# Kasper v. TEACHERS'PEN. & ANN. FUND > Supreme Court of New Jersey · July 18, 2000 · 164 N.J. 564 URL: https://www.frixlaw.com/law-library/cases/9701957 ## Case - **Full name:** Helen Kasper, Petitioner-Appellant, v. Board of Trustees of the Teachers’ Pension and Annuity Fund, Respondent-Respondent - **Court:** Supreme Court of New Jersey - **Decided:** July 18, 2000 - **Citations:** 164 N.J. 564; 754 A.2d 525; 2000 N.J. LEXIS 782 - **Precedential status:** Published - **Opinion:** Concurrence by Coleman - **Judges:** Long, Coleman - **Cited by:** 65 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9701957 ## How later opinions describe it (automated extraction) - noting the presumption that a change evidences "a departure from the old law," is strongest when the Legislature does not overhaul the entire statute but enacts only "an isolated independent amendment" - 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" - recognizing different benefit levels ## Opinion text COLEMAN, J., concurring in the Court’s judgment. I write separately because I would use a slightly different analytical approach to reach the same ultimate conclusion as the *589 Court: that Kasper has satisfied the statutory requirements for an accidental disability pension. I. The task of construing N.J.S.A. 18A:66-39(c) is made easier when the statute is broken into component elements. Petitioner had to establish the following elements to be entitled to a disability pension: (1) she was under 65 years of age, (2) she is permanently and totally disabled, (3) her permanent and total disability was directly caused by a traumatic event, (4) the traumatic event occurred during the performance of her regular or assigned duties, (5) the traumatic event occurred as a result of the performance of her regular or assigned duties, (6) the traumatic event occurred at her place of employment, and (7) the traumatic event occurred at her place of employment either before, during, or after required hours of employment that are not violative of any law, valid work rule of the employer or otherwise prohibited by the employer. Ibid. In this case, elements numbered one, two, three, and seven are uncontested. Thus, the issues raised focus on elements four, five, and six. The assault occurred on the steps outside the building in which Kasper performed her work. That, to me, clearly falls within her “place of employment.” The Legislature chose not to limit “a place of employment” to a particular area in a building. The front steps to the building in which petitioner worked are as much a part of the physical plant comprising her place of employment as the principal’s office or the media room. This is not a “going and coming” ease within the contemplation of our workers’ compensation law. Kasper’s commute to work under the “going and coming” rule ended when she placed one foot on the first step or a hand onto an attached handrail. N.J.S.A. 18A:66-39(c) is devoid of any suggestion that to be at her place of employment, petitioner had to have arrived at the part of the premises in which her duties were to be performed. The Legislature did not draw curtains around the cubicles in which *590 many people work, including our law clerks, to constrict their “place of employment.” When a single employer occupies an entire structure, that entire structure, including the exterior and interior steps, comprise the place of employment. The administrative cases cited by the parties simply establish that an employee who is still in transit, on the street, a sidewalk or parking lot, has not arrived at his or her place of employment for purposes of pension analysis: Significantly, none of those cases involved an employee who had reached the physical structure of his or her place of employment except Fulco v. Board of Trustees, 3 N.J.A.R. 298 (1981). Fulco involved a teacher who was injured opening a window in her classroom twenty minutes prior to the start of the school day. I believe Fulco and the petitioner in the present case satisfied the sixth element. II. The focus now shifts to the fourth and fifth elements: whether the traumatic event occurred during and as a result of the performance of petitioner’s regular or assigned duties. A. Although workers’ compensation law, with its much broader scope, does not control the availability of accidental pensions, Russo v. Teachers’ Pension and Annuity Fund, 62 N.J. 142, 146 , 299 A.2d 697 (1973), and the same applies to tort law as evolved from the common law, in light of the similarity of issues and the lack of legislative direction on the definition of the fourth and fifth elements, our jurisprudence in those two areas can be enlightening. The fourth element, requiring the traumatic event to have occurred during the performance of petitioner’s regular or assigned duties, should be construed to refer to the time, place, and circumstances of the traumatic event. A traumatic event occurs during the performance of a work assignment if it occurs while the employee is doing what a person so employed may reasonably be *591 expected to be doing at the time in order to fulfill the assignment. The timing of the traumatic event must occur during the regular work day or within a reasonable time before or after the regularly or specially designated work day starts or ends. See Coleman v. Cycle Transformer Corp., 105 N.J. 285, 288-92 , 520 A.2d 1341 (1986). The fifth element, requiring the traumatic event to have occurred as a result of the performance of petitioner’s regular or assigned work, refers to the causal link between the traumatic event and the employment. The requirement that the traumatic event occur as a result of the performance of the petitioner’s work, under tort law, means legal causation or proximate cause. Although the concept of proximate cause resists a clear definition, “we have described [it] as a standard for limiting liability for the consequences of an act based ‘upon mixed considerations of logic, common sense, justice, policy and precedent.’ ” Scafidi v. Seiler, 119 N.J. 93, 101 , 574 A.2d 398 (1990) (citations omitted). I am confident that the Legislature intended that the statute in question be interpreted in a manner that is consistent with logic, common sense, justice, policy, and precedent. Under our precedents, proximate cause has been defined as “any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred.” Fernandez v. Baruch, 96 N.J.Super. 