ESPERANZA SHAPIRO v. BOARD OF TRUSTEES OF 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NOT FOR PUBLICATION WITHOUT THE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-0

ESPERANZA SHAPIRO,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES OF THE PUBLIC

EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent.

_______________________________________

October 2, 2014

Argued September 24, 2014 - Decided

Before Judges Waugh and Carroll.

On appeal from the Department of the Treasury, Division of Pensions and Benefits, Docket No. 09224-2008N.

Samuel M. Gaylord argued the cause for appellant (Gaylord Popp, attorneys; Louis W. Boltik, on the brief).

Eileen S. DenBleyker, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Nels J. Lauritzen, Deputy Attorney General, on the brief).

PER CURIAM

Esperanza Shapiro appeals from a final determination of the Board of Trustees (Board) of the Public Employees' Retirement System (PERS), dated April 18, 2013, finding that she was not eligible for accidental disability retirement benefits. We affirm.

The facts are essentially undisputed. Shapiro was employed as a coordinator for Special Vendor Programs at the University of Medicine and Dentistry (UMDNJ). Her position required her to travel outside of her assigned office in New Brunswick an average of two or three times a week. When not in her office, she was in the field, reaching out to minority and women-owned businesses and attending trade shows, marketing events, and meetings with political leaders. UMDNJ provided her with a vehicle, a laptop computer, and a cell phone to assist with her work-related tasks. She received a set salary as compensation and did not receive overtime.

On the morning of November 18, 2003, Shapiro drove the vehicle provided by UMDNJ directly from her home to attend events in northern New Jersey. The events concluded around 2:30 p.m., after which she returned to her New Brunswick office to complete various tasks and prepare for her next event. Shapiro then left her office and drove straight home in the UMDNJ vehicle. She did not have another event that evening, and testified that her services were done for the day when she headed home. While stopped at a traffic light near her home, the rear of her vehicle was struck by another vehicle, allegedly causing her injury.

In 2007, Shapiro filed an application for accidental disability retirement benefits, claiming that she was incapacitated and unable to perform her duties as a result of the November 18, 2003 accident. On May 21, 2008, the Board denied the application. Shapiro appealed the denial, and the Board referred the matter to the Office of Administrative Law (OAL) for a hearing before an Administrative Law Judge (ALJ).

The ALJ issued a comprehensive thirty-three page decision dated March 13, 2013, finding that Shapiro was not entitled to receive accidental disability retirement benefits. The ALJ concluded that Shapiro's accident did not occur during and as a result of the performance of her regular or assigned duties as required by N.J.S.A. 43:15A-43. The ALJ additionally found that Shapiro's travel, during which she was allegedly injured, did not qualify as work-related travel under N.J.A.C. 17:2-6.27. The ALJ reasoned

It is undisputed that the incident did not occur on the employer's premises, but while petitioner was driving from her assigned office to her home. Equally undisputed is that the accident occurred at approximately 5:14 p.m. and only blocks away from petitioner's home. Although the evidence supports that petitioner's job duties included working in the field, the accident did not occur during her travel to or from a trade show or other event. Rather, petitioner candidly acknowledged that it happened after she had left her office and during her trip home. She further admitted that her services were done for that day and she did not have any other events or trade shows that night. Indeed, petitioner's own incident report reflects her notation of "N/A" in response to the question, "Was employee on duty?"

Succinctly stated, at the time of the accident petitioner was not engaged in the actual performance of her duties, but, instead, petitioner was simply commuting home from her office. She was not traveling to do a work-related activity, such as attending a trade show or other event. Petitioner was not engaged in doing anything related to her duties or incidental to her duties when she was struck by the other vehicle. At the time of the accident, no specific or assigned duties were actively being performed or pursued and petitioner's services had already ended for the day. That petitioner may have had a work computer with her, and alluded to doing some type of preparation work at home, does not change the essential quality of what she was doing at the time of her accident, which was driving home from her office. Further, any work that she may have done at home, while commendable, cannot be said to be a requirement of her job based on the evidence presented, including her job description, and is insufficient to transform her ordinary commute into the actual performance of her duties as the coordinator for Special Vendor Programs.

On April 18, 2013, the Board issued a final decision adopting the ALJ's decision. This appeal followed.

