KRISTY BOWSER VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POLICE AND FIREMEN'S RETIREMENT SYSTEM) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0568-16T4
KRISTY BOWSER,
Petitioner-Appellant, APPROVED FOR PUBLICATION
v. June 13, 2018
APPELLATE DIVISION
BOARD OF TRUSTEES, POLICE AND
FIREMEN'S RETIREMENT SYSTEM,
Respondent-Respondent.
__________________________________
Argued May 14, 2018 – Decided June 13, 2018
Before Judges Sabatino, Ostrer and Rose.
On appeal from the Board of Trustees of the
Police and Firemen's Retirement System,
Department of the Treasury, PFRS No. 3-10-
050623.
Samuel M. Gaylord argued the cause for
appellant (Gaylord Popp, LLC, attorneys;
Samuel M. Gaylord, on the brief).
Robert E. Kelly, Deputy Attorney General,
argued the cause for respondent (Gurbir S.
Grewal, Attorney General, attorney; Melissa
H. Raksa, Assistant Attorney General, of
counsel; George E. Loeser, Deputy Attorney
General, on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
The Police and Firemen's Retirement System Board of
Trustees denied Kristy Bowser an accidental disability pension.
Without dispute, she was "permanently and totally disabled as a
direct result of a traumatic event" at the Mercer County
Correctional Center (MCCC), where she was a correctional
officer. See N.J.S.A. 43:16A-7(1). She suffered her disabling
injury by falling on an icy patch near the MCCC's parking lot.
The sole question in Bowser's appeal is whether the Board erred
in finding that her fall did not "occur[] during and as a result
of the performance of [her] regular or assigned duties . . . ."
Ibid.
Bowser fell while retrieving feminine hygiene products from
her car. She needed them while, unexpectedly, serving a second
consecutive shift. We conclude she suffered her injury during
the equivalent of a restroom break "within the confines of the
workday at the work location." Kasper v. Bd. of Trs. of the
Teachers' Pension & Annuity Fund, 164 N.J. 564, 586 n.7 (2000).
The Supreme Court stated such restroom breaks are included
within "the performance of an employee's actual duties . . . ."
Id. at 585-86. We therefore reverse.
I.
Bowser was the sole witness in the hearing before the
Administrative Law Judge (ALJ). Her testimony was undisputed.
Bowser was a fourteen-year veteran of the Mercer County
Corrections department when the accident occurred. On the day
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of the accident, she had worked her assigned 11:00 p.m. to 7:00
a.m. shift overseeing inmates in a housing unit. During that
shift, her commander told her she had to work another eight-hour
shift on a detention floor, starting at 7:00 a.m., because
another officer "called out." At about 7:30 a.m., Bowser asked
a fellow officer on the detention floor to cover for her, as she
would if she had to use the restroom. Bowser needed to run to
her car to retrieve feminine hygiene products because she was
menstruating. As with a bathroom break, Bowser did not "clock
out" when she went to her car, and was paid for the break time.
Her car was parked on the MCCC grounds, in an area reserved
for corrections officers. On the way to her car, while walking
near an internal service road on MCCC grounds, she slipped on
black ice and fell. She was about fifteen to twenty feet from
the jail. Another officer who happened to be arriving helped
her get up. She continued to her car, then returned to the
building, went to the restroom, and "got [herself] back
together." Fifteen or twenty minutes later, her commander
relieved her for the day, as someone arrived to perform the
shift.
The Board stipulated that Bowser was totally and
permanently disabled from performing her regular and assigned
job duties. It also stipulated that her disability directly
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resulted from her fall, and her fall did not result from her
willful negligence. In his proposed decision, the ALJ found
that Bowser's injury was undesigned and unexpected, and it
occurred "during and as a result of the performance of [her]
regular or assigned duties." See N.J.S.A. 43:16A-7(1). In so
doing, the ALJ rejected the Board's initial position to the
contrary on both points.
In sum, the ALJ found that Bowser met the five requirements
for receiving an accidental disability pension, which the Court
identified in Richardson v. Board of Trustees, Police and
Firemen's Retirement System, 192 N.J. 189, 212-13 (2007):
1. that [s]he is permanently and totally
disabled;
2. as a direct result of a traumatic event
that is
a. identifiable as to time and place,
b. undesigned and unexpected, and
c. caused by a circumstance external to
the member (not the result of pre-existing
disease that is aggravated or accelerated by
the work);
3. that the traumatic event occurred during
and as a result of the member's regular or
assigned duties;
4. that the disability was not the result of
the member's willful negligence; and
5. that the member is mentally or physically
incapacitated from performing his [or her]
usual or any other duty.
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In its final decision denying Bowser an accidental
disability pension, the Board agreed that her injury was
undesigned and unexpected, but adhered to its view that the
injury did not arise "during and as a result of the performance
of [her] regular or assigned duties." N.J.S.A. 43:16A-7(1).
