MARISA HENDERSON VS. BOARD OF TRUSTEES (PUBLIC EMPLOYEES' RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE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-2666-18T3

MARISA HENDERSON,

Plaintiff-Appellant,

v.

BOARD OF TRUSTEES,

PUBLIC EMPLOYEES'

RETIREMENT SYSTEM,

Defendant-Respondent.

___________________________

Argued telephonically March 24, 2020 –

Decided May 18, 2020

Before Judges Fisher and Gilson.

On appeal from the Board of Trustees of the Public

Employees' Retirement System, Department of the

Treasury, PERS No. 2-10-316238.

Samuel Michael Gaylord argued the cause for appellant

(Gaylord Popp, LLC, attorneys; Samuel Michael

Gaylord, on the brief).

Alison Keating, Deputy Attorney General, argued the

cause for respondent (Gurbir S. Grewal, Attorney

General, attorney; Melissa H. Raksa, Assistant

Attorney General, of counsel; Alison Keating, on the

brief).

PER CURIAM

Appellant, Marisa Henderson, appeals from a final agency decision by the

Board of Trustees, Public Employees' Retirement System (Board) that denied

her application for accidental disability retirement benefits. Discerning nothing

arbitrary, capricious, or unreasonable in the Board's decision, we affirm.

I.

For approximately twelve years, appellant worked as a secretarial

assistant at The College of New Jersey. In 2015, she was an assistant to a vice -

president at the college and her duties included secretarial work.

On January 22, 2015, and February 3, 2015, appellant was exposed to

odors from Mistolin, a commercial cleaning product. According to appellant,

on both occasions she smelled a strong odor after the regular cleaning crew had

sprayed a cleaning product in the area around where she was working. Shortly

thereafter, she had difficulty breathing and both times she was taken to a hospital

to be examined. Following the incident on February 3, 2015, appellant did not

return to work.

In August 2016, appellant filed for accidental disability retirement

benefits. On January 18, 2017, the Board determined that appellant was totally

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and permanently disabled from working and granted her ordinary disability

retirement. The Board denied her application for accidental disability finding

that her disability was not a result of a traumatic event because "there was no

actual accident or external happening."

Appellant administratively appealed and the matter was transferred to the

Office of Administrative Law as a contested case. On July 25, 2018, an

Administrative Law Judge (ALJ) conducted a one-day hearing and heard

testimony from appellant, who was the only witness. The ALJ issued an initial

decision on December 6, 2018, affirming the denial of appellant's application

for accidental disability.

The ALJ found that the only issue presented to him was whether

appellant's disability was caused by "a traumatic event." In that regard, the ALJ

noted that the Board had previously determined that appellant was permanently

disabled from performing her usual duties, both incidents occurred when she

was at work, and the disability was not the result of her willful negligence. The

ALJ then found that neither incident was a traumatic event because nothing

unexpected happened. Specifically, the ALJ found that Mistolin was a common

product used by cleaning crews and there was no evidence that an inordinate

amount of the chemical was used. The ALJ then concluded:

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The cleaning crew participated in cleaning the office as

they had done for the prior three years. There was no

testimony form the appellant that she was sprayed with

the chemical unexpectedly nor was there any credible

expert testimony that the chemical used was used in an

improper or hazardous matter. Simply put, there was

no evidence or testimony that would support that a

traumatic event occurred.

On January 22, 2019, the Board adopted the ALJ's decision and affirmed

the denial of the application for accidental disability retirement benefits. 1

Appellant appeals from the Board's decision.

II.

On appeal to us, appellant argues that the two incidents were traumatic

events and, therefore, she is entitled to accidental disability benefits. Appellant

also contends that the ALJ erred in considering the issue of whether the events

were undesigned and unexpected. We disagree and affirm.

Our review of an administrative agency determination is limited. In re

Carter, 191 N.J. 474, 482 (2007). We will sustain a board's decision "unless

there is a clear showing that it is arbitrary, capricious, or unreasonable, or that

it lacks fair support in the record." Russo v. Bd. of Trs., Police & Firemen's Ret.

1

The Board made two minor factual modifications to the ALJ's decision. The

Board noted that the ALJ had twice cited to the disability application when the

factual support for those cites was from the applicant's interrogatory answers.

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Sys., 206 N.J. 14, 27 (2011) (quoting In re Herrmann, 192 N.J. 19, 27-28

(2007)). Under this standard our scope of review is guided by three major

inquiries: (1) whether the agency's decision conforms with relevant law; (2)

whether the decision is supported by substantial credible evidence in the record;

and (3) whether in applying the law to the facts, the administrative "agency

clearly erred in reaching" its conclusion. In re Stallworth, 208 N.J. 182, 194

(2011) (quoting Carter, 191 N.J. at 482-83).

We are not bound by an agency's statutory interpretation or other legal

determinations. Russo, 206 N.J. at 27 (quoting Mayflower Sec. Co. v. Bureau

of Sec., 64 N.J. 85, 93 (1973)). Nevertheless, we accord "substantial deference

to the interpretation given" by the agency to the statute it is charged with

enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n, 144 N.J. 16,

31 (1996) (citing Merin v. Maglaki, 126 N.J. 430, 436-37 (1992)). "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." Piatt v. Police & Firemen's Ret. Sys., 443 N.J.

Super. 80, 99 (App. Div. 2015) (first citing Richardson v. Bd. of Trs., Police &

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Firemen's Ret. Sys., 192 N.J. 189, 196 (2007); then quoting In Re Election Law

Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010)).

A claimant seeking accidental disability retirement benefits must prove

five factors:

1. that he [or she] 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

c. caused by a circumstance external to the

member (not the result of pre-existing

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 [or her] usual or any

other duty.

[Richardson, 192 N.J. at 212-13.]

See also N.J.S.A. 43:15A-43.

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To be traumatic, an event must be "undesigned and unexpected."

Richardson, 192 N.J. at 212. "The polestar of the inquiry is whether, during the

regular performance of [her] job, an unexpected happening, not the result of pre-

existing disease alone or in combination with the work, has occurred and directly

resulted in the permanent and total disability of the member." Id. at 214.

Here, the ALJ found, and the Board agreed, that there was no evidence of

an unexpected happening. In that regard, the ALJ noted that the building where

appellant worked was regularly cleaned and there was no evidence that appellant

was exposed to an unusual amount of cleaner or that the cleaning product used

was hazardous. Given our limited standard of review, we discern no basis to

disagree with the factual findings made by the Board or its legal conclusion that

appellant had not established that she was entitled to accidental disability

retirement benefits.

Appellant also argues that the ALJ went beyond the scope of the issue that

was presented at the contested hearing. Specifically, appellant contends that the

only issue that should have been addressed was whether there was an accident

or an external happening. Appellant goes on to contend that she limited her

evidence to that issue and thereby was prejudiced. We discern no prejudice.

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In its initial determination, the Board specifically found that appellant's

disability did not result from "a traumatic event." Consequently, the issue of

whether there was a traumatic event was properly before the ALJ. The question

of whether an event is a traumatic event includes a determination whether the

event was undesigned and unexpected. See id. at 212-13; N.J.S.A. 43:15A-43.

Consequently, the issue of whether the incident was undesigned and unexpected

was properly before the ALJ. It was appellant's obligation to prove that her

disabling injury was "a direct result of an identifiable, unanticipated mishap."

Brooks v. Bd. of Trs., Pub. Employee Ret. Sys., 425 N.J. Super. 277, 284-85

(App. Div. 2012) (quoting Richardson, 192 N.J. at 213). She failed to establish

an unanticipated mishap.

Affirmed.

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