                                NOT FOR PUBLICATION WITHOUT THE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-1087-17T1

JOSEPH CONTI,

          Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

     Respondent-Respondent.
_______________________________

                    Argued March 5, 2019 – Decided March 29, 2019

                    Before Judges Hoffman and Geiger.

                    On appeal from the Board of Trustees of the Public
                    Employees' Retirement System, Department of the
                    Treasury, PERS No. 2-1334915.

                    Carleen M. Steward argued the cause for appellant
                    (Fruhschein & Steward, LLC, attorneys; Carleen M.
                    Steward, of counsel and on the briefs).

                    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; Robert E. Kelly, on the
              brief).

PER CURIAM

      Petitioner Joseph Conti ruptured his Achilles tendon in a fall from a dump

truck while working for the Department of Transportation (DOT). Since Conti's

injury left him unable to return to work, he applied for accidental disability

retirement benefits (ADRB). The Board of Trustees of the Public Employees'

Retirement System (the Board) denied his claim for benefits, determining his

fall "was the result of [his] willful negligence" and his injury "was not

unexpected under the circumstances."        In doing so, the Board rejected the

decision of an Administrative Law Judge (ALJ) granting Conti ADRB. Because

the undisputed facts demonstrate that Conti is legally entitled to such benefits,

we reverse.

                                       I.

      On December 4, 2008, Conti attempted to clean the rear of a dump truck

in the course of his employment as a DOT maintenance worker. Because the

built-in, retractable metal ladder that would allow access to the truck bed was

"rusted and broken," Conti climbed into the truck using the truck's rear wheel,

without using the broken ladder.



                                                                         A-1087-17T1
                                       2
      To exit the truck bed, Conti placed his foot on the truck's tire. However,

his wet foot slipped and Conti fell, twisting his left ankle and tearing his Achilles

tendon.

      Conti began his employment with the DOT in April 2008; however, he did

not receive a copy of the DOT the safety manual until three months later. The

manual required employees to "wear and use safety items as directed," and

"[w]hen a safety item issued is not in good condition, the employee shall report

this to their immediate supervisor as soon as possible."

      While Conti did not report the broken ladder to a superior, other

employees previously reported the condition of the ladder to the supervisor.

Notwithstanding the complaints of these other employees, no action was taken

to repair or replace the ladder before Conti's accident.

      The record reflects that because the ladder was broken and rusted,

employees did not use it. Instead, to access the bed of the truck, Conti testified

that "guys would use the back wheel to climb up and to get into the bed of the

truck." Most of them would use the rear tire, where

             there was a piece of wood . . . they would put their
             hands on the piece of wood and then they would put
             their foot on the lug . . . of the tire and then there was a
             step that went around the whole bed of the truck, they
             would just put their foot on the step and then just
             straddle and go over.

                                                                             A-1087-17T1
                                          3
      Other employees would climb "on top of a small trailer" and stepped into

the bed from the trailer. Prior to his incident, Conti always climbed into the

truck the same way, using the tire. The entire time he worked with the dump

truck, from April through December 2008, the ladder remained in the same

rusted and broken condition. In fact, when Conti first began working with the

DOT, the supervisor had a coworker "show [him] the ropes," which included

climbing into the truck without using the ladder.

      Conti applied for ADRB in September 2011. The Board determined Conti

was totally and permanently disabled due to an event that occurred "during and

as a result of [his] regular or assigned duties."      Nonetheless, the Board

determined the fall "[was] not undesigned and unexpected" and resulted from

Conti's own "willful negligence." The Board therefore denied his claim.

      Conti appealed, and the matter was transferred to the OAL as a contested

case, "limited to the issue of whether Petitioner was willfully negligent." In

June 2017, the ALJ ruled in favor of Conti, concluding his conduct did not "rise

to reckless disregard of his own safety." The State submitted exceptions to the

ALJ's decision.




                                                                        A-1087-17T1
                                       4
      In August 2017, the Board adopted the ALJ's factual findings but rejected

her legal conclusions, thereby denying Conti's ADRB claim.            This appeal

followed.

                                        II.

      We recognize that "'judicial review of an administrative agency action is

limited' because respect is due to the 'expertise and superior knowledge' of an

agency in its specialized field." Francois v. Bd. of Trs., 415 N.J. Super. 335,

347 (App. Div. 2010) (quoting Hemsey v. Bd. of Trs., Police & Firemen's Ret.

