BARBARA CANNELLA - v. BOARD OF TRUSTEES, THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4389-07T24389-07T2

BARBARA CANNELLA,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, THE PUBLIC

EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent.

___________________________________________

 

Submitted March 3, 2009 - Decided

Before Judges Winkelstein and Chambers.

On appeal from a final decision of the Board of Trustees of the Public Employees' Retirement System, Docket No. 964387.

Diane Ault Cullen, attorney for appellant.

Anne Milgram, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Kellie L. Kiefer Pushko, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner Barbara Cannella appeals the decision of the Board of Trustees of the Public Employees' Retirement System (Board) denying her application for accidental disability retirement benefits under N.J.S.A. 43:15A-43. We affirm.

The relevant facts are not disputed. On December 26, 2002, Cannella, a State employee working for the Division of Youth and Family Services, arrived at the parking lot designated for State employees where she was assigned to park. The parking lot was located a block from the building where she worked. As she exited her vehicle, she slipped and fell on ice, sustaining injuries.

On April 19, 2006, the Board determined that due to the injuries incurred in the fall, Cannella was permanently and totally disabled from performing her regular and assigned duties, but did not qualify for accidental disability benefits within the meaning of N.J.S.A. 43:15A-43. In order to be entitled to accidental disability retirement benefits, the statute requires that the disabling injuries be "as a direct result of a traumatic event occurring during and as a result of the performance of [her] regular or assigned duties." N.J.S.A. 43:15A-43. The Board determined that she did not meet this criterion and denied her application for accidental disability retirement benefits.

Cannella appealed, and the case was sent to an administrative law judge (ALJ) for an administrative hearing. Following cross-motions for summary judgment, in his Initial Decision, the ALJ found that because Cannella was a block away from her place of employment when she fell, she had not yet completed her commute, and as a result, the fall had not occurred "during and as a result of the performance of [her] regular or assigned duties." Accordingly, the ALJ granted the Board's cross-motion for summary judgment, and dismissed the appeal. By letter dated May 27, 2008, the Board adopted the Initial Decision of the ALJ, and denied Cannella's application for accidental disability retirement benefits. This appeal followed.

In order to be entitled to accidental disability benefits, Cannella must meet the statutory requirement that her fall took place "as a direct result of a traumatic event occurring during and as a result of the performance of [her] regular or assigned duties." N.J.S.A. 43:15A-43. Because the facts are not in dispute, this case turns on the application of the statute to the undisputed facts.

When interpretation of a statute is involved, we will give "substantial deference" to the agency's interpretation. Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 196 (2007). However, we are not bound by that interpretation nor are we bound by the agency's decision on a purely legal issue. Ibid. Nonetheless, if the statute is ambiguous or silent on a particular point, we may not substitute our judgment for that of the agency provided the agency's determination is "based on a permissible construction of the statute." Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 581 (2000) (quoting 2 Am. Jur. 2d Admin. Law 525 (1994)). Further, we are mindful that "our overriding goal" in interpreting a statute "is to give effect to the Legislature's intent." Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., supra, 192 N.J. at 195.

The language at issue in this appeal, namely the phrase "as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties" was added to N.J.S.A. 43:15A-43 in 1966 and replaced language that provided coverage for injuries "arising out of and in the course of his employment." L. 1966, c. 67, 4; L. 1954, c. 84, 43; see Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, supra, 164 N.J. at 575-76 (discussing the series of amendments with identical language made to various major state accidental disability pension systems and expressly addressing the teachers' accidental disability pension system, N.J.S.A. 18A:66-39(c)).

This earlier language had been construed in accord with similar language in the workers' compensation law. Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, supra, 164 N.J. at 574-75. When determining eligibility for benefits, workers' compensation law applied the going and coming rule, providing that workers were not entitled to benefits for injuries sustained while traveling to and from work. Id. at 578. As judicial decisions chipped away at the going and coming rule in workers' compensation cases, the scope of workers' compensation benefits and perforce accidental disability benefits were expanded. Id. at 578-79.

The statutory language at issue in this appeal was designed to reverse that development of the law and limit eligibility for accidental disability pensions to accidents that "occur on premises owned or controlled by the employer." Id. at 580. It was part of a series of amendments designed to "make the granting of an accidental disability pension more difficult." Id. at 576.

If Cannella's accident is deemed to have occurred while she was commuting to work, then she is not entitled to accidental disability retirement benefits. See id. at 581 (stating that the accidental disability retirement statute governing teachers, which has identical language, N.J.S.A. 18A:66-39(c), does not allow the award of an accidental disability pension for an injury that occurred while going and coming from work). Cannella does not dispute this principle, but argues that because she had reached her employer's parking lot, her commute was finished and the accident occurred "during and as a result of the performance of [her] regular or assigned duties" as required by N.J.S.A. 43:15A-43.

In making this argument, plaintiff relies on Kasper where a school employee had parked her car and walked across the street to school property, intending to enter the school in order to distribute media materials before classes began which was part of her job. Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, supra, 164 N.J. at 570-71. As she ascended the stairs that led into the school building, she was assaulted and sustained injuries. Id. at 571. The Board denied her request for accidental disability retirement benefits on the basis that the assault occurred at the end of her commute and not during the performance of her duties. Id. at 571-72. The Supreme Court reversed. Id. at 588. In doing so, it set forth the general principle that employees may qualify under this language for events that occurred before or after the formal work day "so long as the employee is at premises owned or controlled by the employer for the purpose of performing his or her regular duties and not for some other purpose." Id. at 587. The Court further explained that:

The organizing principle is that one who is at the employer's premises solely to do his or her duty, and who, while doing what he or she is expected to do, is disabled by a traumatic accident, will qualify for inclusion in the class of those injured "during and as a result of the performance of his regular or assigned duties."

[Ibid. (quoting N.J.S.A. 18A:66-39(c)).]

In concluding that Kasper was entitled to accidental disability retirement benefits, the Court noted that her commute had been completed since she had already parked her car, crossed the street and "was at the school, at the expected time, to distribute media materials as she was required to do." Id. at 588. At the moment she was assaulted, she was climbing the stairs in order to enter the school and thus "was engaged in conduct that was, in every sense, preliminary but necessary to her early workday media distribution." Ibid.

In contrast, Cannella had not reached her employer's building, but still had another block to go. She was not at the premises where she worked when she fell. At the time of her fall, she had not begun any preliminary efforts in commencement of work, but rather still had to continue her commute on foot to her workplace. To allow accidental disability retirement benefits under these circumstances, would extend the scope of coverage beyond Kasper. As the Court explained in Kasper, this statutory language was designed to reassert the going and coming rule that had been gradually chipped away by judicial decisions. Id. at 580. To accept Cannella's argument would be to begin this process anew. Thus, the Board's application of the statute to the facts involving Cannella's accident is consistent with this legislative intent to enforce the going and coming rule. We find no error in the Board's interpretation of the statute.

Affirmed.

 

Cannella was later determined to qualify for ordinary disability retirement benefits under N.J.S.A. 43:15A-42.

(continued)

(continued)

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A-4389-07T2

July 23, 2009