IRMA PINTO VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM(BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3263-15T4
IRMA PINTO,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,
Respondent-Respondent.
_____________________________________________
Argued June 6, 2017 – Decided August 3, 2017
Before Judges Suter and Grall.
On appeal from the Board of Trustees, Public
Employees' Retirement System, PERS No.
1220708.
Richard A. Friedman argued the case for
appellant (Zazzali, Fagella, Nowak,
Kleinbaum & Friedman, attorneys; Mr.
Friedman, of counsel and on the brief;
Marissa A. McAleer and Kaitlyn E. Dunphy, on
the briefs).
Jeff S. Ignatowitz, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney
General, of counsel; Mr. Ignatowitz, on the
brief).
PER CURIAM
Petitioner Irma Pinto appeals from a final agency decision
of the Board of Trustees of the Public Employees' Retirement
System (Board). Affirming and adopting the findings and
recommendations of the Administrative Law Judge (ALJ), the Board
denied Pinto's application for accidental disability and granted
Pinto ordinary disability retirement. We affirm.
Our role in reviewing a 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, Dep't of Envtl. Prot., 82 N.J. 530,
539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d
245 (1980), give great deference to the agency's interpretation
of its regulations, U.S. Bank, N.A. v. Hough, 210 N.J. 187, 191
(2012), and defer to the agency's findings of fact, Lavezzi v.
State, 219 N.J. 163, 172 (2014). An agency's determination is
disturbed only if it is arbitrary, capricious, or unreasonable,
lacked fair support in the evidence or violated legislative
policies. In re Musick, 143 N.J. 206, 216 (1996).
The Stratford Board of Education hired Pinto to do
custodial work in 2004, and she sustained her disabling injury
at work on April 26, 2011. The students were on spring break
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that day and, for that reason, the custodians worked the day
shift (7:00 a.m. to 3:30 p.m.) to do deep-cleaning, which
included scrubbing and waxing the hallway and elevator floors.
That project involved multiple applications of wax separated by
thirty minutes to allow the previous layer to dry; after wax is
applied, the floor cannot be walked on until dry.
Kenneth Pressley, the district's assistant supervisor of
operations and overseer of day and night shift custodians, was
working in the same school as Pinto the day she fell. Pressley
assigned the tasks at the beginning of the shift. Pinto would
do housekeeping work in the classrooms on the second floor.1
Pressley and the only other custodian present, Carl DiOrio,
would scrub and wax the main floor. Pressley told Pinto to use
the stairway in the back of the building if she had to come
down, which would allow her to leave the building without
passing through the hallway being waxed.
According to Pressley's testimony, he directed Pinto not to
use the elevator twice more, at least. While he was scrubbing
and waxing with DiOrio, Pinto "kept coming down . . . . she kept
coming down and then we — me and Mr. DiOrio both were letting
1
Apparent discrepancy in testimony identifying specific floors
of the building is eliminated by DiOrio's testimony, which makes
it clear that he and Pressley were counting the floors
differently when they used the terms first and second floor.
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her know that she [couldn't] come this way because we was [sic]
waxing, and then she was saying, 'well, I know, I be [sic]
careful,' this and this, you know, it was like — it was like
that, yeah."
Pressley spoke to Pinto again as she was getting off the
elevator. He explained, "'Hey, Irma, you know, we're waxing
these floors, you can't come this way.' And she said, 'Oh, no
problem.'" He did not recall whether he put signs out, but he
knew everyone in the school that day knew what was going on, and
he noted the buckets have "'caution wet floor' [labels] on
them."
DiOrio spoke to Pinto three or four times that day. As the
lunch break was ending and Pinto was going back upstairs, he
told her they were going to start the waxing. As far as DiOrio
knew, Pinto used the elevator when she went up in the morning
and once more, at the end of the day. At about 3:15 p.m., when
DiOrio was applying the last coat of wax, he heard the elevator
ding. When the doors opened, Pinto was "laying on the floor" of
the elevator. Because the hallway floor was just waxed, he did
not cross it because he would have fallen. He told Pinto to
take the elevator up so he could meet her there and help.
