THERESA HICKSON VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4806-17T2
THERESA HICKSON,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,
Respondent-Respondent.
___________________________
Argued September 23, 2019 – Decided October 2, 2019
Before Judges Geiger and Natali.
On appeal from the Board of Trustees of the Police and
Fireman's Retirement System, Department of the
Treasury, PFRS No. 3-74255.
Samuel Michael Gaylord argued the cause for appellant
(Gaylord Popp, LLC, attorneys; Samuel Michael
Gaylord, on the brief).
Amy Chung, Deputy Attorney General argued the cause
for respondent (Gurbir S. Grewal, Attorney General,
attorney; Melissa H. Raksa, Assistant Attorney
General, of counsel; Stephanie Kozic, Deputy Attorney
General, on the brief).
PER CURIAM
Petitioner Theresa Hickson appeals from a May 14, 2018 final decision of
respondent the Board of Trustees (Board), of the Police and Firemen's
Retirement System (PFRS) denying her application for accidental disability
retirement benefits. We affirm.
The facts are essentially undisputed. Hickson was employed by the New
Jersey Department of Corrections as a Senior Corrections Officer assigned to
New Jersey State Prison. Her usual shift began at 7:00 a.m. and concluded at
2:00 p.m. On September 13, 2012, she drove her own car and arrived at the
employee parking lot at 5:45 a.m. The State owns and controls the parking lot,
which is located two blocks from the prison. Hickson parked and began walking
across the lot when she was struck by a vehicle. At the time she was in uniform
but did not have a radio. She suffered injuries to her left knee, tailbone, and
hands. Hickson walked approximately two blocks to the prison entrance and
reported the incident to her shift commander. She was sent to the hospital for
examination and treatment.
Hickson applied for accidental disability retirement. Pertinent to this
appeal, the Board determined the reported disability was "not the direct result
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of a traumatic event, as the event is not caused by a circumstance external to
[Hickson]," but rather "is the result of a pre-existing disease alone or a pre-
existing disease that [was] aggravated or accelerated by the work effort." The
Board found the accident "did not occur during and as a result of your regular
or assigned duties."
The Board granted Hickson ordinary disability retirement benefits but
denied accidental disability retirement benefits. Hickson appealed the Board's
denial of accidental disability retirement benefits. The matter was transferred
to the Office of Administrative Law as a contested case. The trial was bifurcated
so that "the only issue to be determined was whether or not [Hickson] was
injured on a premise owned or controlled by the employer during and as a result
of her regular or assigned duties as required by N.J.S.A. 43:15A-43."
The Administrative Law Judge (ALJ) conducted a one-day hearing;
Hickson was the only witness. The record was closed after submission of
written closing arguments. The ALJ issued an April 19, 2018 written Initial
Decision affirming the Board's determination that petitioner is not eligible for
accidental disability retirement benefits. The ALJ made the following findings:
In her application for accidental retirement
benefits, Hickson wrote that she was struck by a car
while in the parking lot of the prison; that she sustained
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injuries; and that she can no longer perform her regular
or assigned duties.
At the hearing, Hickson provided greater detail.
Hickson testified that she arrived at the employee
parking lot at approximately 5:45 a.m. She parked at
the fence and, as she traversed a portion of the parking
lot near the apron of the entrance, she was struck by a
car.
Hickson described her job duties as providing
"safety and security of the inmates" as well as
"supervising inmates." She indicated the role of a
corrections officer as "you're always on duty." "If you
see something happening you have to respond to it
because all of the public is going to expect you to do
something because you're in uniform." She noted that
they used to tell you if "you're on your way home if
something happens you have to do something."
More significantly, Hickson was required to
report to work in full uniform but did not have a radio
on her person at that time because it was located in the
booth where her shift was to begin. She was never
issued any work vehicle and simply drove her personal
car.
The ALJ noted "the traumatic event must have occurred during and as a
result of the member's regular or assigned duties." The ALJ distinguished the
facts in this case from those in Kasper v. Board of Trustees of the Teachers’
Pension and Annuity Fund, 164 N.J. 564 (2000), Pollara v. Board. of Trustees.
of the Police and Fireman's Retirement System, 183 N.J. Super. 505 (App. Div.
