MICHALENE BOWMAN v. TEACHERS'PENSION AND ANNUITY FUND
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1211-16T3
MICHALENE BOWMAN,
Petitioner-Appellant,
v.
TEACHERS'PENSION AND
ANNUITY FUND,
Respondent-Respondent.
________________________________
Argued November 14, 2017 – Decided December 27, 2017
Before Judges Hoffman and Gilson.
On appeal from the Board of Trustees,
Teachers' Pension and Annuity Fund, TPAF No.
1-10-147277.
Daniel J. Zirrith argued the cause for
appellant (Law Offices of Daniel J. Zirrith,
LLC, attorneys; Jeffrey J. Berezny, of counsel
and on the brief; Daniel J. Zirrith, on the
brief).
Eileen S. Den Bleyker, Senior Deputy Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Melissa H. Raksa, Assistant Attorney
General, of counsel; Christina Lavecchia,
Deputy Attorney General, on the brief).
PER CURIAM
A school nurse tripped, fell, and severely injured herself
on school property during her normal work hours. She applied for
accidental disability retirement benefits based on cognitive
injuries she suffered as a result of her fall. The Board of
Trustees, Teachers' Pension and Annuity Fund (Board) found that
she was totally and permanently disabled, but denied her accidental
disability retirement benefits, reasoning that the nurse was not
on school premises when she fell. The Board, therefore, granted
her ordinary disability retirement benefits.
The school nurse, petitioner Michalene Bowman, appeals from
the October 11, 2016 final administrative agency decision by the
Board. We reverse because an administrative law judge (ALJ) found
that Bowman had been injured on school property during her normal
work day and, thus, her disability occurred during and as a result
of her regular or assigned duties. The Board adopted the ALJ's
factual findings, but reached a different legal conclusion. Here,
however, the legal conclusion is dependent on the factual findings.
Accordingly, we remand with the direction that the Board award
Bowman accidental disability retirement benefits.
I.
Bowman was a registered nurse who worked at a school in the
City of Orange. Her normal work hours were from 8:15 a.m. to 3:00
2 A-1211-16T3
p.m., with a lunch break from 1:00 to 1:30 p.m. Bowman was not
required to take her lunch on school grounds, and she sometimes
took her lunch at different times depending on whether students
needed her care.
On April 14, 2010, Bowman took her lunch break at 2:30 p.m.
She planned to retrieve her lunch from her car, which was parked
on the street in front of the school. As she was walking on the
paved walkway on school premises, she tripped and fell. When she
fell, she struck her head, and sustained cognitive injuries.
In October 2011, Bowman applied for accidental disability
retirement benefits based on her cognitive injuries. The Board
denied her application, but granted her ordinary disability
retirement benefits. Bowman administratively appealed, and the
Board transferred the matter to the Office of Administrative Law
for a hearing.
An ALJ conducted a two-day hearing, taking testimony from
Bowman and three medical experts. Based on the credited testimony
of one of the medical experts, the ALJ found that Bowman's
disability was not the result of a pre-existing condition and,
thus, was external to Bowman. The ALJ also found that Bowman fell
on school property during her normal work hours. In that regard,
Bowman testified that she was walking to her car, but was still
on school property when she fell. In support of that testimony,
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Bowman submitted a photograph showing the school walkway and marked
the location of her fall. Based on that undisputed testimony, the
ALJ found:
[T]he record reflects that [Bowman] was on her
way to retrieve her lunch from her car. Her
intent was to return immediately to her
office. It is further noted that Bowman
needed to retrieve her lunch from her car
because she was unable to eat lunch at the
scheduled time, which she had not contemplated
when she began the school day. She was
required to remain at work beyond her
expectation in order to complete her assigned
duties and had no discretion in the matter.
She was, at the time of the incident, 'within
the confines of the work day at the work
location' and as such, was in the midst of a
'necessary concomitant' of the performance of
her assigned task, as contemplated by Kasper
[v. Bd. of Trs. of the Teachers' Pension &
Annuity Fund,
164 N.J. 564 (2000)]. Under
these conditions, I therefore CONCLUDE that
the traumatic event of April 14, 2010, which
caused [Bowman's] disability, occurred during
and as a result of her regular or assigned
duties.
