THOMAS MULCAHEY VS. BOARD OF TRUSTEES (TEACHERS' PENSION AND ANNUITY FUND)

NOT FOR PUBLICATION WITHOUT THE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-5146-16T2
THOMAS MULCAHEY,
Petitioner-Appellant,
v.
BOARD OF TRUSTEES,
TEACHERS' PENSION AND
ANNUITY FUND,
Respondent-Respondent.
___________________________
Argued February 4, 2019 – Decided June 3, 2019
Before Judges Messano, Fasciale and Gooden Brown.
On appeal from the Board of Trustees of the Teachers'
Pension and Annuity Fund, Department of the
Treasury, TPAF No. 1-10-156216.
Richard A. Friedman argued the cause for appellant
(Zazzali, Fagella, Nowak, Kleinbaum & Friedman,
attorneys; Richard A. Friedman, of counsel and on the
briefs; Edward M. Suarez, Jr., on the briefs).
Amy Chung, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Jeff S. Ignatowitz,
Deputy Attorney General, on the brief).
PER CURIAM
Pursuant to N.J.S.A. 18A:66-39(c) (the Act), a member of the Teachers'
Pension and Annuity Fund (TPAF) is eligible for accidental disability benefits
if he or she "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 . . . ." (emphasis added); 1 see Kasper v. Bd. of Trs., Teachers'
Pension & Annuity Fund, 164 N.J. 564, 575-76 (2000) (discussing elements of
a successful claim for accidental disability benefits and 1966 statutory
amendments enacted to "make the granting of an accidental disability pension
more difficult"). In 1986, the Legislature amended the Act, adding the
following:
A traumatic event occurring during voluntary
performance of regular or assigned duties at a place of
employment before or after required hours of
employment which is not in violation of any valid work
rule of the employer or otherwise prohibited by the
employer shall be deemed as occurring during the
performance of regular or assigned duties.
[L. 1986, c. 51 (1986 Amendment) (emphases added).]
1
After May 21, 2010, no new member of the TPAF is eligible for accidental
disability benefits. L. 2010, c. 3, § 7.
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"The purpose of the 1986 amendment . . . was not to alter the statutory
requirements for an accidental disability pension, but to make the legal
ramifications of the performance of an employee's duties either before or after
hours the same as if it occurred during the regular school day." Kasper, 164 N.J.
at 585 n.5 (citation omitted).
This appeal presents primarily a legal question. Is a high school teacher,
paid a stipend under a separate contract to coach one of the school's athletic
teams, who becomes "permanently and totally disabled as a direct result of a
traumatic event" during after-school practice, eligible for accidental disability
benefits because the "traumatic event occurr[ed] during and as a result of . . .
his regular or assigned duties . . . [?]" N.J.S.A. 18A:66-39(c). The facts are
essentially undisputed.
Thomas Mulcahey first became an athletic coach in the Freehold Regional
High School District in the fall of 1991. Two years later, the District hired him
as a high school physical education teacher. He continued his duties thereafter
as a coach, and, during the 2006-07 school year, the District hired Mulcahey as
the head coach for the girls' varsity softball team. Each year, the District would
evaluate a coach's performance, the evaluations were forwarded through the
chain of command to the District superintendent, and before hiring coaches, the
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District reviewed applications whether submitted by those who had previousl y
coached or new applicants.
The District paid coaches a stipend, which was not included as
pensionable salary, and the District therefore did not deduct pension
contributions from the stipend. In this case, the collective negotiations
agreement between the Board of Education and the teachers' bargaining unit
established the amount of the stipend paid to Mulcahey. The District's coaching
manual contained a broad "Philosophy Statement," which specified that the
"fundamental purpose of interscholastic athletics" was, among other things, to
"foster the intellectual growth of the student by supporting and reinforcing the
academic program of the school." It further stated, "[f]unctioning as a part of
the educational whole[,] the athletic program should always be in conformity
with the District's objectives."