1982), and In re Carlson, 174 N.J. Super. 603 (App. Div. 1980). Unlike the
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petitioners in those cases, the ALJ found Hickson "was in the process of walking
the approximate[ly] two blocks to the prison when she was struck by the car
while still in the parking lot." She was not providing "safety and security of the
inmates" or "supervising inmates" in the parking lot. The ALJ noted that
"[u]nlike Pollara, Hickson had not already started the actual performance of her
regular or assigned duties. And unlike Kasper, Hickson was not engaged in an
activity preparatory but essential to that duty." Thus, "she was not injured
'during and as a result of the performance of her regular or assigned duties.'"
(Quoting N.J.S.A. 43:15A-43(a)).
Hickson filed exceptions to the Initial Decision. The Board adopted the
Initial Decision and affirmed the denial of accidental disability retirement
benefits. This appeal followed. Hickson argues the accident occurred during
and in the course of her regular and assigned job duties.
"Our review of administrative agency action is limited." Russo v. Bd. of
Trs., Police & Fireman's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re
Herrmann, 192 N.J. 19, 27 (2007)). "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 & Fireman's Ret. Sys., 431 N.J. Super. 1, 14 (App.
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Div. 2013) (citing Hemsey v. Bd. of Trs., Police & Firemen’s Ret. Sys., 198
N.J. 215, 223 (2009)). The factual "findings of an ALJ 'are considered binding
on appeal, when supported by adequate, substantial and credible evidence.'"
Oceanside Charter Sch. v. N.J. State Dep't of Educ., 418 N.J. Super. 1, 9 (App.
Div. 2011) (quoting In re Taylor, 158 N.J. 644, 656 (1999)). "However, we are
not bound by an agency’s statutory interpretation or other legal determinations."
Mattia v. Bd. of Trs., Police & Fireman's Ret. Sys., 455 N.J. Super. 217, 221
(App. Div. 2018) (citing Russo, 206 N.J. at 14, 27).
A PFRS member may be retired on an accidental disability pension if the
"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." N.J.S.A. 43:15A-43(a). See also Richardson v. Bd. of Trs.,
Police & Fireman's Ret. Sys., 192 N.J. 189, 213–15 (2007) (holding that in order
to qualify for such benefits, a member of the retirement system must establish,
among other things, that "the traumatic event occurred during and as a result of
the member’s regular or assigned duties").
Hickson argues the Board erred by determining the accident did not occur
during and in the course of her regular and assigned job duties. We disagree.
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Shortly after the Board rendered its final decision, we held that a Senior
Correction Officer who drove to work in his own car, parked his car in the
employee parking lot, exited the car, then slipped and fell on ice in the parking
lot as he walked towards the entrance portal of the prison to begin his shift, "had
not yet completed his commute when he was injured, and was not performing
any function connected to his work assignment when he was injured." Mattia,
455 N.J. Super. at 219, 223. We noted Mattia "was not chasing an escapee, but
merely walking from his car to the prison entrance, when he slipped and fell on
ice in the parking lot." Id. at 223-24.
The same reasoning applies here. Hickson's shift had not yet begun. She
was walking across the parking lot when struck by a car driven by another
employee. She was approximately two blocks from the entrance to the prison.
She was not chasing an escapee or performing any other job duty. Hickson was
not assigned any essential preparatory work-related task at the time of her injury.
Thus, her "injury was not causally connected to [her] work." Id. at 224. She
was simply going to work.
Hickson argues the Board misapplied the law in disqualifying her from
accidental disability retirement benefits, and Kasper compels a different result.
We are unpersuaded by this argument.
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In Kasper, the employee had "parked her car, crossed the street to the
school, and was negotiating the stairs" of the school when the incident occurred,
therefore her commute was completed and she was in the performance of her
duties when she was injured. Id. at 588. The Kasper Court made clear that to
qualify for accidental disability retirement benefits, an employee cannot merely
be coming to, or going from work. Id. at 581. Rather, the employee "must be
engaged in his or her employment duties on property owned or controlled by the
employer." Ibid. Therefore, "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." Mattia,
455 N.J. Super. at 223 (citing Kasper, 164 N.J. at 588). Hickson does not meet
these requirements.
We conclude from our review of the record that the Board's decision was
not arbitrary, capricious, or unreasonable. The ALJ's findings, which the Board
adopted, are fully supported by the stipulated facts in the record. Hickson's
claim does not satisfy the criteria for eligibility for accidental disability
retirement benefits. Accordingly, there is no basis to disturb the Board's
decision. See In re Young, 202 N.J. 50, 71 (2010) (upholding an agency decision
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where "there was substantial credible evidence in the record as a whole to
support the agency’s findings").
Affirmed.
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