In reaching his conclusion, the ALJ relied on the Supreme
Court's decision in Kasper. Specifically, he cited the Court's
definition of the phrase "occurring during and as a result of the
performance of his [or her] regular or assigned duties." In
defining that phrase, the Supreme Court stated that the phrase
included "on-premises lunch and restroom breaks that are necessary
concomitants of an employee's performance of his or her regularly
4 A-1211-16T3
assigned tasks, so long as they occur within the confines of the
workday at the work location." Kasper,
164 N.J. at 586 n.7.
Thus, in an initial decision issued on July 29, 2016, the ALJ
recommended that the Board grant Bowman accidental disability
retirement benefits. The Board filed exceptions to the ALJ's
decision.
On October 11, 2016, the Board issued its final agency
decision. The Board "adopt[ed]" the ALJ's findings of fact, but
rejected the ALJ's conclusion of law. Specifically, the Board
reasoned that the Kasper Court's definition of on-premises lunch
breaks was dicta and was not binding precedent. The Board then
stated that "Ms. Bowman was not on the premises of the school at
the time of the incident." In that regard, the Board reasoned:
[Bowman] had walked out of the school
building, down the steps and down the walkway;
she fell on the sidewalk while she was
approaching the parking lot. Ms. Bowman was
not in her office or even in the school
building when she tripped and fell. For the
foregoing reasons, the Board rejects the ALJ's
Conclusion of Law that the incident occurred
during and as a result of Ms. Bowman's regular
or assigned duties and his determination that
Ms. Bowman had satisfied the statutory
criteria for an award of accidental disability
pursuant to
N.J.S.A. 18A:66-39.
The Board, therefore, rejected the ALJ's recommendation and
affirmed its initial denial of accidental disability retirement
benefits.
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Bowman appeals the Board's final decision arguing that the
ALJ found that she had fallen on school property during normal
school hours. Bowman then contends that those facts established,
as a matter of law, that her accident occurred during and as a
result of the performance of her regularly assigned duties. We
agree and, therefore, we reverse the Board's decision.
II.
Our review of an agency's final decision is limited. Circus
Liquors, Inc. v. Governing Body of Middletown Twp.,
199 N.J. 1, 9
(2009); In re Carter,
191 N.J. 474, 482 (2007). An administrative
agency's final quasi-judicial decision will be sustained unless
there is a clear showing that it is arbitrary, capricious, or
unreasonable, or that it lacks factual support in the record. In
re Herrmann,
192 N.J. 19, 27-28 (2007). An agency's interpretation
of a statute or case law, however, is subject to de novo review.
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys.,
206 N.J. 14,
27 (2011) (citing Toll Bros., Inc. v. Twp. of W. Windsor,
173 N.J.
502, 549 (2002)). Thus, in reviewing an agency's decision, we
also examine whether the agency erred in applying the law to the
facts. Twp. Pharmacy v. Div. of Med. Assistance & Health Servs.,
432 N.J. Super. 273, 283-84 (2013) (citing In re Stallworth,
208 N.J. 182, 194 (2011)).
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Moreover, an agency can reject and modify an ALJ's initial
decision, but its authority to do so is limited. Specifically,
regulations require that when an agency rejects an ALJ's decision,
it must clearly state the basis for that rejection and it must
cite specific evidence supporting the agency's final decision and
interpretation of the law. N.J.A.C. 1:1-18.6(b).
Here, the Board expressly adopted the ALJ's findings of fact.
Consequently, the issue presented is a question of law.
Specifically, the question on this appeal is whether a school
employee suffers a traumatic event occurring "during and as a
result of the performance of his [or her] regular or assigned
duties" when the accident occurs on a lunch break, on school
property, and during normal work hours.
To establish eligibility for accidental disability retirement
benefits, the governing statute requires an applicant to be
permanently or totally disabled "as a direct result of a traumatic
event occurring during or as a result of the performance of his
[or her] regular or assigned duties . . . ."
N.J.S.A. 18A:66-
39(c). In this case, the Board does not dispute that Bowman is
permanently and totally disabled by a traumatic event that was
caused by circumstances external to her and that did not result
from Bowman's willful negligence. The Board also does not dispute
that Bowman is mentally or physically incapable of performing her
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usual assigned duties. Instead, the only issue on this appeal is
whether the traumatic event, here a fall resulting in cognitive
injury, occurred during and as a result of Bowman's regular or
assigned duties.