A contractual responsibility of the softball coach was to supervise after -
school practices. During practice on April 11, 2007 (2007 incident), Mulcahey
was struck in the face by an "errant throw," causing a concussion and fracturing
the zygomatic arch of his face in three places. He also suffered herniated discs,
cognitive and vision problems, depression, and anxiety. As a result, Mulcahey
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took leave until January 2008. Upon his return, he claimed he was unable to
cope with the stresses of the job.
On March 30, 2009 (2009 incident), Mulcahey suffered a concussion
when, during a physical education class, a "spiked" volleyball hit his head.
Mulcahey did not return to work until October. In April 2011, he submitted an
application for accidental disability benefits, claiming he was permanently
disabled as a result of both incidents. He continued to coach and teach until
2014, when he left because of his asserted disability.
The TPAF Board of Trustees (Board) initially denied Mulcahey's request
for accidental disability benefits, concluding he was not "totally and
permanently disabled." In 2014, based on supplemental medical evidence, the
Board partially reversed its earlier decision. It concluded Mulcahey was "totally
and permanently disabled[,]" but it denied him accidental disability benefits.
The Board reasoned that although the 2009 incident "occurred during and
as a result of the performance of [Mulcahey's] regular or assigned duties[,] there
[was] no evidence . . . of direct causation of a total and permanent disability
based on the [2009] incident . . . ." As to the 2007 incident, "which was the
substantial contributing cause of [Mulcahey's] disability," the Board concluded
it "did not occur during and as a result of his regular and assigned duties[,]"
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because "coaching . . . [was] not part of [Mulcahey's] regular and assigned job
duties."2 Mulcahey appealed again. 3
Both parties moved for summary decision, acknowledging that the issue
presented a legal question, which the ALJ framed succinctly:
It is [Mulcahey's] position that in respect to the Board's
determination that [the] 2007 injury, sustained during
the performance of his coaching duties while on the
school's athletic field, does not qualify as having
occurred during the performance of his regular or
assigned duties, Kasper has already determined that the
Board's position is unsustainable. The Board attempts
to argue otherwise.
Relying heavily on the Court's dicta in Kasper, the ALJ rendered a
comprehensive initial decision finding Mulcahey was eligible for accidental
disability benefits. The Board rejected the ALJ's decision, finding it was "not
consistent with Kasper[, but] rather . . . [was] an unwarranted expansion of
2
The Board misstated the statutory qualification as relating to "regular and
assigned duties," whereas N.J.S.A. 18A:66-39(c) refers to "regular or assigned
duties."
3
The parties agreed before the administrative law judge (ALJ) to first litigate
whether Mulcahey was eligible for accidental disability benefits occasioned by
the 2007 incident, and hold in abeyance the 2009 incident, litigating that only if
Mulcahey was unsuccessful.
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Kasper." It remanded the matter to the ALJ to develop a "full and complete
administrative record" before the Board conducted its review.
The remand hearing included the testimony of Mulcahey, the District
Athletic Director, Mulcahey's treating doctor, and his medical expert. 4 The ALJ
rendered another initial decision, in which he found Mulcahey totally and
permanently disabled by the 2007 incident, which "occurred during and as a
result of [Mulcahey's] performance of his regular or assigned duties."
The ALJ again relied upon Kasper, in particular, the Court's example of
the soccer coach who arrives early to bring the
equipment out to the field, or who is left on the steps of
the school at night after she has shepherded her last
player to a waiting car, and is disabled by a traumatic
injury is performing her duties, or acts essential to her
duties, at the work location and thus qualifies for an
accidental disability pension.
[164 N.J. at 587.]
The ALJ further found that if Mulcahey were denied eligibility based upon the
"performance" criteria, he was not be eligible to receive accidental disability
retirement benefits because the 2009 incident "was not the essential . . .
contributing cause of [Mulcahey's] disability."
