JENNIFER ANDERSON v. BOARD OF TRUSTEES, TEACHERS PENSION AND ANNUITY FUND

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0745-17T2

JENNIFER ANDERSON,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES, TEACHERS'
PENSION AND ANNUITY FUND,

          Respondent-Respondent.


                    Submitted November 28, 2018 – Decided January 3, 2019

                    Before Judges Currier and Mayer.

                    On appeal from the Board of Trustees of the Teachers'
                    Pension and Annuity Fund, Department of Treasury.

                    Chamlin, Rosen, Uliano & Witherington, attorneys for
                    appellant (James J. Uliano, of counsel; Andrew T.
                    Walsh, on the brief).

                    Gurbir S. Grewal, Attorney General, attorney for
                    respondent (Melissa H. Raksa, Assistant Attorney
                    General, of counsel; Christina Cella, Deputy Attorney
                    General, on the brief).

PER CURIAM
      Petitioner Jennifer Anderson appeals from a final determination of the

Board of Trustees (Board), of the Teachers' Pension and Annuity Fund (TPAF),

finding she was not eligible for accidental disability retirement benefits. We

affirm.

      The facts are essentially undisputed. Anderson was employed by the

Keansburg Board of Education as a special education teacher. After arriving at

school and parking in the school's parking lot, Anderson was struck while in the

crosswalk of the driveway separating the parking lot and school's sidewalk by a

motor vehicle driven by a parent, who had just dropped her children off at

school. Anderson's injuries left her unable to perform her duties as a teacher.

      Anderson filed an application for accidental disability retirement benefits.

Her application was granted for ordinary disability retirement benefits, but not

for accidental benefits. Anderson then appealed to the Office of Administrative

Law. Both parties moved for summary decision.

      The Administrative Law Judge (ALJ) concluded that at the time the

traumatic event occurred, Anderson had not completed her commute or entered

the school premises, reasoning "[s]he had not yet signed in or reported for duty."

Therefore, the ALJ found "the injury did not occur during and as a result of her

regular or assigned duties," precluding Anderson from accidental disability


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retirement benefits. After the parties filed exceptions and replies, the Board

affirmed the ALJ's decision denying the accidental benefit.

       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.

       Pursuant to  N.J.S.A. 43:15A-43, a public employee 1 who 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," may receive an

accidental disability pension. In Richardson v. Board of Trustees, Police and

Firemen's Retirement System,  192 N.J. 189 (2007), the Supreme Court held that

in order to qualify for accidental disability retirement benefits, a member of the

retirement system must establish that she is "permanently and totally disabled




1
    A TPAF member is held to the same standard. See  N.J.S.A. 18A:66-39(c).
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. . . as a direct result of a traumatic event . . . [that] occurred during and as a

result of the member's regular or assigned duties." Id. at 212-13.

      Anderson argues the Board erred in affirming the ALJ's decision and

determination that she was not in the course of her regular or assigned duties,

because she completed her commute, was on school premises at the expected

time, spoke with two students in the parking lot, and was approaching the school

building when she was injured. Anderson asserts that Kasper v. Board of

Trustees of the Teachers' Pension & Annuity Fund,  164 N.J. 564 (2000),

compels a different finding by this court. We disagree.

      In Kasper, the Court explained the meaning of the "during and as a result"

provision of the statute:

            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

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            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.

            [Id. at 587-88.]

      Saliently, the Court found that to qualify for the benefits, an employee

cannot merely be "coming or going" to work. Id. at 581. Rather, the employee

"must be engaged in his or her employment duties on property owned or

controlled by the employer in order to qualify for an accidental disability

pension." Ibid. The Court held the statute excludes "employees who arrive at

work long before the required hour for a card game in the teachers' lounge, to

avoid traffic, read the paper, pay bills, or socialize, as well as employees who

return to work after hours to retrieve a left-behind wallet or date book." Id. at

587. Thus, in order to qualify for accidental disability benefits, the employee

must satisfy the statutory criteria of being on the employer's premises and

performing a function causally connected to their work. Id. at 588.

      In Kasper, the claimant, an education media specialist, arrived at work

forty-five minutes prior to school opening. Id. at 570. While on the steps

entering the front door of the school, the claimant was accosted by a male who

stole her purse. Id. at 571. During the incident she was pulled to the ground

and injured. Ibid. The Court found that since the claimant had "parked her car,

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crossed the street to the school, and was negotiating the stairs" of the school

when the incident occurred, she was in the performance of her duties and that

her commute was completed. Id. at 588. The Court also considered that the

principal required the claimant to arrive early to distribute media materials. Id.

at 571, 588.

      We find, as did the Board, that Anderson was not engaged in any job-

related duties when she was struck in the cross-walk on her way to the school.

We cannot agree that speaking to a student in the parking lot, while unloading

items from her car, amounted to the performance of a function connected to her

work assignment.      Anderson had not yet reached the premises of her

employment, her commute was not complete and, therefore, the injury was not

causally connected to her work.

      Predicated upon the factual scenario presented here, when considered with

controlling law, we are in accord with the Board that Anderson's claim does not

satisfy the criteria for eligibility for accidental benefits. As such, we conclude

the Board's decision was not arbitrary, capricious or unreasonable and was

supported by sufficient credible evidence. R. 2:11-3(e)(1)(D). Accordingly,

there is no basis to alter the Board's decision. See In Re Young,  202 N.J. 50, 70

(2010).


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Affirmed.




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