GEORGE POLITZA v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GEORGE POLITZA,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES, POLICE

AND FIREMEN'S RETIREMENT

SYSTEM,

Respondent-Respondent.

__________________________________

February 5, 2014

Argued January 6, 2014 Decided

Before Judges Parrillo and Kennedy.

On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Docket No. 3-10-042979.

Thomas A. Cushane argued the cause for appellant (The Cushane Law Firm, L.L.C., attorneys; Mr. Cushane, on the briefs).

Danielle P. Schimmel, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Schimmel, on the brief).

PER CURIAM

Petitioner George Politza appeals from a final agency decision of the Board of Trustees, Police and Firemen's Retirement System (Board), denying him an accidental disability retirement benefit. We affirm.

The facts are undisputed. Petitioner was a police officer employed by Harrison Township in Gloucester County and a member of the Police and Firemen's Retirement System (PFRS). On January 28, 2009, while on duty, in uniform and equipped with his police radio, Politza met a fellow off-duty police officer for lunch at a pizzeria in Mullica Hill. After having lunch and while returning to his police vehicle parked on the lower level of an adjacent parking garage, Politza slipped and fell on a snow and ice-covered stairway. He reported his injury and received immediate medical treatment.

Thereafter, Politza applied for accidental disability retirement benefits. The Board denied the application but granted him ordinary disability benefits. The Board found that the January 28, 2009 incident was a traumatic event, as a direct result of which Politza became totally and permanently disabled from performing the customary duties of a police officer. However, because the fall did not occur during and as a result of his regular and assigned duties, the Board denied Politza an accidental disability retirement benefit.

Politza appealed and the matter was transferred to the Office of Administrative Law (OAL) as a contested case. On cross-motions for summary decision, the administrative law judge (ALJ) denied Politza relief, concluding that his injuries did not occur "during and as a result of the performance of his regular and assigned duties." The ALJ reasoned:

Although Kasper [v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 164 N.J. 564 (2000)] would mandate a finding that a lunch break taken on-premises would constitute the performance of an employee's actual duties in connection with his work, that conclusion is not mandated in this matter because the accident occurred off-premises. On the other hand, being off-premises is not an automatic exclusion from accidental disability protection either.

. . . . When off-premises, it must be determined that petitioner was injured during and as a result of regular or assigned duties as statutorily required under N.J.S.A. 43:16A-7(1).

. . . .

The Supreme Court in Kasper specifically did not classify lunch breaks taken off-premises locations, not under the control or ownership of the employer, as an employee's performance of actual duties.

. . . .

Although the petitioner was in uniform and equipped with his radio, the slip and fall did not occur during the performance of any police duties or as a result of them.

. . . .

A finding that a person who falls while descending a flight of stairs on his way from lunch sustains an injury during and as a result of his duties would "stretch the meaning of the statute beyond permissible limits." Estate of Matza, 96 N.J.A.R 2d (TYP) 224, 226 (1996), citing Boston Retirement Bd. v. Contributory Retirement App. Bd., 162 N.E.2d 821 (1959). It is certainly not the ordinary meaning that those words would import. Id. Thus petitioner must be denied accidental disability because he does not satisfy the premises requirement that the injury occur on property controlled or owned by the employer and, despite being subject to duty, he was not actually engaged in any regular or assigned duty at the time he was injured, but was returning to his police vehicle following a personal lunch that did not involve any police related activities.

The ALJ's Initial Decision denying Politza's application for accidental disability retirement benefits was adopted by the Board.

On appeal, petitioner argues that lunch breaks are a necessary concomitant of the performance of a police officer's regular and assigned duties and therefore the Board erred in concluding otherwise. We disagree.

As a threshold matter, we note that judicial review of an administrative agency decision is limited. Gerba v. Bd. of Trs. of the Pub. Emps.' Ret. Sys., 83 N.J. 174, 189 (1980). We accord the agency's exercise of its statutorily delegated responsibilities a "strong presumption of reasonableness," City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980), and defer to its findings of fact. Mazza v. Bd. of Trs., Police & Firemen's Ret. Sys., 143 N.J. 22, 29 (1995). "[T]he test is not whether an appellate court would come to the same conclusion if the original determination was its to make, but rather whether the factfinder could reasonably so conclude upon the proofs." Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985). Accordingly, we will not upset an agency determination unless it is shown to be arbitrary, capricious or unreasonable, its findings lack support in the evidence, or it violates the legislative grant of authority governing the agency. In re Herrmann, 192 N.J. 19, 27-28 (2007).

While we are not bound by an agency's decision on purely legal questions, we will give "substantial deference" to an agency's interpretation of those statutes that the agency enforces. Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192 N.J. 189, 196 (2007). 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, supra, 164 N.J. at 581 (quoting 2 Am. Jur. 2d Admin. Law 525 (1994)).

Because the interpretation of a statute by agencies empowered to enforce it "[is] given substantial deference," TAC Assocs. v. N.J. Dep't of Envtl. Prot., 202 N.J. 533, 541 (2010), we must determine whether the Board's construction of the statute at issue is permissible. Our ultimate goal, however, is always to give effect to legislative intent. Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 554 (2009).

