JUSTINE BRANHAM v. BOARD OF TRUSTEES POLICE AND FIREMEN'S RETIREMENT SYSTEM

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2345-17T4

JUSTINE BRANHAM,

         Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,

         Respondent-Respondent.


                   Argued February 13, 2019 - Decided March 21, 2019

                   Before Judges Accurso and Vernoia.

                   On appeal from the Board of Trustees of the Police and
                   Firemen's Retirement System, Department of Treasury,
                   PFRS No. 3-10-051654.

                   Michael P. DeRose argued the cause for appellant
                   (Crivelli & Barbati, LLC, attorneys; Michael P.
                   DeRose, on the briefs).

                   Stephanie Kozic, Deputy Attorney General, argued the
                   cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Melissa H. Raksa, Assistant
            Attorney General, of counsel; Stephanie Kozic, on the
            brief).

PER CURIAM

      Justine Branham appeals from a final decision of the Board of Trustees of

the Police and Firemen's Retirement System, denying her application for

accidental disability retirement benefits. The Board determined Branham was

not injured during and as a result of her regular or assigned duties. See  N.J.S.A.

43:16A-7(1). Because we find this case indistinguishable from Mattia v. Board

of Trustees, Police & Firemen's Retirement System,  455 N.J. Super. 217 (App.

Div. 2018), we affirm.

      The essential facts are undisputed. As the Administrative Law Judge

explained in his statement of the case, Branham, an eighteen-year veteran of the

Newark Police Department, "became disabled when she slipped and fell on the

stairs to work, just before her shift began." The Board determined Branham was

totally and permanently disabled as a direct result of the fall and physically or

mentally incapacitated from the performance of her usual duties. The Board

also determined the incident was identifiable as to time and place, was

undesigned and unexpected, caused by an external circumstance, not the result

of a pre-existing disease and not the result of willful negligence.



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      Notwithstanding those findings, the Board denied Branham's application

for accidental disability retirement benefits because "the event did not occur

during and as a result of [her] regular or assigned duties" and instead awarded

her ordinary disability retirement benefits. Branham appealed, and the matter

was transferred to the Office of Administrative Law (OAL) for a hea ring as a

contested case.

      In the OAL, Branham testified that although her shift was from 8:00 a.m.

to 4:00 p.m., she was required to report for work in full uniform by 7:45 a.m.

and could be assigned to respond to a service call while en route from her home

to the precinct. She did not receive such a call on her way to work on the

morning of the accident, and although she left home early, snow slowed her

commute. Branham testified she drove her car through the gate, parked in the

lot reserved for employees and was walking up the stairs to the precinct when

she slipped and fell on ice a minute or so after 8:00 a.m. Because she was in

uniform and prepared to respond to a service call as required, Branham asserted

she was already on duty when she fell on the stairs "but had simply not been

assigned anything yet."

      Based on that testimony, the ALJ found "when Branham left her home

between 7:20 a.m. and 7:30 a.m." on the day of the accident, "she was already


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on duty, awaiting assignment." He concluded Branham "became disabled doing

what she was expected to do." Finding Branham was "engaged in an activity

preparatory but essential to [her regular or assigned] duty," the ALJ concluded

"Branham was injured 'during and as a result of the performance of her regula r

or assigned duties' and is entitled to accidental disability benefits."

      The Board disagreed. It rejected the ALJ's factual finding that Branham

was "already on duty, awaiting assignment" when she left her home on the day

of the accident. The Board noted Branham was not required to report for work

before 7:45 a.m. in advance of her 8:00 a.m. shift. It found that "Branham might

be available for assignment as needed on her drive to work . . . does not alter

her normal shift start time nor . . . place her on duty during her commute every

day." Although adopting the remainder of the ALJ's factual findings, the Board

rejected the ALJ's legal conclusion that Branham was engaged in her regular or

assigned duties when she was injured, concluding it was without support in the

record.

      Specifically, the Board found Branham "was still commuting when she

slipped and fell in the parking lot because she had not yet begun her formal

workday." It concluded that simply because Branham "was in her uniform and

could be given an assignment does not mean that she was performing a function


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connected to her work at the time of her injury. . . . Branham was simply walking

up the stairs to enter the . . . precinct."

      Branham appeals, arguing the Board's rejection of the ALJ's factual

findings and legal conclusions was "arbitrary, capricious and inconsistent with

the governing law," and specifically Kasper v. Board of Trustees of the

Teachers' Pension and Annuity Fund,  164 N.J. 564 (2000). We disagree.

      Our role in reviewing the decision of an administrative agency is limited.

In re Carter,  191 N.J. 474, 482 (2007). We accord a strong presumption of

reasonableness to an agency's exercise of its statutorily delegated responsibility,

City of Newark v. Nat. Res. Council,  82 N.J. 530, 539 (1980), and defer to its

fact finding, Utley v. Bd. of Review,  194 N.J. 534, 551 (2008). We will not

upset the determination of an administrative agency absent a showing that it was

arbitrary, capricious, or unreasonable; that it lacked fair support in the evidence;

or that it violated legislative policies. In re Musick,  143 N.J. 206, 216 (1996)

(citing Campbell v. Dep't of Civil Serv.,  39 N.J. 556, 562 (1963)).

      Our public pension systems are "bound up in the public interest and

provide public employees significant rights which are deserving of

conscientious protection." Zigmont v. Bd. of Trs., Teachers' Pension & Annuity

Fund,  91 N.J. 580, 583 (1983).          Because pension statutes are remedial in


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character, they are liberally construed and administered in favor of the persons

intended to be benefited thereby.      Klumb v. Bd. of Educ. of Manalapan-

Englishtown Reg'l High Sch. Dist.,  199 N.J. 14, 34 (2009).

      In order to qualify for ordinary disability retirement benefits, a member

must satisfy the requirements of  N.J.S.A. 43:16A-6(1), which provide that the

member must be mentally or physically incapacitated for the performance of

usual duty and of any other duty the member's department would assign and that

such incapacity is likely to be permanent. To be eligible for the enhanced benefit

of an accidental disability pension, the member must further show that the

member 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 and that such disability was not the result of the member's willful

negligence."  N.J.S.A. 43:16A-7(1).

      As we recently explained in Mattia,

            to qualify for accidental disability retirement benefits,
            an employee cannot merely be coming to, or going from
            work. Rather, the employee "must be engaged in his or
            her employment duties on property owned or controlled
            by the employer." In sum, in order to qualify for
            accidental disability benefits, employees must satisfy
            the statutory criteria that they were on the work
            premises and performing a function causally connected
            to their work.


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            [ 455 N.J. Super. at 223 (quoting Kasper,  164 N.J. at
           581) (citations omitted).]

      Like the corrections officer in Mattia who fell in the parking lot on his

way into work, Branham does not qualify for accidental disability retirement

benefits because she was still on her commute and had yet to report to her desk

sergeant to receive the day's assignments. See id. at 219. She was thus not

performing any function connected to her work assignment when she was

injured ascending the steps to the precinct on her way into work. Kasper is

distinguishable because the petitioner in that case was on the school grounds to

carry out an assignment from her principal requiring her presence before the

start of the workday. See Kasper,  164 N.J. at 570-71.

      As the Board's decision is supported by the evidence in the record and in

accordance with controlling law, there is no basis for us to alter the Board's

conclusion denying Branham's application for accidental disability retirement

benefits. See In re Young,  202 N.J. 50, 70-71 (2010).

      Affirmed.




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