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Bowser v. Board of Trustees

Superior Court of New Jersey, Appellate Division

June 13, 2018

KRISTY BOWSER, Petitioner-Appellant,
v.
BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent.

          Argued May 14, 2018

          On appeal from the Board of Trustees of the Police and Firemen's Retirement System, Department of the Treasury, PFRS No. 3-10050623.

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

          Robert E. Kelly, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; George E. Loeser, Deputy Attorney General, on the brief).

          Before Judges Sabatino, Ostrer and Rose.

          OPINION

          OSTRER, J.A.D.

         The Police and Firemen's Retirement System Board of Trustees denied Kristy Bowser an accidental disability pension.

          Without dispute, she was "permanently and totally disabled as a direct result of a traumatic event" at the Mercer County Correctional Center (MCCC), where she was a correctional officer. See N.J.S.A. 43:16A-7(1). She suffered her disabling injury by falling on an icy patch near the MCCC's parking lot. The sole question in Bowser's appeal is whether the Board erred in finding that her fall did not "occur[] during and as a result of the performance of [her] regular or assigned duties . . . ." Ibid.

         Bowser fell while retrieving feminine hygiene products from her car. She needed them while, unexpectedly, serving a second consecutive shift. We conclude she suffered her injury during the equivalent of a restroom break "within the confines of the workday at the work location." Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 586 n.7 (2000). The Supreme Court stated such restroom breaks are included within "the performance of an employee's actual duties . . . ." Id. at 585-86. We therefore reverse.

         I.

         Bowser was the sole witness in the hearing before the Administrative Law Judge (ALJ). Her testimony was undisputed. Bowser was a fourteen-year veteran of the Mercer County Corrections department when the accident occurred. On the day of the accident, she had worked her assigned 11:00 p.m. to 7:00 a.m. shift overseeing inmates in a housing unit. During that shift, her commander told her she had to work another eight-hour shift on a detention floor, starting at 7:00 a.m., because another officer "called out." At about 7:30 a.m., Bowser asked a fellow officer on the detention floor to cover for her, as she would if she had to use the restroom. Bowser needed to run to her car to retrieve feminine hygiene products because she was menstruating. As with a bathroom break, Bowser did not "clock out" when she went to her car, and was paid for the break time.

         Her car was parked on the MCCC grounds, in an area reserved for corrections officers. On the way to her car, while walking near an internal service road on MCCC grounds, she slipped on black ice and fell. She was about fifteen to twenty feet from the jail. Another officer who happened to be arriving helped her get up. She continued to her car, then returned to the building, went to the restroom, and "got [herself] back together." Fifteen or twenty minutes later, her commander relieved her for the day, as someone arrived to perform the shift.

         The Board stipulated that Bowser was totally and permanently disabled from performing her regular and assigned job duties. It also stipulated that her disability directly resulted from her fall, and her fall did not result from her willful negligence. In his proposed decision, the ALJ found that Bowser's injury was undesigned and unexpected, and it occurred "during and as a result of the performance of [her] regular or assigned duties." See N.J.S.A. 43:16A-7(1). In so doing, the ALJ rejected the Board's initial position to the contrary on both points.

         In sum, the ALJ found that Bowser met the five requirements for receiving an accidental disability pension, which the Court identified in Richardson v. Board of Trustees, Police and ...


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