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Kasper v. Board of Trustees of the Teachers' Pension and Annuity Fund

July 18, 2000

HELEN KASPER, PETITIONER-APPELLANT,
v.
BOARD OF TRUSTEES OF THE TEACHERS' PENSION AND ANNUITY FUND, RESPONDENT-RESPONDENT.



The opinion of the court was delivered by: Long, J.

Argued March 13, 2000

On certification to the Superior Court, Appellate Division.

In 1991, petitioner Helen Kasper was working as an educational media specialist for the Newark Board of Education and was enrolled in the Teacher's Pension and Annuity Fund. On May 31, 1991, Ms. Kasper arrived at school at 7:45 a.m. Although the school day officially began at 8:30 a.m., Ms. Kasper came early, as she had every morning for nine months, because the school principal required that certain media materials be distributed to various classrooms prior to the official start of classes.

According to Ms. Kasper, her duties included distributing media materials requested by teachers each morning. Ms. Kasper stated that the principal was aware of her early arrivals and approved that practice. The other media specialist chose not to arrive prior to the 8:30 a.m. opening; consequently, Ms. Kasper had to do most of the early distribution.

That morning, Ms. Kasper parked her car and proceeded across the street to school property. As she climbed the school steps to the front door of the building, a man grabbed her purse and pulled her to the ground. Ms. Kasper did not remember falling but she was found face down on the ground by the school principal a few moments after the attack. Her purse had been stolen and she suffered several injuries.

Ms. Kasper continued to work until September 1, 1996, when she filed a claim for accidental disability retirement benefits pursuant N.J.S.A. 18A:66-39(c).*fn1 The Teachers' Pension and Annuity Fund Board ("Board") subsequently determined that Ms. Kasper was totally and permanently disabled from the performance of her duties, that her disability was the direct result of a "traumatic event" and that she qualified for an ordinary service retirement. However, the Board denied Ms. Kasper's application for accidental disability retirement benefits because the traumatic event did not occur "during and as a result of the performance of her regular or assigned duties" as required by statute.

Ms. Kasper challenged the Board's determination. Following a hearing, the Administrative Law Judge (ALJ) recommended to the Board that it deny Ms. Kasper accidental disability retirement.

The ALJ found that a traumatic event occurred while Ms. Kasper was "within the physical boundaries of her place of employment"; that she "had voluntarily come to the school to perform regular or assigned duties before hours"; and that her doing so had not violated any work rules of her employer. The ALJ framed the dispositive question before him as whether Ms. Kasper "had actually completed her regular morning commute to work and had commenced the voluntary portion of her work day. . . ." The ALJ reasoned that "an event which occurs before `performance' and before arrival `at a place of employment' cannot serve as the predicate event for an accidental disability pension award":

Ms. Kasper had entered the school's physical property, but not yet into the building itself. Her physical presence within the school grounds at the time of the assault is not a factor sufficient to overcome the reality that the assault actually occurred as she neared the end of her normal commute to work. It seems clear that had she been assaulted in the public roadway in front of the school, off of the property owned by the Board, she could not realistically claim to have commenced her performance of duties at the moment of the assault. The fact that she took a few steps more onto the Board's property is not sufficient to remove this incident from an event which occurred during the `coming' stage to one occurring after commencement of duties, nor does that statutory amendment expanding the scope of duties to include voluntary performance of duties before or after required hours of employment avail the claimant. There were no duties for Ms. Kasper to perform until she at least entered the building. Again, the harder question would be posed if the assault had occurred within the school building while she was proceeding down the corridor and before she reached the principal's office and actually began her duties.

The Board agreed and denied Ms. Kasper an accidental disability pension.

In an unpublished opinion, the Appellate Division affirmed the Board's determination. Applying the traditional principle that a reviewing court must accord an agency determination great deference, the Appellate Division held that "Kasper's regular early arrival at work . . . did not convert the assault occurring outside the school building to a traumatic event occurring during the voluntary performance of her regular or assigned duties."

We granted Ms. Kasper's petition for certification. 162 N.J. 661 (1999). On appeal, she claims that the ALJ and the Appellate Division erred by not considering the impact of a 1986 amendment to N.J.S.A. 18A:66-39(c) that states:

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.

She argues that that language expanded the meaning of the phrase "during and as result of the performance of his regular or assigned duties." She also contests the conclusions of the ALJ and the Appellate Division because they were "based on workers' compensation principles" that do not govern accidental disability claims. The New Jersey Education Association filed a brief supporting Ms. Kasper.

The Board counters that Ms. Kasper's interpretation of N.J.S.A. 18A:66-39(c) is incorrect. In support, it argues that Ms. Kasper was not in a "pre-shift period" to her duties; that she had not entered the school building or started her workday; and that she was in transit, albeit almost to the door of her workplace, when the incident took place. Thus, the Board maintains that Ms. Kasper is not entitled to accidental disability because she was not injured during and as a result of the performance of her regular or assigned duties.

I.

Pursuant to the Teachers' Pension and Annuity Fund Law (TPAF), N.J.S.A. 18A:66-1 to -93, there are two ways in which an education professional can receive retirement benefits upon becoming permanently incapacitated: ordinary disability and accidental disability. N.J.S.A. 18A:66-39(b) and (c). Ordinary disability is conferred when a teacher, who is a member of the retirement system, is "physically or mentally incapacitated for the performance of duty and should be retired." N.J.S.A. 18A:66-39(b). Accidental disability is awarded

if a member 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. . . . [N.J.S.A. 18A:66-39(c).]