DiOrio had waxed the elevator five to ten minutes earlier.
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During her testimony, Pinto denied being told not to take
the elevator or that it was being waxed. She acknowledged using
the elevator at least three times that day and knowing that in
the past sometimes when the floors were waxed, everything was
waxed. She had not noticed any sign of cleaning in the elevator
until she was lying in the wet wax.
The ALJ found Pinto "was warned repeatedly on April 26,
2011, to avoid using the elevator." The ALJ gave "greater
weight to the testimony of Pressley and DiOrio," because they
had no interest in the outcome and Pinto's interest in the
outcome was "very real." The ALJ concluded the fall that left
Pinto disabled "was caused by her willful negligence," which was
established by Pinto's "affirmative decision to use the
elevator," despite the warnings of her co-workers and the
available safe route, amounted to conduct evidencing "'reckless
indifference to safety' within the contemplation of N.J.A.C.
17:2-6.5(a)2." N.J.A.C. 17:2-6.5(a) defines the term "willful
negligence," and reckless indifference to safety is one of the
meanings assigned. "[W]illful negligence" is a statutory bar to
award of an accidental disability pension. N.J.S.A. 43:16A-7.
Pinto contends the Board erred in accepting the ALJ's
findings of fact because they lack evidential support. Given
the deference this court owes to the Board's factual
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determinations and application of its regulation, we disagree.
The ALJ's use of the word "repeatedly" has adequate support.
Moreover, while not wholly consistent, the testimony given by
Pressley and DiOrio established Pinto was told not to take the
elevator and to avoid walking on the floors being waxed, which
include the floor at the elevator entrance. Moreover, the
inference that Pinto was aware of the safety risk involved was
amply supported by the record. Pinto had been on the job for
several years, had been there when waxing was done, and was
aware the elevator's floor likely would be waxed with the floor
leading to it.
In arguing the risk of fall was insufficiently high and the
danger posed insufficiently serious to establish reckless
indifference to safety, Pinto relies on Schick v. Ferolito, 167
N.J. 7 (2001). That case involves risk to other players on a
golf course. Here, the question is whether a public employee
engaged in conduct in a manner demonstrating "reckless
indifference to [his or her] safety."
In considering whether a disregard of risk brings ordinary
negligence to the level of "reckless indifference," courts
assess the question in light the situation. In G.S. v.
Department of Human Services, 157 N.J. 161, 179 (1999), the
Court equated "the concept of willful and wanton misconduct"
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with action taken by a person "with reckless disregard for the
safety of others." (Citations omitted). "The term is not
immutably defined but takes its meaning from the context and
purpose of its use." Fielder v. Stonack, 141 N.J. 101, 124
(1995). The analysis "turns on an evaluation of the seriousness
of the actor's misconduct." G.S., supra, 157 N.J. at 178
(citing Fielder, supra, 141 N.J. at 124).
In this accidental disability retirement case, the risk of
danger to safety was Pinto's falling in the elevator or on the
floor below, where DiOrio was waxing outside the elevator. The
school's floors were being waxed on the day Pinto fell because
no one was using the school. The school's practice suggests the
employer's interest in limiting the risk of falls as well as its
interest in avoiding disruption of the waxing or educational
endeavors. Moreover, the likelihood of falls inherent in wet
floors, even floors not wet with wax, is commonly understood as
significant and consequential. That common understanding is
evidenced by the routine and customary use of "caution wet
floor" with an image depicting a slip and fall in progress in
public places. Finally, Pinto disregarded the risk despite
having the option to avoid the freshly waxed floors by taking
the stairwell she was directed to use.
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Having considered the evidence in light of our deferential
standards of review, we affirm. The agency's denial of an
accidental disability retirement is not arbitrary, capricious,
or unreasonable.
Affirmed.
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