                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0568-16T4

KRISTY BOWSER,

     Petitioner-Appellant,               APPROVED FOR PUBLICATION

v.                                            June 13, 2018

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

     Respondent-Respondent.
__________________________________

           Argued May 14, 2018 – Decided June 13, 2018

           Before Judges Sabatino, Ostrer and Rose.

           On appeal from the Board of Trustees of the
           Police and Firemen's Retirement System,
           Department of the Treasury, PFRS No. 3-10-
           050623.

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

           Robert E. Kelly, Deputy Attorney General,
           argued the cause for respondent (Gurbir S.
           Grewal, Attorney General, attorney; Melissa
           H. Raksa, Assistant Attorney General, of
           counsel; George E. Loeser, Deputy Attorney
           General, on the brief).

     The opinion of the court was delivered by

OSTRER, J.A.D.

     The   Police   and   Firemen's   Retirement    System    Board   of

Trustees denied Kristy Bowser an accidental disability pension.
Without dispute, she was "permanently and totally disabled as a

direct   result        of   a    traumatic       event"    at    the       Mercer    County

Correctional      Center         (MCCC),   where        she     was    a     correctional

officer.     See N.J.S.A. 43:16A-7(1).               She suffered her disabling

injury by falling on an icy patch near the MCCC's parking lot.

The sole question in Bowser's appeal is whether the Board erred

in finding that her fall did not "occur[] during and as a result

of the performance of [her] regular or assigned duties . . . ."

Ibid.

      Bowser fell while retrieving feminine hygiene products from

her car.     She needed them while, unexpectedly, serving a second

consecutive shift.              We conclude she suffered her injury during

the equivalent of a restroom break "within the confines of the

workday at the work location."                   Kasper v. Bd. of Trs. of the

Teachers' Pension & Annuity Fund, 164 N.J. 564, 586 n.7 (2000).

The   Supreme    Court        stated    such     restroom       breaks      are     included

within "the performance of an employee's actual duties . . . ."

Id. at 585-86.         We therefore reverse.

                                           I.

      Bowser     was    the      sole   witness    in     the    hearing      before      the

Administrative Law Judge (ALJ).                  Her testimony was undisputed.

Bowser     was   a     fourteen-year         veteran      of     the       Mercer     County

Corrections department when the accident occurred.                            On the day




                                             2                                      A-0568-16T4
of the accident, she had worked her assigned 11:00 p.m. to 7:00

a.m. shift overseeing inmates in a housing unit.                      During that

shift, her commander told her she had to work another eight-hour

shift    on   a    detention    floor,   starting      at   7:00    a.m.,   because

another officer "called out."            At about 7:30 a.m., Bowser asked

a fellow officer on the detention floor to cover for her, as she

would if she had to use the restroom.               Bowser needed to run to

her car to retrieve feminine hygiene products because she was

menstruating.        As with a bathroom break, Bowser did not "clock

out" when she went to her car, and was paid for the break time.

    Her car was parked on the MCCC grounds, in an area reserved

for corrections officers.            On the way to her car, while walking

near an internal service road on MCCC grounds, she slipped on

black ice and fell.          She was about fifteen to twenty feet from

the jail.         Another officer who happened to be arriving helped

her get up.         She continued to her car, then returned to the

building,     went     to    the    restroom,   and     "got       [herself]     back

together."         Fifteen     or   twenty   minutes    later,      her   commander

relieved her for the day, as someone arrived to perform the

shift.

    The       Board     stipulated       that   Bowser       was     totally      and

permanently disabled from performing her regular and assigned

job duties.         It also stipulated that her disability directly




                                         3                                  A-0568-16T4
resulted from her fall, and her fall did not result from her

willful negligence.        In his proposed decision, the ALJ found

that   Bowser's   injury   was   undesigned     and   unexpected,   and    it

occurred "during and as a result of the performance of [her]

regular or assigned duties."           See N.J.S.A. 43:16A-7(1).       In so

doing, the ALJ rejected the Board's initial position to the

contrary on both points.