Sys., 198 N.J. 215, 223 (2009)). "An administrative agency's final quasi-judicial

decision will be sustained 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. Sys., 206 N.J. 14, 27 (2011) (quoting In re

Herrmann, 192 N.J. 19, 27-28 (2007)). "[I]f substantial evidence supports the

agency's decision, 'a court may not substitute its own judgment for the agency's

even though the court might have reached a different result.'" In re Carter, 191

N.J. 474, 483 (2007) (quoting Greenwood v. State Police Training Ctr., 127 N.J.

500, 513 (1992)).

      Here, the Board adopted the ALJ's factual findings, but rejected her legal

reasoning and conclusions. We review de novo purely legal issues and the


                                                                           A-1087-17T1
                                        5
agency's interpretation of a statute. Russo, 206 N.J. at 27. Nevertheless, we

"generally defer to the interpretations of a state agency of the statutes and

implementing regulations it administers, unless the interpretation is 'plainly

unreasonable.'" Francois, 415 N.J. Super. at 347 (quoting In re Election Law

Enforcement Comm'n Advisory Opinion No. 01-2008, 201 N.J. 254, 260

(2010)).

      To receive ADRB, an applicant must prove:

            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 usual or any other
            duty.




                                                                        A-1087-17T1
                                         6
               [Richardson v. Bd. of Trs., Police & Firemen's Ret.
               Sys., 192 N.J. 189, 212-13 (2007); see also N.J.S.A.
               43:16A-7(1).]

         "Willful negligence" is a

               1. deliberate act or deliberate failure to act that reflects
               an intentional or purposeful or deviation from the
               standard of care exercised by a reasonable person in
               similar circumstances; or 2. such conduct as evidences
               reckless indifference to safety; or 3. intoxication,
               operating as the proximate cause of the injury.

               [N.J.A.C. 17:2-6.5.]

         Although the safety manual required Conti to report the ladder to a

supervisor, he did not, despite the ladder's rusted and broken condition during

the entirety of his employment. The Board found this constituted a "deliberate

failure to act," demonstrating Conti's willful negligence. The Board also found

Conti committed a "deliberate unsafe act" in using the tire to climb out of the

truck.

         In making its decision, the Board relied on an unpublished decision 1 of

this court, in a case involving markedly different factual circumstances. While

the Board recognized that "employers and the pension boards have compelling


1
   "No unpublished opinion shall constitute precedent or be binding upon any
court." R. 1:36-3. Indeed, unreported decisions "serve no precedential value,
and cannot reliably be considered part of our common law." Trinity Cemetery
v. Wall Tp., 170 N.J. 39, 48 (2001) (Verniero, J., concurring).
                                                                              A-1087-17T1
                                            7
policy reasons for ensuring a safe working environment," its decision punishes

Conti for the DOT's failure to provide the necessary safety equipment. The

Board's decision places much emphasis on Conti's failure to report the broken

ladder to a supervisor; however, the record shows other employees reported the

condition of the ladder, without results. Instead of placing the duty to ensure

safety upon the employer – the party best able to provide safety equipment and

accept the cost of noncompliance – the Board placed the responsibility on Conti,

even though previous efforts of other employees proved futile.

       The employer's failure to repair or replace the ladder placed Conti in the

precarious position of having to perform his job duties without having a safe

way of doing so. Conti could either use the rusted and broken ladder, climb into

the truck after scaling a small trailer, or enter and exit the truck using the tire ,

just as his coworkers did and as he had been trained.

       Thus, while Conti's use of the tire and failure to report the ladder may

have been a "deliberate act," it does not "reflect[] an intentional or purposeful

deviation from the standard of care exercised by a reasonable person in similar

circumstances" as the regulation requires to deny benefits. See N.J.A.C. 17:2-

6.5.




                                                                             A-1087-17T1
                                         8
      For the same reasons, we reject the Board's finding that the injury was not

undesigned or unexpected. The Board did not cite any evidence Conti had

"designed" his fall. Further, the Board's finding that Conti's method to exit the

truck "is so obviously unsafe that losing one's footing and falling is to be

expected," ignores the fact that Conti had no safer alternative to exit the truck.

The evidence shows the ladder was rusty and unsafe. The State neglected to

repair or replace it. The only other means to exit the truck was to climb over to

a trailer and climb down.

      We conclude the Board's final decision "lacks fair support in the record,"

warranting its reversal. Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n,

234 N.J. 150, 157 (2018) (quoting Russo, 206 N.J. at 27). We therefore remand

the matter to the Board for entry of an ADRB award to Conti.

      Reversed and remanded. We do not retain jurisdiction.




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                                        9