The Board premised its analysis on the Court's statement in
Kasper that an 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." Kasper, 164 N.J. at 581. The Board relied on two
unpublished decisions in which our court upheld the denial of
accidental disability pensions to public employees who suffered
disabling injuries in parking lots. Recognizing those decisions
involved employees coming to, or going from work, the Board
nonetheless concluded that an employee parking lot "is not
considered the employer's premises under Kasper." Therefore,
Bowser's injury on the way to the parking lot did not occur
"during and as a result of her regular or assigned duty."
This appeal followed.
II.
We will sustain an administrative agency's quasi-judicial
decision, as the Board made here, "unless there is a clear
showing that it is arbitrary, capricious, or unreasonable, or
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that it lacks fair support in the record." Russo v. Bd. of
Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). The
"search for arbitrary or unreasonable agency action" may involve
the question "whether the agency's action violates express or
implied legislative policies, that is, did the agency follow the
law . . . ." Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).
As the facts are undisputed, whether Bowser's injury
occurred "during and a result of her regular or assigned duties"
is a legal question of statutory interpretation, which we review
de novo. See Saccone v. Bd. of Trs. of Police and Firemen's
Retirement Sys., 219 N.J. 369, 380 (2014). We may give
"substantial deference to an agency's interpretation of a
statute that the agency is charged with enforcing," Richardson,
192 N.J. at 196, particularly when its interpretation involves a
permissible construction of an ambiguous provision, Kasper, 164
N.J. at 581-82, or the exercise of expertise, In re Alleged
Improper Practice, 194 N.J. 314, 332 (2008); A.Z. v. Higher
Educ. Student Assistance Auth., 427 N.J. Super. 389, 394 (App.
Div. 2012). However, we are "in no way bound by the agency's
interpretation of a statute or its determination of a strictly
legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85,
93 (1973).
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In this case in particular, we owe no deference to the
Board's decision, as the Board does not purport to interpret
anew the statute governing accidental disability pensions,
specifically, the provision requiring that disabling accidents
occur "during and as a result of the performance of [an
employee's] regular or assigned duties . . . ." N.J.S.A.
43:16A-7(1). Rather, the Board attempts to interpret the
Supreme Court's binding precedent in Kasper, and our court's
unpublished decisions, which do not bind us. An agency is
required to follow judicial precedent interpreting the statute
it implements. Twp. of Franklin v. Franklin Twp. PBA Local 154,
424 N.J. Super. 369, 378 (App. Div. 2012).
We owe no deference to an administrative agency's
interpretation of judicial precedent. "[A]gencies have no
special qualifications of legitimacy in interpreting Court
opinions. There is therefore no reason for courts – the
supposed experts in analyzing judicial decisions – to defer to
agency interpretations of the Court's opinions." Akins v. FEC,
101 F.3d 731, 741 (D.C. Cir. 1996) (en banc), vacated on other
grounds, 524 U.S. 11 (1998). See also Miklin Enters., Inc. v.
N.L.R.B., 861 F.3d 812, 823 (8th Cir. 2017) (noting that
"[n]umerous prior court of appeals decisions have held that the
Board's interpretation of judicial precedent 'is not entitled to
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judicial deference'") (citation omitted); Maine Pub. Serv. Co.
v. Fed. Power Comm., 579 F.2d 659, 665 (1st Cir. 1978) (stating
"a court may pass judgment independently" upon an agency's
interpretation of judicial precedent); cf. Mount v. Bd. of Trs.,
Police and Firemen's Ret. Sys., ___ N.J. ___, ___ (2018) (slip
op. at 21) (stating that Court "reviews de novo the Board's
interpretation of N.J.S.A. 43:16A-7(1) and our case law").
In this case, the Board misinterpreted the Court's decision
in Kasper to preclude categorically accidents occurring in a
public employer's parking lot.1 The Court concluded that the
current statutory language was "intended to reestablish the
integrity of the premises rule and eliminate the judicially
created exceptions to the going and coming rule." Kasper, 164
N.J. at 580. In order for an accident to be eligible, it must
have occurred "on premises owned or controlled by the employer,
and not during activities encompassed within the myriad of
coming and going exceptions that ha[ve] sprung up." Ibid.Thus, "commuting accidents" in parking lots would not be
eligible. Ibid. However, an accident occurring "during or as a
1
We acknowledge that unpublished decisions of our court have not
taken a uniform approach to accidents in parking lots and other
areas outside a building where a public employee generally
performs assigned duties. However, those decisions are not
binding. R. 1:36-3. We look to Kasper to guide our resolution
of this case.
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result of the actual performance of [an employee's] duties, or
in an activity preparatory but essential to the actual duty" on
the employer's premises would be eligible. See id. at 585.