       In sum, the ALJ found that Bowser met the five requirements

for receiving an accidental disability pension, which the Court

identified   in   Richardson     v.    Board   of   Trustees,   Police    and

Firemen's Retirement System, 192 N.J. 189, 212-13 (2007):

           1. that [s]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
                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.




                                       4                            A-0568-16T4
    In      its     final     decision         denying          Bowser     an     accidental

disability        pension,    the     Board        agreed       that     her     injury     was

undesigned and unexpected, but adhered to its view that the

injury did not arise "during and as a result of the performance

of [her] regular or assigned duties."                            N.J.S.A. 43:16A-7(1).

The Board premised its analysis on the Court's statement in

Kasper     that     an     employee      "must       be    engaged       in     his   or    her

employment        duties     on    property        owned        or   controlled       by    the

employer    in     order     to    qualify         for     an    accidental       disability

pension."     Kasper, 164 N.J. at 581.                      The Board relied on two

unpublished decisions in which our court upheld the denial of

accidental disability pensions to public employees who suffered

disabling injuries in parking lots.                       Recognizing those decisions

involved employees coming to, or going from work, the Board

nonetheless       concluded       that    an       employee      parking       lot    "is   not

considered the employer's premises under Kasper."                                 Therefore,

Bowser's injury on the way to the parking lot did not occur

"during and as a result of her regular or assigned duty."

    This appeal followed.

                                           II.

    We will sustain an administrative agency's quasi-judicial

decision,    as     the    Board    made    here,         "unless      there    is    a    clear

showing that it is arbitrary, capricious, or unreasonable, or




                                               5                                      A-0568-16T4
that it lacks fair support in the record."                      Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011).                        The

"search for arbitrary or unreasonable agency action" may involve

the question "whether the agency's action violates express or

implied legislative policies, that is, did the agency follow the

law . . . ."     Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995).

    As     the   facts   are    undisputed,          whether    Bowser's    injury

occurred "during and a result of her regular or assigned duties"

is a legal question of statutory interpretation, which we review

de novo.     See Saccone v. Bd. of Trs. of Police and Firemen's

Retirement    Sys.,   219    N.J.   369,       380    (2014).      We   may    give

"substantial     deference     to   an       agency's    interpretation       of     a

statute that the agency is charged with enforcing," Richardson,

192 N.J. at 196, particularly when its interpretation involves a

permissible construction of an ambiguous provision, Kasper, 164

N.J. at 581-82, or the exercise of expertise, In re Alleged

Improper Practice, 194 N.J. 314, 332 (2008); A.Z. v. Higher

Educ. Student Assistance Auth., 427 N.J. Super. 389, 394 (App.

Div. 2012).      However, we are "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).




                                         6                                 A-0568-16T4
       In this case in particular, we owe no deference to the

Board's decision, as the Board does not purport to interpret

anew    the    statute        governing         accidental         disability         pensions,

specifically, the provision requiring that disabling accidents

occur   "during        and     as    a    result      of     the       performance        of     [an

employee's]         regular    or    assigned        duties        .   .     .   ."    N.J.S.A.

43:16A-7(1).           Rather,       the    Board         attempts         to    interpret      the

Supreme Court's binding precedent in Kasper, and our court's

unpublished         decisions,      which       do   not    bind       us.       An   agency      is

required to follow judicial precedent interpreting the statute

it implements.         Twp. of Franklin v. Franklin Twp. PBA Local 154,

424 N.J. Super. 369, 378 (App. Div. 2012).

       We     owe     no     deference          to    an     administrative            agency's

interpretation         of     judicial      precedent.             "[A]gencies         have       no

special     qualifications           of     legitimacy        in       interpreting          Court

opinions.           There    is     therefore        no    reason       for      courts     –    the

supposed experts in analyzing judicial decisions – to defer to

agency interpretations of the Court's opinions."                                 Akins v. FEC,

101 F.3d 731, 741 (D.C. Cir. 1996) (en banc), vacated on other

grounds, 524 U.S. 11 (1998).                    See also Miklin Enters., Inc. v.

