URSULA CARGILL VS. BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM (PUBLIC EMPLOYEES' RETIREMENT SYSTEM)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 6, 2018
• Docket: A-2167-16T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2167-16T2

URSULA CARGILL,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES OF THE PUBLIC EMPLOYEES' RETIREMENT SYSTEM,

Respondent-Respondent.

Argued August 29, 2018 – Decided September 6, 2018

Before Judges Alvarez and Gooden Brown.

On appeal from the Board of Trustees of the Public Employees' Retirement System, Department of Treasury, PERS No. 2-10-266853.

Samuel M. Gaylord argued the cause for appellant (Gaylord Popp, LLC, attorneys; Samuel M. Gaylord, on the brief).

Austin J. Edwards, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Robert S. Garrison, Jr., Deputy Attorney General, on the brief).

PER CURIAM Ursula Cargill appeals from the December 15, 2016 final

determination of the Board of Trustees (Board) of the Public

Employees' Retirement System, finding she was not eligible for

accidental disability retirement benefits. For the reasons that

follow, we affirm.

Cargill, a long-time employee of the New Jersey Department

of Education, was required to attend monthly managers' meetings.

On February 9, 2010, an email was sent to those attending, changing

the meeting time. The email stated that if adverse weather

conditions continued into February 10, employees should check

their email at 8:00 p.m. - or the next morning at the latest - to

confirm the off-site meeting was neither cancelled nor postponed.

At 4:22 p.m. on February 10, 2010, the meeting coordinator emailed

those attending cancelling the meeting due to snow. Cargill

testified that she did not receive the email and thus headed out

from her home in the snow the morning of February 11, 2010. She

hit ice less than half a mile away and slid off the road. In

order to maneuver her car back onto the road, she pushed down on

the rear bumper attempting to free the vehicle from a snow bank.

When she straightened, she felt a twinge in her lower back, but

drove on to the meeting site.

Cargill worked for approximately a year before the pain in

her lower back required surgery. She stopped working the following

2 A-2167-16T2 month, in March 2011, and applied for an accidental disability

pension based on the incident.

The Board determined that Cargill was permanently disabled

and qualified for ordinary disability - not accidental - based on

its opinion that the incident was not undesigned and unexpected,

two of the conditions required by Richardson,1 and that,

additionally, the incident could not trigger payment of accidental

disability based on the "going and coming" rule. When Cargill

appealed, the matter was transferred to the Office of

Administrative Law as a contested case under the Administrative

Procedure Act, N.J.S.A. 52:14B-1 to -31 and 52:14F-1.

The issues presented to the administrative law judge (ALJ)

were whether the incident occurred during and as a result of

Cargill's regular or assigned duties, and whether the alleged

incident was undesigned and unexpected. Relying on Kasper v.

Board of Trs. of the Teachers' Pension & Annuity Fund, 164 N.J.

564 (2000), the ALJ found Cargill ineligible for accidental

disability because of the going and coming rule. When the incident

occurred, Cargill had not reached her normal work location or the

meeting site. She had neither signed in nor begun her usual work

duties - as the ALJ said, she "had not completed her commute to

1 Richardson v. Board of Trs., 192 N.J. 189 (2007).

3 A-2167-16T2 work." He found as additional grounds that because the meeting

had been cancelled, "Cargill was not authorized to travel to the

location."

The ALJ also concluded the event was neither undesigned nor

unexpected, as defined in Richardson. 192 N.J. at 201. Obviously,

Cargill deliberately pushed on the bumper to free her vehicle, and

a back sprain was within the realm of possible consequences. It

was neither extraordinary nor unusual. He said: "It can hardly

be argued that a forty-six-year-old woman sustaining a strained

back while attempting to dislodge a car from a snow bank is an

extraordinary or unusual consequence." Accordingly, the incident

was not a "traumatic event pursuant to Richardson." In its final

decision, the Board adopted the ALJ's recommendations.

The ALJ's findings were supported by the record. Cargill was

on the way to work, and had not yet arrived at a work destination.

Her argument that because she was going to a meeting site and was

being compensated for the time is not convincing. As we recently

reiterated, in order "to qualify for accidental disability

retirement benefits, an employee cannot merely be coming to, or

going from work." Mattia v. Bd. of Trs., Police & Firemen's Ret.

Sys., ___ N.J. ___, ___ (2018) (slip op. at 9). An employee must

establish that he or she had completed his commute at the time of

injury, and was performing a function connected to his work. See

4 A-2167-16T2 id. at 8-9. Cargill's injury occurred while she was on her way

to work, or commuting, and was not causally connected to her work.

Therefore, she is not entitled to accidental disability retirement

benefits.

As the ALJ observed, if a person attempts to push or

manipulate a vehicle off an icy patch, a known consequence is a

back sprain. Thus, Cargill's proofs also failed to meet the

Richardson standard. See Richardson, 192 N.J. at 201.

Our standard of 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., 431 N.J. Super. 1, 14 (App.

Div. 2013) (citing Hemsey v. Bd. of Trs., Police & Firemen's Ret.

Sys., 198 N.J. 215, 223 (2009)). Though we owe no deference to

an agency's interpretation of legal precedent, the Board's

decision in this instance is fully supported by Kasper and

Richardson. It is not arbitrary, capricious, or unreasonable and

is supported by sufficient credible evidence in the record. See

In re Young, 202 N.J. 50, 70 (2010).

Affirmed.

5 A-2167-16T2