jersey Merit System Board, DOP Docket No. 2007-4445.

Rosemarie Cipparulo argued the cause for appellant Sheila Walker (Weissman & Mintz, LLC, attorneys; Ms. Cipparulo, on the brief).

Todd A. Wigder, Deputy Attorney General, argued the cause for respondent Merit System Board (Anne Milgram, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Wigder, on the brief).

PER CURIAM

Petitioner-claimant Sheila Walker appeals from a final administrative decision of the New Jersey Merit System Board (Board) issued on December 5, 2007, denying her request for reconsideration of its denial of sick leave injury (SLI) benefits pursuant to N.J.S.A. 11A:6-8 and N.J.A.C. 4A:6-1.6. After carefully considering claimant's arguments in light of the record, briefs, and applicable law, we affirm.

Claimant was working as a "Data Processing Scheduler 1" for the respondent Office of Information Technology (OIT) when a paper towel dispenser in the ladies' bathroom at her place of work dislodged from the wall and struck her in the hands and wrists, causing injury. The accident occurred at 4:00 a.m. on January 5, 2006 while claimant was monitoring centralized computer systems at the System Command Center of the OIT. Claimant filed an incident report the same day.

Later that day, Dr. Thomas Seck, a state-authorized physician, diagnosed claimant with bilateral hand contusions and a cervical strain. Seck also found that prior to the accident claimant already suffered from bilateral carpal tunnel syndrome and that her preexisting condition was aggravated by the accident. Seck placed claimant on light duty until February 3, 2006 and prescribed ice, exercise and medication. On February 13, 2006, Seck referred claimant to Dr. Jon Ark, another state-authorized physician, for an orthopedic evaluation. On March, 15, 2006, Ark placed claimant "off-duty" until April 4, 2006, due to her carpal tunnel syndrome.

Claimant applied to OIT for SLI benefits to compensate her for fifteen missed days of work from March 15, 2006 to April 3, 2006. On April 12, 2006, OIT denied claimant's request for SLI benefits on the ground that claimant's accident was an aggravation of a preexisting injury, which is not compensable pursuant to N.J.A.C. 4A:6-1.6(c)(2).

On April 21, 2006, claimant appealed OIT's denial of SLI benefits to the Board. Regarding OIT's stated grounds for dismissal of her request, claimant argued that N.J.A.C. 4A:6-1.6(c)(2) precludes compensation for aggravations of preexisting injuries only where the event precipitating the aggravation was reasonably foreseeable; she argued further that a paper towel dispenser dislodging from the wall was not foreseeable. On March 29, 2007, the Board issued a written decision denying claimant SLI benefits on a ground unrelated to her preexisting injury. The Board ruled that claimant "was on break and [therefore] not engaged in a work-related activity" when she was struck by the dispenser, rendering her ineligible for SLI benefits pursuant to N.J.A.C. 4A:6-1.6(e)(2).

Claimant filed a request for reconsideration on May 1, 2007, asserting that she was not given an opportunity to present evidence regarding the issue of whether or not she was on a break when the injury occurred. With her request for reconsideration, claimant submitted two notarized statements her own and that of her shift supervisor in support of her arguments.

On December 7, 2007, the Board granted reconsideration of claimant's appeal but denied her request for SLI benefits. In doing so, the Board took into account the additional proofs submitted by claimant, but found that all the evidence presented failed to establish a prima facie case that claimant was engaged in a work-related activity and not on a break when the accident occurred.

On appeal to this court, claimant argues that the Board's decision was arbitrary, unreasonable, and not supported by credible evidence in the record. In support of this contention, claimant asserts that (1) she was not on a break when the injury occurred; (2) the Board's designation of what does and does not constitute a break is arbitrary and unreasonable; (3) claimant could not leave her work station for breaks or lunch periods; (4) providing a safe restroom is a condition of employment; (5) the accident occurred on work premises; and (6) injuries occurring in restrooms are compensable under workers' compensation law.

Appellate courts are limited in the scope of their review of final decisions of administrative agencies. "Courts can intervene only in those rare circumstances in which the agency action is clearly inconsistent with its statutory mission or other state policy." In re Musick, 143 N.J. 206, 216 (1996). Thus, this court will not reverse an agency decision unless it is arbitrary, capricious or unreasonable, or it is not supported by substantial credible evidence on the record as a whole. In re Taylor, 158 N.J. 644, 657 (1999); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Brock v. Public Serv. Elec. & Gas Co., 149 N.J. 378, 383 (1997). We also recognize that decisions of administrative agencies carry a presumption of reasonableness. City of Newark v. Natural Res. Council in Dep't of Envtl. Prot., 82 N.J. 530, 539-40, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). Where there is more than one possible conclusion based on the evidence, we will yield to the expertise of the agency. Ibid.