N.L.R.B.,      861     F.3d       812,    823    (8th      Cir.        2017)     (noting        that

"[n]umerous prior court of appeals decisions have held that the

Board's interpretation of judicial precedent 'is not entitled to




                                                7                                         A-0568-16T4
judicial deference'") (citation omitted); Maine Pub. Serv. Co.

v. Fed. Power Comm., 579 F.2d 659, 665 (1st Cir. 1978) (stating

"a    court   may    pass    judgment    independently"     upon     an    agency's

interpretation of judicial precedent); cf. Mount v. Bd. of Trs.,

Police and Firemen's Ret. Sys., ___ N.J. ___, ___ (2018) (slip

op. at 21) (stating that Court "reviews de novo the Board's

interpretation of N.J.S.A. 43:16A-7(1) and our case law").

       In this case, the Board misinterpreted the Court's decision

in Kasper to preclude categorically accidents occurring in a

public employer's parking lot.1               The Court concluded that the

current     statutory       language    was   "intended   to     reestablish      the

integrity      of   the    premises    rule   and   eliminate     the    judicially

created exceptions to the going and coming rule."                       Kasper, 164

N.J. at 580.        In order for an accident to be eligible, it must

have occurred "on premises owned or controlled by the employer,

and   not     during      activities    encompassed   within      the    myriad    of

coming    and    going     exceptions    that    ha[ve]   sprung    up."      Ibid.

Thus,     "commuting       accidents"    in     parking   lots     would    not    be

eligible.       Ibid.     However, an accident occurring "during or as a


1
  We acknowledge that unpublished decisions of our court have not
taken a uniform approach to accidents in parking lots and other
areas outside a building where a public employee generally
performs assigned duties.     However, those decisions are not
binding. R. 1:36-3. We look to Kasper to guide our resolution
of this case.



                                          8                                A-0568-16T4
result of the actual performance of [an employee's] duties, or

in an activity preparatory but essential to the actual duty" on

the employer's premises would be eligible.                See id. at 585.

     Amplifying     this    concept,     the    Court     held,       "Common    sense

dictates that the performance of an employee's actual duties

incorporates     all    activities      engaged    in     by    the       employee   in

connection with his or her work, on the employer's premises,

from the formal beginning to the formal end of the workday."

Id. at 585-86.      In that regard, the Court made an observation of

particular   relevance      to   this   case:     "Included         are    on-premises

lunch and restroom breaks that are necessary concomitants of an

employee's performance of his or her regularly assigned tasks,

so long as they occur within the confines of the workday at the

work location."        Id. at 586 n.7.

     Although Kasper did not involve a lunch or bathroom break

accident, the Court's statement is controlling.                      "Appellate and

trial   courts    consider       themselves       bound        by    [the]     Court's

pronouncements, whether classified as dicta or not."                         State v.

Dabas, 215 N.J. 114, 136-37 (2013); see also State v. Sorensen,

439 N.J. Super. 471, 488 (App. Div. 2015) (stating that we, as

an   intermediate       appellate    court,       are   "bound        by     carefully

considered dictum from the Supreme Court").                     Notably, at oral




                                        9                                     A-0568-16T4
argument, the Board abandoned its previous position that the

Court's statement was non-binding dictum.

    The Court held that Helen Kasper, a media specialist for

the Newark Board of Education, was entitled to an accidental

disability    pension   after    she   was    injured     outside    her    school

before the official start of the work day.                The Court found she

had already arrived at her work location when she was injured –

notwithstanding that she had only reached her school's front

steps.       Although   she     arrived      early,   she    did     so    with     a

supervisor's approval, to distribute materials to classrooms for

use at the start of the school day.               Thus, "she was engaged in

conduct that was, in every sense, preliminary but necessary to

her early workday media distribution."             Id. at 588.