Those pensions are dramatically different. A person retired on an ordinary disability pension is guaranteed an allowance of at least forty percent of his or her final compensation, whereas one retired on an accidental disability pension is guaranteed two-thirds of his or her actual annual compensation at the time of the accident. N.J.S.A. 18A:66-41 and 18A:66-42; Steinmann v. State, Dept. of Treasury, Div. of Pension, TPAF, 116 N.J. 564, 567 (1989). Because higher benefits flow to the recipient of an accidental disability award than to one who receives an ordinary disability award, Maynard v. Board of Trustees, TPAF, 113 N.J. 169, 172 (1988), the standards applicable to the former are more stringent than those applicable to the latter. To receive an ordinary disability pension, incapacitation is all that is required. To qualify for an accidental disability retirement benefit, the applicant must (1) be permanently and totally disabled (2) as a direct result (3) of a traumatic event (4) that occurred during and as a result of the performance of regular job duties.

The other major public employee pension funds (Public Employees' Retirement System (PERS), N.J.S.A. 43:15A-1 to -141, and the Police and Firemen's Retirement System (PFRS), N.J.S.A. 43:16A-1 to -68) are governed by accidental disability provisions identical to the TPAF. N.J.S.A. 43:15A-43 and N.J.S.A. 43:16A-7.

The present version of N.J.S.A. 18A:66-39(c) is different from its predecessor. The accidental disability section in the original TPAF, L. 1955 c. 37, § 39, read as follows:

A [TPAF] member who has not attained age 70 shall . . . be retired by the [PERS] board of trustees, if said employee is disabled as a result of personal injuries sustained in or from an accident arising out of and in the course of his employment, on an accidental disability allowance.

Under that statute, an applicant had to prove that (1) he or she was disabled (2) as a result of personal injuries (3) sustained in an accident (4) arising out of or in the course of his or her employment.

One key to evaluating accidental disability retirement claims under the old statute was whether the alleged disability was the result of an accident "arising out of and in the course of the employee's employment." Maynard, supra, 113 N.J. at 171. That statutory language was virtually identical to the language found in the Workers' Compensation Act. N.J.S.A. 34:15-1. Thus, in early accidental disability cases, courts were influenced strongly by developments in the workers' compensation field. Getty v. Prison Officers' Pension Fund, 85 N.J. Super. 383, 390 (App. Div. 1964) (using rationale from workers' compensation cases to determine that disability claimant need only show "reasonable probability" that ordinary work effort or strain contributed to injury); Fattore v. Police and Firemen's Retirement System, 80 N.J. Super. 541, 549 (App. Div.) (holding that "principles of the Workmen's Compensation Act as construed should be applied in passing upon the issue of causal connection between the work effort and the alleged accidental injury" in public employee disability pension actions), certif. denied, 41 N.J. 245 (1963); Roth v. Board of Trustees, PERS, 49 N.J. Super. 309, 317 (App. Div. 1958) (following standards for employment-relation in workers' compensation field to award PERS death benefits).

In 1966 and 1967, there was a "concerted legislative effort to effect a basic change in the standards for awarding accidental disability retirement pensions"; identical amendments were enacted with respect to the accidental disability pensions provided in the several major state pension systems that "changed [them] fundamentally." Gerba v. Board of Trustees, PERS, 83 N.J. 174, 183 (1980). Those amended statutes included the TPAF Law.*fn2 The amendments provided that, in order to receive accidental disability benefits, an employee must establish that he or she was "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." See N.J.S.A. 18A:66-39(c). Thus, the statute was clearly altered in four ways: "disability" became "permanent and total disability"; "accident" became "traumatic event"; "result" became "direct result"; and "arising out of and in the course of employment" became "during and as a result of the performance of his regular or assigned duties." Those amendments expressed the Legislature's disapproval of decisions that had applied workers' compensation principles in determining what constituted an "accident" in the pension context.*fn3 Russo v. Teachers' Pension and Annuity Fund, 62 N.J. 142, 149 (1973).

We have already declared that the purpose of those amendments was to make the granting of an accidental disability pension more difficult. Cattani v. Board of Trustees, PFRS, 69 N.J. 578, 586 (1976); Gerba, supra, 83 N.J. at 183. We have also specifically addressed two of the four changes brought about by the amendment. First, the traumatic event language obviously raised the bar for determining what kind of an injury qualified a petitioner for an accidental disability pension. Gable v. Board of Trustees, PERS, 115 N.J. 212, 219-20 (1989) (citing Cattani, supra, 69 N.J. at 586). See Russo, supra, 62 N.J. at 153-54 (recognizing that substitution of phrase "traumatic event" for "accident" was intended to create narrower class of situations in which accidental disability pensions were granted).

[T]o be eligible for accidental disability retirement allowance, a worker must demonstrate (1) that his injuries were not induced by the stress or strain of the normal work effort; (2) that he met involuntarily with the object or matter that was the source of the harm; and (3) that the source of the injury itself was a great rush of force or uncontrollable power. [Kane v. Board of Trustees, PFRS, 100 N.J. 651, 663 (1985).]

In short, "the legislature intended that an accidental disability pension ought to be awarded in cases of serious and permanent harm to the worker, in which the worker himself is exposed to ...


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