                                NOT FOR PUBLICATION WITHOUT THE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-4806-17T2

THERESA HICKSON,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
POLICE AND FIREMEN'S
RETIREMENT SYSTEM,

     Respondent-Respondent.
___________________________

                   Argued September 23, 2019 – Decided October 2, 2019

                   Before Judges Geiger and Natali.

                   On appeal from the Board of Trustees of the Police and
                   Fireman's Retirement System, Department of the
                   Treasury, PFRS No. 3-74255.

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

                   Amy Chung, Deputy Attorney General argued the cause
                   for respondent (Gurbir S. Grewal, Attorney General,
                   attorney; Melissa H. Raksa, Assistant Attorney
            General, of counsel; Stephanie Kozic, Deputy Attorney
            General, on the brief).

PER CURIAM

      Petitioner Theresa Hickson appeals from a May 14, 2018 final decision of

respondent the Board of Trustees (Board), of the Police and Firemen's

Retirement System (PFRS) denying her application for accidental disability

retirement benefits. We affirm.

      The facts are essentially undisputed. Hickson was employed by the New

Jersey Department of Corrections as a Senior Corrections Officer assigned to

New Jersey State Prison. Her usual shift began at 7:00 a.m. and concluded at

2:00 p.m. On September 13, 2012, she drove her own car and arrived at the

employee parking lot at 5:45 a.m. The State owns and controls the parking lot,

which is located two blocks from the prison. Hickson parked and began walking

across the lot when she was struck by a vehicle. At the time she was in uniform

but did not have a radio. She suffered injuries to her left knee, tailbone, and

hands. Hickson walked approximately two blocks to the prison entrance and

reported the incident to her shift commander. She was sent to the hospital for

examination and treatment.

      Hickson applied for accidental disability retirement. Pertinent to this

appeal, the Board determined the reported disability was "not the direct result

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                                      2
of a traumatic event, as the event is not caused by a circumstance external to

[Hickson]," but rather "is the result of a pre-existing disease alone or a pre-

existing disease that [was] aggravated or accelerated by the work effort." The

Board found the accident "did not occur during and as a result of your regular

or assigned duties."

      The Board granted Hickson ordinary disability retirement benefits but

denied accidental disability retirement benefits. Hickson appealed the Board's

denial of accidental disability retirement benefits. The matter was transferred

to the Office of Administrative Law as a contested case. The trial was bifurcated

so that "the only issue to be determined was whether or not [Hickson] was

injured on a premise owned or controlled by the employer during and as a result

of her regular or assigned duties as required by N.J.S.A. 43:15A-43."

      The Administrative Law Judge (ALJ) conducted a one-day hearing;

Hickson was the only witness. The record was closed after submission of

written closing arguments. The ALJ issued an April 19, 2018 written Initial

Decision affirming the Board's determination that petitioner is not eligible for

accidental disability retirement benefits. The ALJ made the following findings:

                  In her application for accidental retirement
            benefits, Hickson wrote that she was struck by a car
            while in the parking lot of the prison; that she sustained


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                                        3
           injuries; and that she can no longer perform her regular
           or assigned duties.

                 At the hearing, Hickson provided greater detail.
           Hickson testified that she arrived at the employee
           parking lot at approximately 5:45 a.m. She parked at
           the fence and, as she traversed a portion of the parking
           lot near the apron of the entrance, she was struck by a
           car.

                 Hickson described her job duties as providing
           "safety and security of the inmates" as well as
           "supervising inmates." She indicated the role of a
           corrections officer as "you're always on duty." "If you
           see something happening you have to respond to it
           because all of the public is going to expect you to do
           something because you're in uniform." She noted that
           they used to tell you if "you're on your way home if
           something happens you have to do something."

                 More significantly, Hickson was required to
           report to work in full uniform but did not have a radio
           on her person at that time because it was located in the
           booth where her shift was to begin. She was never
           issued any work vehicle and simply drove her personal
           car.

     The ALJ noted "the traumatic event must have occurred during and as a

result of the member's regular or assigned duties." The ALJ distinguished the

facts in this case from those in Kasper v. Board of Trustees of the Teachers’

Pension and Annuity Fund, 164 N.J. 564 (2000), Pollara v. Board. of Trustees.

of the Police and Fireman's Retirement System, 183 N.J. Super. 505 (App. Div.

1982), and In re Carlson, 174 N.J. Super. 603 (App. Div. 1980). Unlike the

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                                      4
petitioners in those cases, the ALJ found Hickson "was in the process of walking

the approximate[ly] two blocks to the prison when she was struck by the car

while still in the parking lot." She was not providing "safety and security of the

inmates" or "supervising inmates" in the parking lot.       The ALJ noted that

"[u]nlike Pollara, Hickson had not already started the actual performance of her

regular or assigned duties. And unlike Kasper, Hickson was not engaged in an

activity preparatory but essential to that duty." Thus, "she was not injured

'during and as a result of the performance of her regular or assigned duties.'"