    The       Court     distinguished          Kasper's       incident         from

administrative     decisions      in      which    pension     boards       denied

accidental     disability     pensions       to   employees        who    suffered

injuries while still on the way to work.              One involved a teacher

who "slipped and fell on ice while walking across [a] school

parking lot towards school [who] was 'on his way to work and was

not yet in the performance of his duties at the time of the

incident.'"     Id. at 581-82 (quoting Estate of Matza v. Bd. of

Trs., TPAF, 96 N.J.A.R.2d 224 (Div. of Pensions)).                  Another case

involved an employee who was in an automobile collision after




                                       10                                  A-0568-16T4
she drove through the front gate of her employer's facility, but

"had not yet reached her normal work location, had not signed

in, and had not begun her usual work duties."                     Id.    at 581

(citing Lewis-Miles v. Bd. of Trs., PERS, TYP 8932-96, initial

decision    (July     16,      1998),        adopted    (Aug.    20,      1998),

http://njlaw.rutgers.edu/collections/oal/final/typ8932-96.pdf).

      Kasper does not support the Board's blanket position that a

parking lot always lies outside a public employer's premises for

purposes of determining eligibility for an accidental disability

pension.    Kasper    construed    the       statute   to   exclude    commuting

accidents, including those that occur in the parking lot.                      Id.

at 580.    In other words, a parking lot lies outside the work

location if it is still part of the journey to or from work.

Consistently, we held today in               Mattia v. Board of Trustees,

Police & Firemen's Retirement System, ___ N.J. Super. ___, ___

(App. Div. 2018) (slip op. at 7-9), that a corrections officer

was   ineligible    for   an   accidental      disability    pension    when   he

suffered his disabling injury while traversing a parking lot on

his way to check in for work, having not yet begun performing

his regular or assigned duties.

      Depending on an employee's regular or assigned duties, the

work location may well include the employer's parking lot.                       A

public employee injured as a result of a traumatic event while




                                        11                              A-0568-16T4
shoveling     an    employer's    parking       lot    as    part   of   his    or   her

maintenance job satisfies the requirement to show the injury

occurred "during and as a result of the performance of his [or

her]    regular     or   assigned     duties."              N.J.S.A.     43:16A-7(1).

Likewise, a physical education teacher, injured as a result of a

traumatic event while running into the parking lot to retrieve

an   errant   soccer     ball    during   a     gym    class   would     satisfy     the

statute.      The    result     depends    on    the    employee's       use    of   the

parking lot.       We do not presume that every post-commute parking

lot accident is covered.            Nor shall we attempt to formulate a

rule for cases not before us.

       Here, Bowser suffered a disabling accidental injury during

her workday, at the work location.               We recognize that Bowser did

not leave the jail on her way to the parking lot in order to

perform assigned duties.            She does not contend she performed

security, or inmate supervision in the parking lot.                            However,

she entered the parking and road area within the confines of the

MCCC property to retrieve necessary feminine hygiene products

from her car because she was, unexpectedly, working a second

eight-hour shift.

       Just as restroom breaks at the work location during the

workday "are necessary concomitants of an employee's performance

of his or her regularly assigned tasks," Kasper, 164 N.J. at 586




                                          12                                   A-0568-16T4
n.7, so was Bowser's break to retrieve those necessary products.

She   remained    on   the   MCCC   premises,   and   had   no   intention   of

leaving.   She obtained relief from a fellow officer so she could

briefly leave her post, as she would if she had headed straight

to the restroom.       And, she was "on the clock," as she would be

during a restroom break.            Consequently, her accident occurred

"during and as a result of the performance of [her] regular or

assigned duties."       N.J.S.A. 47:16A-7(1).         As the Board conceded

she satisfied the remaining Richardson factors, the Board erred

in denying Bowser an accidental disability pension.

      Reversed.




                                       13                             A-0568-16T4