To establish eligibility for accidental disability retirement benefits, N.J.S.A. 43:16A-7(1) requires an applicant to be permanently and totally disabled "as a direct result of a traumatic event occurring during and as a result of the performance of his regular or assigned duties. . . ." In Kasper, supra, the Court specifically addressed the requirement that the traumatic event occurs "during and as a result of the performance of his regular and assigned duties":

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." That interpretation is faithful to the Legislature's restorative vision in amending N.J.S.A. 18A:66-39(c). As we previously noted, the amendment was not transformative. It was not intended to limit the accidental disability pension solely to an injury sustained while a teacher is writing on the blackboard in her classroom or a policeman is actually engaged in an arrest. On the contrary, it was meant to restore the integrity of the premises rule; to reinvigorate the going and coming rule; and to qualify for an accidental disability pension an employee who is on premises controlled by the employer and whose injury is causally connected, as a matter of common sense, to the work the employer has commissioned.

[164 N.J. at 587-88.]

This "bright-line" premises rule also encompasses activities preparatory to but essential to the actual duty. Id. at 585. Included within its scope are "on-premises lunch and restroom breaks that are necessary concomitants of an employee's performance of his or her regularly assigned tasks, so long as they occur within the confines of the workday at the work location." Id. at 586 n.7 (emphasis added).

In Kasper, the Court awarded an accidental disability pension to an educational media specialist employed by the Newark Board of Education, who was assaulted as she was climbing the steps to enter the school building. Id. at 570-71. Although the school day officially began at 8:30 a.m., the specialist arrived early, as she had every morning for nine months, because the school principal required that certain media materials be distributed to various classrooms prior to the official start of classes. Id. at 570. Concluding that the specialist was engaged in conduct that was, in every sense, preliminary but necessary to her early workday media distribution, the Court found her qualified for an accidental disability pension under the Teachers' Pension and Annuity Fund Law, N.J.S.A. 18A:66-39(c), which, identical to N.J.S.A. 43:16A-7, requires that the traumatic event occur "during and as a result of the performance of [her] regular or assigned duties." Id. at 571, 588.

To be sure, the fact that an employee is injured off-premises does not automatically exclude him from accidental disability protection. Kasper, supra, 164 N.J. at 585 n.6 (observing that the concept of 'regularly assigned duties' "covers all activities engaged in by an employee who the employer assigns to work off-premises from the formal beginning to the formal end of the workday"). When off-premises, however, an applicant, to be eligible, must be injured during and as a result of regular or assigned duties as statutorily required under N.J.S.A. 43:16A-7(1).

Here, of course, petitioner suffered the traumatic event off-premises while descending an icy stairway after having a personal lunch at a pizzeria with an off-duty colleague. He was therefore neither on premises property owned or controlled by his employer nor performing "an activity preparatory but essential to [his] actual duties," Kasper, supra, 164 N.J. at 585, at the time he sustained his injuries. On the contrary, petitioner was returning to his patrol car parked in a private parking lot of a shopping plaza after enjoying a lunch break with a friend.

Petitioner nevertheless contends he was in uniform and required to monitor his radio for possible assignments while on his lunch break. Yet the fact that a police officer may be considered always "on duty" does not mean that every accident occurs "during and as a result of his regular and assigned duties." Such a construction renders the statutory requirement that the traumatic event occur during and as a result of the regular and assigned duties meaningless.

The fact remains that during his lunch off-premises, petitioner was neither responding to any police call, patrolling the site, or performing any assigned duty, and therefore cannot properly be considered to be engaged in activity considered to be "causally connected, as a matter of common sense, to the work [his] employer has commissioned." Kasper, supra, 164 N.J. at 588. And while he argues that the nature of a patrolman's job requires a presence off-site and that lunch breaks are a "necessary concomitant" of his regular and assigned duties, the Court in Kasper did not include off-premises lunch breaks as qualifying. Id. at 586 n.7.

Lastly, petitioner cites to previous Board decisions in support of his position. First, these administrative decisions do not bind future agency determinations, Lubliner v. Bd. of Alcoholic Beverage Control, 33 N.J. 428, 441-42 (1960), and certainly do not control the result here. Moreover, they are each distinguishable on their facts. In the matter referred to as "Zerby," the Board did not grant an accidental disability retirement benefit, but rather an accidental death benefit. See State v. Buckley, No. A-3922-09 (App. Div. Oct. 18, 2011) (slip op.). In Nock v. Police & Firemen's Ret. Sys., TYP 8786-00, initial decision (Feb. 4, 2002), adopted, Bd. of Trs. (Mar. 18, 2002), http://lawlibrary.rutgers.edu/oal/search.html, the police officer awarded the accidental disability retirement benefit was injured in a car accident while in his marked police vehicle, on the way to his police department, but after he had radioed police headquarters to inform the department that he was in the car and had his radio call acknowledged. And in Bielinski v. Bd. of Trs. of the Police & Firemen's Ret. Sys., TYP 2103-01, initial decision (Aug. 6, 2002), adopted, Bd. of Trs. (Sept. 9, 2002), http:// lawlibrary. rutgers.edu/oal/ search.html, prior to hearing, the parties stipulated that the motor vehicle accident involving the police detective awarded accidental disability retirement benefits was a "traumatic event" and no one disputed that the incident occurred during and as a result of the performance of the officer's duties, rendering it a non-issue for the ALJ.

Because petitioner was not injured on premises owned or controlled by his employer, or during or as a result of any of his regular or assigned job duties, we are satisfied that the Board properly denied his application for accidental disability retirement benefits.