4
The appellate record contains the ALJ's reconstruction of the hearing due to a
failure of the recording system.
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In its final decision, which we now review, the Board accepted the ALJ's
findings and conclusions regarding the 2009 incident. However, it rejected the
ALJ's legal conclusion that the 2007 incident occurred during Mulcahey's
regular or assigned duties. It noted that the TPAF's governing statutes, N.J.S.A.
18A:66-1 to -93, "distinguish[ed] between a member's 'contractual salary, for
services as a teacher' . . . and 'additional remuneration for performing temporary
or extracurricular duties beyond the regular school day' . . . ." (quoting N.J .S.A.
18A:66-2(d)(1)). The Board observed that the TPAF is funded, in part, through
teachers' contributions based on a percentage of their contractual salaries,
exclusive of whatever "additional remuneration" they may be paid. It concluded
the Legislature intended to provide for higher accidental disability awards, as
opposed to ordinary disability benefits, only if the member was totally and
permanently "disabled 'during and as a result of the performance of his regular
or assigned duties' as [a] teacher[]." (quoting N.J.S.A. 18A:66-39(c)); see
Kasper, 164 N.J. at 573-74 (recognizing different benefit levels).
Lastly, the Board rejected the ALJ's interpretation of and reliance upon
Kasper, concluding that case was factually distinguishable.
Mulcahey was working under a coaching agreement
separate from his employment agreement, received a
stipend separate from his regular salary, was evaluated
under a separate process, and made no pension
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contributions on his coaching earnings. . . . Each of
these facts militates against any conclusion that he was
engaged in his "regular or assigned duties" as a teacher
when he coached the girls' softball team. Since the
[Kasper] Court did not and could not consider these
facts, its soccer-coach example cannot control in this
case.
This appeal followed.
Mulcahey essentially contends that Kasper is dispositive of his claim for
accidental disability benefits, and the Board's attempts to distinguish it because
coaching is an "extracurricular" activity, or because the District paid him a non-
pensionable contractual stipend, lack merit. He also argues, in the alternative,
that the 2009 incident was a "substantial contributing cause" of his total and
permanent disability, and, the Board erred in adopting the ALJ's findings an d
conclusions in this regard.
We have considered these arguments in light of the record and applicable
legal standards. We reverse.
Our review from a final decision of an administrative agency is limited.
Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (citing
In re Herrmann, 192 N.J. 19, 27 (2007)). The agency's decision should be upheld
"unless there is a clear showing that it is arbitrary, capricious, or unreasonable,
or that it lacks fair support in the record." Ibid. (quoting Herrmann, 192 N.J. at
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27-28). We accord deference to the "agency's interpretation of a statute" it is
charged with enforcing. Thompson v. Bd. of Trs., Teachers' Pension & Annuity
Fund, 449 N.J. Super. 478, 483 (App. Div. 2017), aff'd o.b., 233 N.J. 232 (2018).
"'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.'" Id. at 483-84 (quoting Piatt v. Police & Firemen's
Ret. Sys., 443 N.J. Super. 80, 99 (App. Div. 2015)).
However, "whether [Mulcahey's] injury occurred 'during and [as] a result
of [his] regular or assigned duties' is a legal question of statutory interpretation,
which we review de novo." Bowser v. Bd. of Trs., Police & Firemen's Ret. Sys.,
455 N.J. Super. 165, 170-71 (App. Div. 2018) (citing Saccone v. Bd. of Trs.,
Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014)). Moreover, "[w]e owe
no deference to an administrative agency's interpretation of judicial precedent."
Id. at 171. In Bowser, as in this case, we rejected the pension board's
"misinterpret[ation of] the Court's decision in Kasper . . . ." Id. at 172.