Amplifying this concept, the Court held, "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,
from the formal beginning to the formal end of the workday."
Id. at 585-86. In that regard, the Court made an observation of
particular relevance to this case: "Included are 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.
Although Kasper did not involve a lunch or bathroom break
accident, the Court's statement is controlling. "Appellate and
trial courts consider themselves bound by [the] Court's
pronouncements, whether classified as dicta or not." State v.
Dabas, 215 N.J. 114, 136-37 (2013); see also State v. Sorensen,
439 N.J. Super. 471, 488 (App. Div. 2015) (stating that we, as
an intermediate appellate court, are "bound by carefully
considered dictum from the Supreme Court"). Notably, at oral
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argument, the Board abandoned its previous position that the
Court's statement was non-binding dictum.
The Court held that Helen Kasper, a media specialist for
the Newark Board of Education, was entitled to an accidental
disability pension after she was injured outside her school
before the official start of the work day. The Court found she
had already arrived at her work location when she was injured –
notwithstanding that she had only reached her school's front
steps. Although she arrived early, she did so with a
supervisor's approval, to distribute materials to classrooms for
use at the start of the school day. Thus, "she was engaged in
conduct that was, in every sense, preliminary but necessary to
her early workday media distribution." Id. at 588.
The Court distinguished Kasper's incident from
administrative decisions in which pension boards denied
accidental disability pensions to employees who suffered
injuries while still on the way to work. One involved a teacher
who "slipped and fell on ice while walking across [a] school
parking lot towards school [who] was 'on his way to work and was
not yet in the performance of his duties at the time of the
incident.'" Id. at 581-82 (quoting Estate of Matza v. Bd. of
Trs., TPAF, 96 N.J.A.R.2d 224 (Div. of Pensions)). Another case
involved an employee who was in an automobile collision after
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she drove through the front gate of her employer's facility, but
"had not yet reached her normal work location, had not signed
in, and had not begun her usual work duties." Id. at 581
(citing Lewis-Miles v. Bd. of Trs., PERS, TYP 8932-96, initial
decision (July 16, 1998), adopted (Aug. 20, 1998),
http://njlaw.rutgers.edu/collections/oal/final/typ8932-96.pdf).
Kasper does not support the Board's blanket position that a
parking lot always lies outside a public employer's premises for
purposes of determining eligibility for an accidental disability
pension. Kasper construed the statute to exclude commuting
accidents, including those that occur in the parking lot. Id.
at 580. In other words, a parking lot lies outside the work
location if it is still part of the journey to or from work.
Consistently, we held today in Mattia v. Board of Trustees,
Police & Firemen's Retirement System, ___ N.J. Super. ___, ___
(App. Div. 2018) (slip op. at 7-9), that a corrections officer
was ineligible for an accidental disability pension when he
suffered his disabling injury while traversing a parking lot on
his way to check in for work, having not yet begun performing
his regular or assigned duties.
Depending on an employee's regular or assigned duties, the
work location may well include the employer's parking lot. A
public employee injured as a result of a traumatic event while
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shoveling an employer's parking lot as part of his or her
maintenance job satisfies the requirement to show the injury
occurred "during and as a result of the performance of his [or
her] regular or assigned duties." N.J.S.A. 43:16A-7(1).
Likewise, a physical education teacher, injured as a result of a
traumatic event while running into the parking lot to retrieve
an errant soccer ball during a gym class would satisfy the
statute. The result depends on the employee's use of the
parking lot. We do not presume that every post-commute parking
lot accident is covered. Nor shall we attempt to formulate a
rule for cases not before us.
Here, Bowser suffered a disabling accidental injury during
her workday, at the work location. We recognize that Bowser did
not leave the jail on her way to the parking lot in order to
perform assigned duties. She does not contend she performed
security, or inmate supervision in the parking lot. However,
she entered the parking and road area within the confines of the
MCCC property to retrieve necessary feminine hygiene products
from her car because she was, unexpectedly, working a second
eight-hour shift.
Just as restroom breaks at the work location during the
workday "are necessary concomitants of an employee's performance
of his or her regularly assigned tasks," Kasper, 164 N.J. at 586
12 A-0568-16T4
n.7, so was Bowser's break to retrieve those necessary products.
She remained on the MCCC premises, and had no intention of
leaving. She obtained relief from a fellow officer so she could
briefly leave her post, as she would if she had headed straight
to the restroom. And, she was "on the clock," as she would be
during a restroom break. Consequently, her accident occurred
"during and as a result of the performance of [her] regular or
assigned duties." N.J.S.A. 47:16A-7(1). As the Board conceded
she satisfied the remaining Richardson factors, the Board erred
in denying Bowser an accidental disability pension.
Reversed.
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