On appeal, Shapiro argues that she was in the course of her regular or assigned duties when the accident occurred, since she typically worked from home using the laptop computer and cell phone provided by UMDNJ, and she was driving a UMDNJ vehicle. We do not find this argument persuasive.

The standard of review that applies in an appeal from a state agency decision is well established. "Judicial review of an agency's final decision is generally limited to a determination of whether the decision is arbitrary, capricious, or unreasonable or lacks fair support in the record." Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J. Super. 1, 14 (App. Div. 2013) (citing Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 223-24 (2009)). In reviewing an administrative decision, we ordinarily recognize the agency's expertise in its particular field. Ibid.

We are satisfied from our review of the record that the Board's decision is not arbitrary, capricious or unreasonable and is supported by sufficient credible evidence in the record. R. 2:11-3(e)(1)(D). Accordingly, we affirm the Board's determination substantially for the reasons stated by the ALJ, which were adopted by the Board. We add the following.

Guided by our standard of review, we first look to the statute and regulation that govern this dispute. N.J.S.A. 43:15A-43 provides, in pertinent part, that

[a] member who has not attained age 65 shall, upon the application of the head of the department in which he is employed or upon his own application . . . be retired by the board of trustees, if said employee is 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.

A member's duties are considered to authorize or require travel from his or her residence to a location other than a regularly assigned office or workplace of the employer when

The member's regular or assigned duties involve field work which requires or authorizes the member to travel to locations other than a regularly assigned office or workplace of the employer to perform his or her duties and do not require the member to report to a regularly assigned office or workplace before or after traveling to other locations. Travel by the member between a regularly assigned office or workplace of the employer and the place of residence of the member is not considered part of the member's duties.

[N.J.A.C. 17:2-6.27(c)(1) (emphasis added).]

Shapiro argues that her accident occurred as a result of her regular or assigned duties when she was driving home, "where she usually completed more work." She relies on Kasper v. Bd. of Trs., Teachers' Pension & Annuity Fund, 164 N.J. 564 (2000), which considered a claim for accidental disability benefits under an analogous statute, N.J.S.A. 18A:66-39(c). Citing Kasper, supra, 164 N.J. at 585-86, she contends that the Court defined "regular and assigned duties" to include "all activities engaged in by the employee in connection with his or her work" and "necessary [concomitants]," such as "bathroom breaks." We conclude that Shapiro's argument relies on a strained interpretation of Kasper, the facts of which are clearly distinguishable from those present here.

In Kasper, the employee arrived early to distribute media materials to classrooms prior to the official start of the school day. Her early arrival had been approved by the principal. As she was walking up the steps to the school, she was assaulted and suffered injury. The disability statute authorized a benefit for those disabled by a "traumatic event occurring during and as a result of the performance of his regular or assigned duties." N.J.S.A. 18A:66-39(c). The Court allowed the benefit, because the employee was "on premises" performing "an activity preparatory but essential to the actual duty" of the employee. Kasper, supra, 164 N.J. at 585. Significantly, however, the employee was required by the principal to distribute the media materials prior to the official start of classes. Id. at 570.

The Court in Kasper was careful to note that legislative amendments to the pension statutes had been adopted

[T]o reestablish the integrity of the premises rule and eliminate the judicially created exceptions to the going and coming rule. Thus, . . . in order to qualify for an accidental disability pension, the accident must occur on premises owned or controlled by the employer, and not during activities encompassed within the myriad of coming and going exceptions that had sprung up. To assure that result, the Legislature added the caveat that the accident had to take place "during and as a result of the performance of [the employee's] regular [or] assigned duties," a standard that could not be satisfied by a commuting accident.

[Id. at 580.]

Kasper is clearly distinguishable from the present case. Completing reports at home, or preparing for the next day's tasks, while commendable, were not required duties for Shapiro. Further, she was not "on premises" when the accident occurred. Consequently, Kasper does not mandate the conclusion advocated by Shapiro.

Turning to N.J.A.C. 17:2-6.27(c)(1), this regulation expressly provides that a field employee's travel from a regularly assigned office to the employee's residence is not considered part of the employee's "duties." Because Shapiro's accident occurred while she was traveling from her regularly assigned office to her residence after being in the field, she was not engaging in any "duties," as defined by N.J.A.C. 17:2-6.27(c)(1). Consequently, she is ineligible for accidental disability retirement benefits.

Affirmed.