In Kasper, our Supreme Court addressed the meaning of the
phrase "during and as a result of the performance of his [or her]
regular or assigned duties." Kasper,
164 N.J. at 587 (quoting
N.J.S.A. 18A:66-39(c)). In that regard, the Court explained:
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 [or her]
regular or assigned duties.'
[Ibid.]
The Court then went on to "define more precisely the kinds of
functions that will entitle an employee to an accidental disability
pension." Id. at 585. Thus, the court held:
We begin with the regular work day that we
define as the period during which the employee
is required to be on the employer's premises
to perform regularly assigned duties.
Regularly assigned duties include activities
such as a teacher teaching, a police officer
policing, and a firefighter fighting fires.
However, the concept is broader. Common sense
dictates that the performance of an employee's
actual duties incorporates all activities
engaged in by the employee in connection with
his or her work, on the employer's premises,
8 A-1211-16T3
from the formal beginning to the formal end
of the work day.
[Id. at 585-86.]
In a footnote, the Court went on to state that regularly assigned
duties "[i]ncluded [] 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.
In Kasper, the Court awarded an accidental disability pension
to an educational media specialist employed by a public 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 because
the school principal required that certain media material be
distributed to various classrooms prior to the official start of
classes. Id. at 570. The Court concluded that the specialist was
engaged in conduct that was necessary to her work and that she
qualified for accidental disability pension benefits.
The holding in Kasper controls the outcome in this case.
Here, the Board accepted the ALJ's factual findings. The ALJ
found that Bowman tripped on school property during normal school
hours. The Board, however, rejected the ALJ's conclusion that
Bowman's accident entitled her to accidental disability retirement
9 A-1211-16T3
benefits. The Board reached that conclusion on two different
grounds.
First, the Board reasoned that the on-premises lunch break
discussion in Kasper was dicta and was not binding precedent.
Although not specifically articulating the resulting conclusion,
the Board suggested that it could find that Bowman's accident was
outside the scope of her normal duties. Such a conclusion would
be wrong as a matter of law. The Supreme Court's language in
Kasper was not dicta. See State v. Rose,
206 N.J. 141, 183 (2011)
(explaining that "an expression of opinion on a point involved in
a case . . . deliberately mentioned by the court, although not
essential to the disposition of the case . . . becomes
authoritative [] when it is expressly declared by the court as a
guide for future conduct").
Moreover, to the extent that the language in Kasper could be
construed dictum, we hold that the rationale applies to this case
and that an on-premises lunch break is a necessary concomitant of
an employee's performance of his or her regularly assigned tasks
so long as it occurs within the confines of the work day at the
work location. See State v. Dabas,
215 N.J. 114, 136-37 (2013)
(noting that both appellate and trial courts consider themselves
bound by pronouncements of the Supreme Court, whether classified
as dictum or not). That work location, moreover, includes the
10 A-1211-16T3
entire interior and exterior of the school property. See Kasper,
164 N.J. at 590 (Coleman, J., concurring) ("When a single employer
occupies an entire structure, that entire structure, including the
exterior and interior steps, comprise the place of employment.").
Second, the Board expressly found that Bowman was not on the
premises of the school at the time of the incident. That finding
is in direct conflict with the ALJ's factual finding. Furthermore,
there are no facts in the record that would support that finding.
Determinations that are "predicated on unsupported findings [are]
the essence of arbitrary and capricious action." In re Certificate
of Need of the Visiting Nurse Assoc. of Sussex Cty.,
302 N.J.
Super. 85, 95 (App. Div. 1997).
In summary, the Board's final decision was based either on
an unsupported factual finding or an incorrect interpretation of
the law. We, therefore, reverse the Board's decision. Because
the Board adopted the factual findings of the ALJ, and because the
ALJ found that Bowman's injuries occurred on school property during
school hours, Bowman is entitled to accidental disability
retirement benefits. Consequently, we remand this matter with the
direction that the Board award Bowman accidental disability
retirement benefits effective November 1, 2011, the date that she
retired.
11 A-1211-16T3
Reversed and remanded. We do not retain jurisdiction.
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