The Board (now the Civil Service Commission) is authorized by N.J.S.A. 11A:6-8 to promulgate regulations governing the provision of benefits to state workers who have been injured on the job. Pursuant to those regulations, employees are entitled to a paid leave of absence known as SLI benefits for time missed due to certain types of injuries deemed compensable by the Board. An employee seeking SLI benefits must first submit a request for benefits with his or her employer. N.J.A.C. 4A:6-1.7(f). In deciding whether to grant or deny the employee's request, the employer must apply the standards set forth in N.J.A.C. 4A:6-1.6. N.J.A.C. 4A:6-1.7(f)(4). An employee who disagrees with his employer's denial of SLI benefits may appeal the employer's decision to the Board. N.J.A.C. 4A:6-1.7(h). On appeal to the Board, the employee bears the burden of proof to establish by a preponderance of the evidence that the injury comports with the Board's standards. N.J.A.C. 4A:6-1.7(j). These standards provide, in pertinent part:

(b) An employee who is disabled due to a work-related injury or illness shall be granted a leave of absence with pay.

. . . .

(c) The disability must be due to an injury or illness resulting from the employment.

. . . .

(e) For the injury to be compensable, it must occur during normal work hours or approved overtime. . . . (2) Injuries which occur during lunch or break periods are not compensable. However, employees who are required by the appointing authority to remain at a particular job location during lunch and/or work-break shall not be precluded from receiving SLI benefits.

[N.J.A.C. 4A:6-1.6 (emphasis added).]

Thus, a claimant appealing an employer's initial denial of SLI benefits to the Board must establish by a preponderance of the evidence (1) that the claimant's injury was "work-related" and/or resulted from her employment, N.J.A.C. 4A:6-1.6(b) and (c); (2) that the claimant's injury occurred during normal work hours, N.J.A.C. 4A:6-1.6(e); AND (3) either that the claimant's injury did not occur during a lunch or break period, or that the claimant was required to remain at her particular job location during such breaks, N.J.A.C. 4A:6-1.6(e)(2).

The term "break period" is not defined in the regulations. The Board instead determines whether an employee was on break on a case-by-case basis. In past decisions, the Board has found that an accident that occurs during a state employee's personal restroom use occurs during a break, whereas an accident that occurs while an employee is en route to, but not on a break, is work related and compensable under its rules. See In re Janet Tighe, Richard Stockton Coll. of N.J., DOP 2005-471, final decision, (January 14, 2005).

We now turn to claimant's first argument: that contrary to the finding of the Board, she was not on a "break" at the time of the accident that caused her injury. In support of this contention, claimant asserts that the Board "refused to acknowledge credible evidence that [she] was not on break when the accident occurred." The evidence alluded to by claimant consists of two notarized statements. The first statement is her own, which asserts that "trips to the restroom . . . [were] not considered part of break or lunch periods" at her workplace and that she was unable to take "breaks" because no one was sufficiently trained to relieve her of her duties. The second notarized statement, a letter written by her shift supervisor, in its entirety states: "On the Morning [sic] of January 5, 2006, Sheila Walker was not on a scheduled lunch or break when the accident occurred."

We find claimant's proofs insufficient to overcome the Board's finding that she was on a break when the accident occurred. The additional "facts" submitted by claimant are actually her own arguments favoring a reversal of a conscious policy choice made by the Board: that a personal restroom visit is not work related for the purposes of SLI benefits. Moreover, the Board's rules governing the disposition of SLI benefits are not concerned with whether a break is "scheduled" or whether bathroom visits are considered "breaks" in a given workplace. The only facts pertinent to the Board's decision are whether claimant was inside the restroom at the time of injury and whether her injury resulted from the employment. As noted by the Board in its decision, claimant readily admitted that she was inside the restroom at the time of the accident and that she was not doing work related to her job while in the restroom. We are convinced that the evidence was sufficient to support a finding that claimant was on a "break" when the accident occurred and that the Board properly weighed the evidence for and against its finding.