In Kasper, a teacher, who routinely arrived before the official start of the
school day to distribute materials requested by other teachers, was robbed and
assaulted on the steps of the school. 164 N.J. at 571. The Court concluded that
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administrative decisions and case law interpreting "during and as a result of the
performance of [the employee's] regular or assigned duties," N.J.S.A. 18A:66-
39(c),
share the recurring theme that, assuming all other
statutory prerequisites are met, a worker will qualify for
an accidental disability pension if he or she is injured
on premises owned or controlled by the employer,
during or as a result of the actual performance of his or
her duties, or in an activity preparatory but essential to
the actual duty. That is true whether the injury occurs
during the workday or before or after hours.
[Id. at 585.]
The Court said that under the Act,
pre- and post-workday performance of an employee's
regular or assigned duties essentially constitutes a
parallel universe to the performance of those duties
during the regular workday. Thus, a teacher who is
required to come early or stay late for parent
conferences or sports practices clearly qualifies for an
accidental disability pension if she receives a disabling
traumatic injury while performing those duties.
[Id. at 586.]
The Court contrasted those teachers who arrive early or stay late for reasons
unrelated to their employment and are therefore excluded from the Act's
benefits, with the hypothetical soccer coach, which we quoted above, who was
eligible. Id. at 587. In short, a teacher qualifies for accidental disability benefits
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if he "is on premises controlled by the employer and [his] injury is causally
connected, as a matter of common sense, to the work the employer has
commissioned." Id. at 588.
The Board distinguishes Kasper, contending that because Mulcahey was
paid a separate stipend to coach, his injury did not occur "'during and as a result'
of his 'regular or assigned duties.'" The Board notes that while the 1986
amendment extended eligibility for injuries occurring before and after regular
work hours, it was limited to only the "voluntary performance of regular or
assigned duties," not situations, like this, where a teacher was paid a separate
stipend for performing those duties. We reject the distinctions as meaningful
for purposes of construing the Act under the particular facts of this case.
There is no question that Mulcahey's traumatic injury was "causally
connected, as a matter of common sense, to the work the employer ha[d]
commissioned." Ibid. Pursuant to his contract, the District hired Mulcahey to
coach the girls' varsity softball team and expected him to supervise after -school
softball practice, which is what he was doing when injured. The Kasper Court
did not address the exact facts presented here, nor did it exclude teachers who
are paid by separate contract for supervising extra-curricular activities from
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eligibility. Neither the Court's "soccer coach" example, nor its interpretation of
the 1986 Amendment, carved out such an exception.
Moreover, there are several practical reasons why eligibility for accidental
disability benefits should exist under these circumstances. Common experience
recognizes that at the high school level, athletic coaches are routinely teachers
in the same school or another school in the same district. That relationship
permits the coach to interact with other educators, guidance counselors, and the
like, to better serve the student and further, in this case, the District's goal that
its athletic programs be "part of the educational whole" and "in conformity with
the District's objectives."
Further, in this particular case, the stipend the District paid was an item
negotiated and incorporated in the parties' collective negotiations agreement.
We might assume that if teachers, who were part of a bargaining unit that
negotiated an additional stipend for its members, became ineligible for
accidental disability benefits by accepting that stipend, they may decline the
opportunity to apply for coaching positions.
Lastly, under the Board's interpretation of the Act, if two teachers, one
paid a stipend and the other a volunteer, are supervising after-school practice
and both are injured as result by a common traumatic event, only the volunteer
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would be eligible for accidental disability benefits. The distinction urged by the
Board compels an absurd result under those circumstances. See, e.g.,
Kocanowski v. Township of Bridgewater, 237 N.J. 3, 10 (2019) (quoting State
v. Twiggs, 233 N.J. 513, 533 (2018)) (cautioning against literal reading of
statutory language if it "yield[s] an absurd result . . . at odds with the overall
statutory scheme").
We conclude Mulcahey was eligible for accidental disability benefits
because of the 2007 incident. As a result, we need not consider his other
argument.
Reversed and remanded. We do not retain jurisdiction.
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