Opinion
DOCKET NO. A-0377-13T1
03-06-2015
YESSENIA MONTALVO, Petitioner-Appellant, v. POLICE AND FIREMEN'S RETIREMENT SYSTEM, Respondent-Respondent.
Fusco & Macaluso Partners, LLC, attorneys for appellant (Amie E. DiCola, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jeff S. Ignatowitz, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh and Maven. On appeal from the Board of Trustees, Police and Firemen's Retirement System. Fusco & Macaluso Partners, LLC, attorneys for appellant (Amie E. DiCola, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jeff S. Ignatowitz, Deputy Attorney General, on the brief). PER CURIAM
Petitioner Yessenia Montalvo appeals the final administrative agency decision of the Board of Trustees (Board) of the Police and Firemen's Retirement System denying her application for accidental disability benefits. We affirm.
I.
We discern the following factual and procedural background from the record on appeal.
Montalvo was a member of the Newark Police Department for thirteen years. On March 23, 2011, she submitted an application for accidental disability retirement benefits based on her assertion that she had been sexually assaulted by a fellow officer while on duty.
On September 19, the Board denied Montalvo's application. Although it found that Montalvo was "totally and permanently disabled from the performance of [her] regular and assigned job duties," that she was "physically or mentally incapacitated from the performance of [her] usual duties," and that her "reported disability [was] not the result of [her] willful negligence," the Board nevertheless concluded that she was not entitled to accidental retirement benefits. The Board explained that it
could find no evidence that the event was objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury; as your [sic] did not result from "direct personal experience of a terrifying or horror-inducing event that involved actual or threatened death or serious injury or a similarly serious threat to physical integrity of the member of another person."
Montalvo appealed the Board's determination and the matter was transferred to the Office of Administrative Law (OAL) as a contested case. The administrative law judge (ALJ) assigned to the case held an evidentiary hearing on June 28, 2013. Montalvo was the only witness at the hearing.
Montalvo testified that she was on duty on August 23, 2009. She went to Newark Municipal Court to obtain a warrant for one of her active investigations. After obtaining the warrant, she went to the apartment of Louis Weber, a fellow Newark police officer, to return a pair of karate pants that she had mended for him.
When Montalvo arrived at the building, she telephoned Weber to let him know she was outside. He invited her upstairs to see his new apartment. Montalvo testified that, while she was in the apartment, Weber sexually assaulted her by grabbing her hair and forcing himself on her. Montalvo left Weber's home and returned to her precinct. She did not disclose the incident to her supervisors at that time. More than a year later, after she had checked herself into the hospital for stress and depression, she reported the incident to her supervisors.
The ALJ issued an initial decision on July 18, 2013. She found that Montalvo "was not acting in any official capacity when, during her shift, she went to the other officer's apartment." She also noted that, by Montalvo's own admission, "[Montalvo] was on duty running errands, which is not defined in the course of her regular or assigned duties. This was purely a personal matter and not included as part of her job." Based on her factual findings, the ALJ concluded that Montalvo was not eligible for accidental disability benefits because she failed to meet all of the requirements established by the Supreme Court in Richardson v. Board of Trustees, Police & Firemen's Retirement System, 192 N.J. 189 (2007). One of those requirements is that "the traumatic event" on which the claim is based "occurred during and as a result of the member's regular or assigned duties." Id. at 213.
Because the work-related requirement was not satisfied, the ALJ did not address the remaining factors for an award of accidental disability retirement benefits under Richardson, including the requirement that the Board had initially relied on in denying the pension.
The Board adopted the ALJ's initial decision on August 5, and entered an order denying Montalvo's application for an accidental disability pension. This appeal followed.
II.
On appeal, Montalvo argues that the Board's final decision, which adopted the ALJ's initial decision, was error because the event precipitating her disability "occurred during and as a result of her regular assigned duties," as required by Richardson.
Our scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007). We accord a "strong presumption of reasonableness" to the agency's exercise of its statutorily delegated responsibilities. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The appellant bears the burden of showing that the agency's action was arbitrary, unreasonable, or capricious. Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).