Second, claimant argues that the criteria used by the Board to differentiate breaks from work-related activities are arbitrary and unreasonable. Claimant contends that it is "wholly unreasonable" for the Board to find that an accident occurring within a restroom is not compensable whereas an accident occurring just outside the restroom on the way in or out is compensable. In response, the Board maintains that its decision to draw the line at the bathroom door, so to speak, is a reasonable policy choice consistent with its broad mandate under N.J.S.A. 11A:6-8.

The New Jersey Supreme Court has specifically addressed the scope of the Board's mandate to establish, interpret and enforce rules governing the disposition of SLI benefits. In Musick, supra, 143 N.J. at 217-18, the appellant argued that a Board policy limiting SLI benefits to one year following the date of injury was an "arbitrary cutoff of benefits." Rejecting that argument, the Court stated that "the Legislature has not clearly limited the [Board's] choice of policy. It has given a very broad mandate to adopt the necessary rules and regulations to implement an SLI benefits program." Id. at 217. The Court further emphasized that the Board's SLI benefit program, unlike workers' compensation, is not "remedial social legislation" mandated by the Legislature but rather is a "fringe benefit" for state workers. Id. at 217-18.

If the Court in Musick allowed the Board to cut off SLI benefits at one year from the date of injury in order to conserve state resources, surely it would allow the Board to define an employee's personal visit to the bathroom as a "break" under its own regulations. Consistent with the Court's holding in Musick and our limited scope of review, we must hold that the Board's determination that claimant was on a "break" while in the restroom was not arbitrary, capricious or unreasonable. Rather, the Board's determination was consistent with its prior decisions and sensibly distinguishes work-related from non-work-related injuries.

Third, claimant argues that her job responsibilities prevented her from leaving her workstation for breaks or lunch periods, making her eligible for SLI benefits under the exception found in the second sentence of N.J.A.C. 4A:6-1.6(e)(2). N.J.A.C. 4A:6-1.6(e)(2) reads: "Injuries which occur during lunch or break periods are not compensable. However, employees who are required by the appointing authority to remain at a particular job location during lunch and/or work-break shall not be precluded from receiving SLI benefits." The Board found that claimant failed to present a prima facie case establishing that she was required by her employer, the appointing authority, to remain at her particular job location.

Claimant submitted two pieces of evidence in support of her contention that she was required to remain at her job location. The first, claimant's own notarized statement, maintained that at the time of the injury no other person on her shift was sufficiently trained to perform her job duties (monitoring the State's "Bull" computer systems), rendering her unable to "leave her work station for the length of a break period (15 minutes) or lunch period (one hour)." Claimant's own statement also maintained that a failure to continuously monitor the Bull systems could potentially lead to an unavailability of online information or a system crash. No other information was provided to verify her statements. Claimant also submitted her supervisor's letter, which stated only that claimant was not on a "scheduled" lunch or break when the accident occurred. The supervisor's letter did not address whether claimant was allowed to leave her workstation.

The Board determined that claimant's evidence failed to prove that she was required to remain at her work location. We find the Board's determination sound. The Board is empowered to interpret its own regulations in a reasonable manner, and if it chooses to limit the scope of the (e)(2) exception to situations in which there is, for example, an official written work policy keeping employees at their workstations, we find that to be a reasonable policy choice. In her own statement, claimant listed several negative outcomes that would result from her spending more than fifteen minutes away from her desk, but failed to provide any proof that anyone other than her own conscience required her to stay at her workstation. The rule demands that the employee's "appointing authority" require that the employee remain at a worksite. Neither claimant nor her supervisor stated that the appointing authority had a policy in place formal or informal commanding employees to remain at their desks or in the building. We will not second-guess the Board's choice not to expand the scope of the (e)(2) exception to encompass work environments like claimant's.

Moreover, claimant's attempt to equate her case to In re Jefta Bernhard is unpersuasive. DOP 2006-768 final decision, (December 12, 2005). In Bernhard, the Board granted SLI benefits to a corrections officer who slipped and fell while coming out of the bathroom in part because the Board determined that Bernhard was, in fact, required to remain at his particular job location during breaks. In the instant case, the Board made the opposite conclusion on different facts, and claimant has failed to specify how her proofs were stronger than those presented in Bernhard or how her work situation is similar to that analyzed in Bernhard. It appears likely that the Department of Corrections had clear policies in place preventing employees from leaving the facilities for lunch and breaks, whereas claimant failed to point to any policy keeping employees at their workplace. Nevertheless, we shall refrain from weighing the facts of the two cases and simply conclude that there was ample evidence supporting the Board's factual determination that claimant did not establish by a preponderance of the evidence that she was required by her appointing authority to remain at her workplace.

