MARISA HENDERSON VS. BOARD OF TRUSTEES (PUBLIC EMPLOYEES' RETIREMENT SYSTEM) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2666-18T3
MARISA HENDERSON,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Defendant-Respondent.
___________________________
Argued telephonically March 24, 2020 –
Decided May 18, 2020
Before Judges Fisher and Gilson.
On appeal from the Board of Trustees of the Public
Employees' Retirement System, Department of the
Treasury, PERS No. 2-10-316238.
Samuel Michael Gaylord argued the cause for appellant
(Gaylord Popp, LLC, attorneys; Samuel Michael
Gaylord, on the brief).
Alison Keating, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Alison Keating, on the
brief).
PER CURIAM
Appellant, Marisa Henderson, appeals from a final agency decision by the
Board of Trustees, Public Employees' Retirement System (Board) that denied
her application for accidental disability retirement benefits. Discerning nothing
arbitrary, capricious, or unreasonable in the Board's decision, we affirm.
I.
For approximately twelve years, appellant worked as a secretarial
assistant at The College of New Jersey. In 2015, she was an assistant to a vice -
president at the college and her duties included secretarial work.
On January 22, 2015, and February 3, 2015, appellant was exposed to
odors from Mistolin, a commercial cleaning product. According to appellant,
on both occasions she smelled a strong odor after the regular cleaning crew had
sprayed a cleaning product in the area around where she was working. Shortly
thereafter, she had difficulty breathing and both times she was taken to a hospital
to be examined. Following the incident on February 3, 2015, appellant did not
return to work.
In August 2016, appellant filed for accidental disability retirement
benefits. On January 18, 2017, the Board determined that appellant was totally
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and permanently disabled from working and granted her ordinary disability
retirement. The Board denied her application for accidental disability finding
that her disability was not a result of a traumatic event because "there was no
actual accident or external happening."
Appellant administratively appealed and the matter was transferred to the
Office of Administrative Law as a contested case. On July 25, 2018, an
Administrative Law Judge (ALJ) conducted a one-day hearing and heard
testimony from appellant, who was the only witness. The ALJ issued an initial
decision on December 6, 2018, affirming the denial of appellant's application
for accidental disability.
The ALJ found that the only issue presented to him was whether
appellant's disability was caused by "a traumatic event." In that regard, the ALJ
noted that the Board had previously determined that appellant was permanently
disabled from performing her usual duties, both incidents occurred when she
was at work, and the disability was not the result of her willful negligence. The
ALJ then found that neither incident was a traumatic event because nothing
unexpected happened. Specifically, the ALJ found that Mistolin was a common
product used by cleaning crews and there was no evidence that an inordinate
amount of the chemical was used. The ALJ then concluded:
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The cleaning crew participated in cleaning the office as
they had done for the prior three years. There was no
testimony form the appellant that she was sprayed with
the chemical unexpectedly nor was there any credible
expert testimony that the chemical used was used in an
improper or hazardous matter. Simply put, there was
no evidence or testimony that would support that a
traumatic event occurred.
On January 22, 2019, the Board adopted the ALJ's decision and affirmed
the denial of the application for accidental disability retirement benefits. 1
Appellant appeals from the Board's decision.
II.
On appeal to us, appellant argues that the two incidents were traumatic
events and, therefore, she is entitled to accidental disability benefits. Appellant
also contends that the ALJ erred in considering the issue of whether the events
were undesigned and unexpected. We disagree and affirm.
Our review of an administrative agency determination is limited. In re
Carter, 191 N.J. 474, 482 (2007). We will sustain a board's decision "unless
there is a clear showing that it is arbitrary, capricious, or unreasonable, or that
it lacks fair support in the record." Russo v. Bd. of Trs., Police & Firemen's Ret.
1
The Board made two minor factual modifications to the ALJ's decision. The
Board noted that the ALJ had twice cited to the disability application when the
factual support for those cites was from the applicant's interrogatory answers.
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Sys., 206 N.J. 14, 27 (2011) (quoting In re Herrmann, 192 N.J. 19, 27-28
(2007)). Under this standard our scope of review is guided by three major
inquiries: (1) whether the agency's decision conforms with relevant law; (2)
whether the decision is supported by substantial credible evidence in the record;
and (3) whether in applying the law to the facts, the administrative "agency
clearly erred in reaching" its conclusion. In re Stallworth, 208 N.J. 182, 194
(2011) (quoting Carter, 191 N.J. at 482-83).
We are not bound by an agency's statutory interpretation or other legal
determinations. Russo, 206 N.J. at 27 (quoting Mayflower Sec. Co. v. Bureau
of Sec., 64 N.J. 85, 93 (1973)). Nevertheless, we accord "substantial deference
to the interpretation given" by the agency to the statute it is charged with
enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16,
31 (1996) (citing Merin v. Maglaki, 126 N.J. 430, 436-37 (1992)). "Such
deference has been specifically extended to state agencies that administer
pension statutes" because "a state agency brings experience and specialized
knowledge to its task of administering and regulating a legislative enactment
within its field of expertise." Piatt v. Police & Firemen's Ret. Sys., 443 N.J.
Super. 80, 99 (App. Div. 2015) (first citing Richardson v. Bd. of Trs., Police &
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Firemen's Ret. Sys., 192 N.J. 189, 196 (2007); then quoting In Re Election Law
Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)).
A claimant seeking accidental disability retirement benefits must prove
five factors:
1. that he [or she] 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.
[Richardson, 192 N.J. at 212-13.]
See also N.J.S.A. 43:15A-43.
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To be traumatic, an event must be "undesigned and unexpected."
Richardson, 192 N.J. at 212. "The polestar of the inquiry is whether, during the
regular performance of [her] job, an unexpected happening, not the result of pre-
existing disease alone or in combination with the work, has occurred and directly
resulted in the permanent and total disability of the member." Id. at 214.
Here, the ALJ found, and the Board agreed, that there was no evidence of
an unexpected happening. In that regard, the ALJ noted that the building where
appellant worked was regularly cleaned and there was no evidence that appellant
was exposed to an unusual amount of cleaner or that the cleaning product used
was hazardous. Given our limited standard of review, we discern no basis to
disagree with the factual findings made by the Board or its legal conclusion that
appellant had not established that she was entitled to accidental disability
retirement benefits.
Appellant also argues that the ALJ went beyond the scope of the issue that
was presented at the contested hearing. Specifically, appellant contends that the
only issue that should have been addressed was whether there was an accident
or an external happening. Appellant goes on to contend that she limited her
evidence to that issue and thereby was prejudiced. We discern no prejudice.
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In its initial determination, the Board specifically found that appellant's
disability did not result from "a traumatic event." Consequently, the issue of
whether there was a traumatic event was properly before the ALJ. The question
of whether an event is a traumatic event includes a determination whether the
event was undesigned and unexpected. See id. at 212-13; N.J.S.A. 43:15A-43.
Consequently, the issue of whether the incident was undesigned and unexpected
was properly before the ALJ. It was appellant's obligation to prove that her
disabling injury was "a direct result of an identifiable, unanticipated mishap."
Brooks v. Bd. of Trs., Pub. Employee Ret. Sys., 425 N.J. Super. 277, 284-85
(App. Div. 2012) (quoting Richardson, 192 N.J. at 213). She failed to establish
an unanticipated mishap.
Affirmed.
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