(Quoting N.J.S.A. 43:15A-43(a)).

      Hickson filed exceptions to the Initial Decision. The Board adopted the

Initial Decision and affirmed the denial of accidental disability retirement

benefits. This appeal followed. Hickson argues the accident occurred during

and in the course of her regular and assigned job duties.

      "Our review of administrative agency action is limited." Russo v. Bd. of

Trs., Police & Fireman's Ret. Sys., 206 N.J. 14, 27 (2011) (citing In re

Herrmann, 192 N.J. 19, 27 (2007)). "Judicial review of an agency’s final

decision is generally limited to a determination of whether the decision is

arbitrary, capricious, or unreasonable or lacks fair support in the record."

Caminiti v. Bd. of Trs., Police & Fireman's Ret. Sys., 431 N.J. Super. 1, 14 (App.


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                                        5
Div. 2013) (citing Hemsey v. Bd. of Trs., Police & Firemen’s Ret. Sys., 198

N.J. 215, 223 (2009)). The factual "findings of an ALJ 'are considered binding

on appeal, when supported by adequate, substantial and credible evidence.'"

Oceanside Charter Sch. v. N.J. State Dep't of Educ., 418 N.J. Super. 1, 9 (App.

Div. 2011) (quoting In re Taylor, 158 N.J. 644, 656 (1999)). "However, we are

not bound by an agency’s statutory interpretation or other legal determinations."

Mattia v. Bd. of Trs., Police & Fireman's Ret. Sys., 455 N.J. Super. 217, 221

(App. Div. 2018) (citing Russo, 206 N.J. at 14, 27).

      A PFRS member may be retired on an accidental disability pension if the

"employee 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." N.J.S.A. 43:15A-43(a). See also Richardson v. Bd. of Trs.,

Police & Fireman's Ret. Sys., 192 N.J. 189, 213–15 (2007) (holding that in order

to qualify for such benefits, a member of the retirement system must establish,

among other things, that "the traumatic event occurred during and as a result of

the member’s regular or assigned duties").

      Hickson argues the Board erred by determining the accident did not occur

during and in the course of her regular and assigned job duties. We disagree.




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                                       6
      Shortly after the Board rendered its final decision, we held that a Senior

Correction Officer who drove to work in his own car, parked his car in the

employee parking lot, exited the car, then slipped and fell on ice in the parking

lot as he walked towards the entrance portal of the prison to begin his shift, "had

not yet completed his commute when he was injured, and was not performing

any function connected to his work assignment when he was injured." Mattia,

455 N.J. Super. at 219, 223. We noted Mattia "was not chasing an escapee, but

merely walking from his car to the prison entrance, when he slipped and fell on

ice in the parking lot." Id. at 223-24.

      The same reasoning applies here. Hickson's shift had not yet begun. She

was walking across the parking lot when struck by a car driven by another

employee. She was approximately two blocks from the entrance to the prison.

She was not chasing an escapee or performing any other job duty. Hickson was

not assigned any essential preparatory work-related task at the time of her injury.

Thus, her "injury was not causally connected to [her] work." Id. at 224. She

was simply going to work.

      Hickson argues the Board misapplied the law in disqualifying her from

accidental disability retirement benefits, and Kasper compels a different result.

We are unpersuaded by this argument.


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                                          7
      In Kasper, the employee had "parked her car, crossed the street to the

school, and was negotiating the stairs" of the school when the incident occurred,

therefore her commute was completed and she was in the performance of her

duties when she was injured. Id. at 588. The Kasper Court made clear that to

qualify for accidental disability retirement benefits, an employee cannot merely

be coming to, or going from work. Id. at 581. Rather, the employee "must be

engaged in his or her employment duties on property owned or controlled by the

employer."   Ibid.     Therefore, "in order to qualify for accidental disability

benefits, employees must satisfy the statutory criteria that they were on the work

premises and performing a function causally connected to their work." Mattia,

455 N.J. Super. at 223 (citing Kasper, 164 N.J. at 588). Hickson does not meet

these requirements.

      We conclude from our review of the record that the Board's decision was

not arbitrary, capricious, or unreasonable. The ALJ's findings, which the Board

adopted, are fully supported by the stipulated facts in the record. Hickson's

claim does not satisfy the criteria for eligibility for accidental disability

retirement benefits.    Accordingly, there is no basis to disturb the Board's

decision. See In re Young, 202 N.J. 50, 71 (2010) (upholding an agency decision




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                                        8
where "there was substantial credible evidence in the record as a whole to

support the agency’s findings").

      Affirmed.




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