We find claimant's fourth argument, which essentially attempts to read a "safe restroom" requirement into the SLI rules, to be without merit. Claimant points out that pursuant to the Board's rules, "[i]njuries . . . which would not have occurred but for a specific work-related accident or condition of employment are compensable." N.J.A.C. 4A:6-1.6(c)(1). She then argues, relying on a definition of "condition of employment" from New Jersey Supreme Court cases unrelated to SLI benefits, that the phrase "condition of employment" extends to work facilities and that the term work facilities necessarily includes restrooms.

We conclude that the New Jersey Supreme Court cases cited by claimant do not provide us with the authority to contradict the Board's interpretation of the phrase "condition of employment." A phrase does not retain its legal definition when applied in a wholly different context. See State v. DiCarlo, 67 N.J. 321, 325 (1975) ("The adventitious occurrence of like or similar phrases, or even of similar subject matter, in laws enacted for wholly different ends will normally not justify the [in pari materia] rule [of statutory construction]," which allows courts to borrow the meaning of a phrase from a different statute or legal context). The cases cited by claimant define the term "condition of employment" in the context of the Public Employer-Employee Relations Act, N.J.S.A. 34:13A-1 to -39, which pertains to labor relations. We find that a labor relations statute represents an entirely different context a "wholly different end" than the Board's SLI benefit regulations, which pertain to work-related injuries. Until the Board or the New Jersey Supreme Court determines that a restroom is a "condition of employment" under N.J.A.C. 4A:6-1.6(c), we remain constrained by our limited scope of review and will defer to the Board's interpretation of its regulations. We therefore affirm the Board's conclusion that an injury occurring during a personal bathroom break is neither work related nor caused by a condition of employment and is not compensable under its SLI regulations.

Claimant's fifth argument posits that it is "inconceivable" that an injury occurring in the bathroom is not compensable even though the regulations require that an injury must occur on the work premises to be compensable. See N.J.A.C. 4A:6-1.6(d). The regulations, however, do not state that all injuries occurring on the premises are compensable. Rather, the regulations state that an injury is not compensable unless it occurs on the premises. N.J.A.C. 4A:6-1.6(d). Moreover, claimant's argument is further weakened by the fact that the regulations provide for compensation where the employee is injured during off-premises work activity or during travel between work stations. N.J.A.C. 4A:6-1.6(d)(2). We find it entirely rational for the Board to generally exclude off-premises injuries from SLI benefits while also recognizing that certain on-premises injuries are not sufficiently work related to qualify for SLI benefits.

Finally, claimant argues that because an employee injured in a restroom at work would be entitled to benefits under the New Jersey workers' compensation statute, a state employee injured in a restroom at work should be granted SLI benefits. We expressly rejected an almost identical claim in Morreale v. New Jersey Civil Serv. Comm'n, 166 N.J. Super. 536, 538-40 (App. Div.), certif. denied, 81 N.J. 275 (1979). In Morreale, a state employee argued that her off-site injury was sufficiently work related to qualify for SLI benefits because it would have been deemed to have occurred "in the course of employment" pursuant to the workers' compensation statute. Id. at 539. Rejecting that argument, we found that the workers' compensation statute and the Board's SLI regulations have "wholly different ends and purposes, and the differences warrant different rules of construction in their application." Ibid.; see also Musick, 143 N.J. supra, at 218-19 (citing Morreale and emphasizing that the SLI benefits are a "fringe benefit" to state employment whereas workers' compensation is "remedial social legislation"). We therefore also reject claimant's argument urging us to reverse the Board's finding based on similarities between the workers' compensation statute and the SLI benefits regulations.

 
Affirmed.

On June 30, 2008, the Merit System Board ceased to exist as an entity of the Department of Personnel, but its functions, powers, and duties were transferred intact to the Civil Service Commission. N.J.S.A. 11A:11-1. Pursuant to N.J.S.A. 11A:11-5, this action must be decided under the laws and rules in existence prior to June 30, 2008. At that time, N.J.S.A. 11A:6-8 explicitly vested the Board with the authority to promulgate all rules necessary for its implementation.

The Board indicated that both the location of the accident ("coming out of" the restroom) and the fact that Bernhard was required to remain at his job location were independently sufficient bases for granting SLI benefits.

(continued)

(continued)

16

A-2039-07T1

October 8, 2009