The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009). Nevertheless, an appellate court is "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
In reviewing administrative adjudications, an appellate court must undertake a "careful and principled consideration of the agency record and findings." Riverside Gen. Hosp. v. N.J. Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 ( 1985). "If the Appellate Division is satisfied after its review that the evidence and the inferences to be drawn therefrom support the agency head's decision, then it must affirm even if the court feels that it would have reached a different result itself." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 588 (1988). If, however, our review of the record leads us to conclude that the agency's finding is clearly erroneous, the decision is not entitled to judicial deference and must be set aside. L.M. v. Div. of Med. Assistance & Health Servs., 140 N.J. 480, 490 (1995). We may not simply rubber stamp an agency's decision. In re Taylor, 158 N.J. 644, 657 (1999).
In Richardson, supra, 192 N.J. at 212-13 (emphasis added), the Supreme Court determined that an individual seeking accidental disability benefits must establish:
1. that he is permanently and totally disabled;
2. as a direct result of a traumatic event that is
a. identifiable as to time and place,
b. undesigned and unexpected, and
In Patterson v. Board of Trustees, State Police Retirement System, 194 N.J. 29, 34 (2008), the Court held that in addition to the standards enunciated in Richardson, an applicant for accidental disability retirement as a result of "a so-called mental-mental injury," must also establish a sixth factor:c. caused by a circumstance external to the member (not the result of preexisting disease that is aggravated or accelerated by the work);
3. that the traumatic event occurred during and as a result of the member's regular or assigned duties;
4. that the disability was not the result of the member's willful negligence; and
5. that the member is mentally or physically incapacitated from performing his usual or any other duty.
The disability must result from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person. By that addition, we achieve the important assurance that the traumatic event posited as the basis for an accidental disability pension is not inconsequential but is objectively capable of causing a reasonable person in similar circumstances to suffer a disabling mental injury.
N.J.S.A. 43:16A-7(1) also requires an applicant to be 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." In Kasper v. Board of Trustees, Teachers' Pension and Annuity Fund, 164 N.J. 564, 587-88 (2000), the Court specifically addressed the requirement that the traumatic event occur "during and as a result of the performance of his regular and assigned duties":
The organizing principle is that one who is at the employer's premises solely to do his or her duty, and who, while doing what he or she is expected to do, is disabled by a traumatic accident, will qualify for inclusion in the class of those injured "during and as a result of the performance of his regular or assigned duties." That interpretation is faithful to the Legislature's restorative vision in amending N.J.S.A. 18A:66-39(c). As we previously noted, the amendment was not transformative. It was not intended to limit the accidental disability pension solely to an injury sustained while a teacher is writing on the blackboard in her classroom or a policeman is actually engaged in an arrest. On the contrary, it was meant to restore the integrity of the premises rule; to reinvigorate the going and coming rule; and to qualify for an accidental disability pension an employee who is on premises controlled by the employer and whose injury is causally connected, as a matter of common sense, to the work the employer has commissioned.
The premises rule encompasses activities preparatory to but essential to the actual duty. Id. at 585. "[O]n-premises lunch and restroom breaks that are necessary concomitants of an employee's performance of his or her regularly assigned tasks" are included "so long as they occur within the confines of the workday at the work location." Id. at 586 n.7.
An employee who is injured while off-premises is not automatically excluded from accidental disability protection. Id. at 585 n.6 (observing that the concept of regularly assigned duties "covers all activities engaged in by an employee who the employer assigns to work off premises from the formal beginning to the formal end of the workday"). Nevertheless, compensable off-premises activities must still involve the employee's regular or assigned duties as statutorily required under N.J.S.A. 43:16A-7(1).
The Board's denial of benefits, based on the ALJ's finding that Montalvo was running personal errands at the time of the alleged sexual assault, even though the event occurred during her work shift, is not arbitrary, capricious, or unreasonable. Montalvo cannot argue that she was performing police business at the time she went into Weber's apartment to drop off the pants she had mended and to view his new apartment.
We need not reach the issue of whether an event that took place while patrol officers were eating off-premise during their normal shift would qualify an applicant for an accidental disability pension, because those are not the facts of this case, which, as noted, involved a purely personal errand.
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The Board's decision is fully supported in the record of the OAL hearing. Finally, the decision is fully consistent with the requirement of the governing statute, N.J.S.A. 43:16A-7(1), and governing case law, Richardson, supra, 192 N.J. at 212-13, that the injury result from Montalvo's regular or assigned duties. It did not.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION