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NOT FOR PUBLICATION WITHOUT THE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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