125, 140 , 232 A.2d 661 (App.Div.1967), rev’d on other grounds, 52 N.J. 127 , 244 A.2d 109 (1968). When viewed in the context of the “but for” proximate cause standard, the work assignment must have been at least a contributing cause of the traumatic event when considering the totality of the circumstances surrounding the employment. Under that standard, unless it can be said that it was more probable than not that the traumatic event would have occurred under the normal circumstances of life outside of the place of employment, the necessary causal connection has been established. See Kulas v. Public Service Elec. And Gas. Co., 41 N.J. 311, 317 , 196 A.2d *592 769 (1964); Restatement (Second) of Torts § 432(1) (1965). Any enhanced risk associated with Kasper’s early arrival at her school is subsumed within the proximate cause determination. When the facts in the present case are examined in the context of the foregoing legal principles and the controlling cases, petitioner is entitled to an accidental disability pension. B. In re Carlson, 174 N.J.Super. 603, 605 , 417 A.2d 103 (App.Div. 1980), raised the identical question posited here: “Do the time and place of the occurrence [of a traumatic event] mandate exclusion from statutory coverage because the event did not occur ‘during and as a result of the performance of (Carlson’s) regular or assigned duties?’ ” There, teachers were required to arrive at the school twenty minutes before the school day began, the signal for which was the ringing of the bell. The teachers were, however, free to use that twenty minutes for whatever purpose they chose. When the bell rang, Carlson, preparing to leave the teacher’s lounge to go to the playground door to meet her students, id. at 607 , 417 A.2d 103 , fell heavily to the floor on her back when her feet went out from under her. Id. at 606 , 417 A.2d 103 . The court held that “the movement of the teacher from where she is on the school premises to where she is compelled to go to meet [her students], at the time when that act is required to be done, is an injury sustained during and as a result of the performance of regular or assigned duties.” Id. at 607-08 , 417 A.2d 103 . Thus the court in Carlson held that the teacher satisfied both the fourth and fifth elements of the statute, the ones primarily at issue here. The court rejected the ALJ’s notion that any time prior to actually meeting with students was merely preparatory to her actual performance of her assigned work, and therefore not covered. Two years later those same principles were applied in Pollara v. Police & Fire Retire. Sys. Trustees, 183 N.J.Super. 505, 509-10 , 444 A.2d 616 (App.Div.1982). There, a policeman was required to report to the station house fifteen minutes before roll call. Pollara *593 reported as required and while walking upstairs from the locker room where he dressed, he fell when a handrail broke. The Appellate Division held that Pollara was controlled by Carlson , and concluded that the scope of the “as a result of’ test extended to cover conduct preliminary and necessary to the actual performance of the required duty. Id. at 510, 444 A.2d 616 . Petitioner’s injury falls squarely within the “as a result of test,” as extended by Carlson and Pollara . I find no justification to conclude that it matters whether a worker is located on exterior steps about to open the door and step inside .the building in which he or she works, has just stepped inside the building, is climbing interior steps, or is about to step outside to take charge of students. Under Carlson , whether one is injured just outside or inside the door, in my view, both should be covered. Petitioner argues, persuasively, that early arrival at work to satisfy her employer’s expectations is partial performance of her duties. Carlson and Pollara are persuasive authority supporting Kasper’s claim. It can hardly be expected that petitioner would be able to have all of the required media materials distributed by the start of school at 8:45 a.m. if she did not arrive early. Indeed, her principal agreed that she should arrive early. The school did not mandate an exact time for her to arrive at the building, as was the ease in Carlson and Pollara . However, it effectively created that requirement by demanding that a portion of her job duties be completed by 8:45 a.m. As a result, her mandatory work day began at such a time that would allow her to distribute the materials in a timely manner. Cf. Pollara, supra, 183 N.J.Super. at 511 , 444 A.2d 616 (finding that the shift actually began at 7:30 despite the official 7:45 starting time). To hold otherwise would allow employers to escape disability-pension-benefit responsibilities by requiring pre- or post-workday duties without setting the precise time when the workday begins and ends. As the court in Pollara so astutely reasoned, and equally applicable to this case: “Leaving aside the ‘during’ test, we conclude that a reasonable interpretation of the statute mandates *594 a finding that petitioner here was hurt ‘as a result of performing a regular duty.” 183 N.J.Super. at 510 , 444 A.2d 616 . Further, additional language in Pollara is supportive of petitioner’s position in this case. “[She] was required by [her] employment to be in the [school] before [her] shift began and [she] was required to [have all media materials in place] when the [8:45] bell rang; climbing the stairs [to the school door] was a ‘necessary maneuver’ which was as much a job requirement as was actual attendance [in school at 8:45].” Ibid. Also applicable to this case is the court’s holding in Pollara that the activities performed by the officers prior to the official start of their shift, including- climbing stairs, were sufficiently connected to the furtherance of their job duties to fulfill the “during” component of the statute. Id. at 511 , 444 A.2d 616 . Pollara acknowledged the legislative intent underlying the 1964 amendment to the relevant statute, N.J.S.A. 43:16A-7(1), to rein in “liberal application of the statute” and tighten pension eligibility, but the court noted that “the pension statute as amended must still be construed with reasonable liberality in favor of those intended to be benefitted.” Id. at 510-11 , 444 A.2d 616 . As the Court acknowledges, all of the pension statutes are similar and the purposes behind their amendments overlap, compelling similar interpretations. I am convinced, therefore, that the Legislature did not intend to exclude from coverage employees who are involved in “conduct preliminary but necessary to the actual performance of the required duty.” Pollara, supra, 183 N.J.Super. at 510 , 444 A.2d 616 . The legislative history informs us that the 1986 amendment to the accidental disability statute was designed to broaden the category so that a member’s disability would qualify him or her for accidental disability allowance if it were the result of a traumatic event that occurred during and as a result of the petitioner’s regular or assigned work. See Assembly State Gov’t. Committee Statement, Assembly Bill No. 491, February 13, 1986. Consequently, under my slightly different approach, I, too, would reverse the judgment of the Appellate Division. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9701957. Public record. Not legal advice.