SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2494-19

DARLENE HYMAN,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,

PUBLIC EMPLOYEES' 

RETIREMENT SYSTEM,

Respondent-Respondent.

_________________________

Submitted November 16, 2021 – Decided July 18, 2022

Before Judges Fisher and DeAlmeida.

On appeal from the Board of Trustees of the Public 

Employees' Retirement System, Department of the 

Treasury, PERS No. x-xx-xxx121.

Mandelbaum Salsburg, PC, attorneys for appellant 

(Andrew R. Bronsnick, of counsel and on the briefs).

Andrew J. Bruck, Acting Attorney General, attorney for 

respondent (Melissa H. Raksa, Assistant Attorney 

General, of counsel; Christopher Meyer, Deputy 

Attorney General, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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PER CURIAM

Petitioner Darlene Hyman appeals from the January 16, 2020 final agency 

decision of respondent Board of Trustees of the Public Employees' Retirement 

System (Board) denying her application for accidental disability retirement 

benefits. We reverse.

I.

Hyman was employed as a certified nurse's assistant (CNA) at the 

Roosevelt Care Center (RCC). A valid CNA license is a prerequisite for 

Hyman's position. RCC offers its staff continuing education training necessary 

to renew a CNA license during working hours in a classroom at the facility. 

Hyman obtained her continuing education training at the facility from an RCC 

employee before, during, and after her regular shifts. In addition, RCC offers 

to pay for the renewal of the CNA licenses of its employees.

RCC requires an employee, like Hyman, who elects to take advantage of 

the employer's offer, to come to the facility in person to pick up from the 

instructor a written verification of the continuing education credits she earned. 

In addition, the employee must come to the facility in person to pick up from a 

particular employee a check for the payment of the CNA license renewal fee. 
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The written verification of training and check are available to be picked up only

on Monday mornings.

Hyman worked the 11:00 p.m. to 7 a.m. shift on Mondays. She was, 

therefore, unable to retrieve the materials necessary to renew her CNA license 

during her regular working hours. On Monday, January 10, 2011, at 

approximately 7 a.m., sixteen hours before the start of her shift for that day, 

Hyman went to RCC to pick up the verification of her training and a check for 

the renewal of her license, which was set to expire five days later. She did not 

sign-in at the facility, as she customarily did when she was on duty and did not 

perform any of her regular work duties. Hyman was not paid for the time she 

spent at RCC that morning. Her only purpose in going to the employer's 

premises was to obtain the materials necessary for the renewal of her license.

After Hyman entered the building, she walked down a hallway toward the 

classroom where the instructor was issuing training verifications. She slipped

and fell on a wet surface in front of a coffee shop inside the facility. Hyman 

injured her right knee, back, and neck in the fall.

Hyman did not seek immediate medical care. Aware that her CNA license 

was close to expiring, she instead finished walking to the classroom, picked up 

her verification, and proceeded to the office of the employee who was issuing 
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checks for the license renewal fee. She also reported to the personnel office, 

where she completed an incident report detailing the fall and her injuries. 

Hyman then drove to a nearby town and renewed her CNA license. She returned 

to the facility to file proof of her license renewal before leaving again. In the 

following months, Hyman underwent two surgical procedures to repair internal 

injuries to her knee.

In January 2012, Hyman filed an application with the Board for accidental 

disability retirement benefits, alleging she was totally and permanently disabled 

as a result of her fall. The Board denied Hyman accidental disability retirement 

benefits and instead awarded her ordinary disability retirement benefits. While 

the Board found Hyman was totally and permanently disabled, it determined her 

disability did not occur during and as a result of her regular or assigned duties.1

Hyman appealed the Board's decision and the matter was transferred to 

the Office of Administrative Law for a hearing before an Administrative Law 

Judge (ALJ). After a hearing, the ALJ issued a written initial decision 

recommending the Board grant Hyman's application. The ALJ concluded that 

Hyman's injuries occurred during and as a result of the performance of her 

1

 The Board initially determined that Hyman's disability was not the direct result 

of the fall. It has since concluded that its initial decision on this point was 

incorrect.
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regular and assigned duties because she "was obtaining the course-credit 

verification, a necessary part of her licensing, on [RCC's] premises and at a time 

dictated by her employer . . . ." The ALJ was not persuaded by the argument 

that Hyman's presence at RCC was to complete a personal errand. He 

emphasized that the employer required her to come to the facility at a specific 

time when she was not on duty to retrieve the materials necessary for the renewal 

of her license. Alternatively, the ALJ relied on the holding in Kasper v. Bd. of 

Trs., Teachers' Pension & Annuity Fund, 164 N.J. 564 (2000), to conclude that 

Hyman's injury was eligible for accidental disability retirement benefits because 

it was "reasonably causally connected to her employment[,]" given that it 

occurred during her performance of "a required preparatory duty that was 

essential to her actual work . . . ." The employer filed exceptions to the ALJ's 

initial decision.

On January 16, 2020, the Board issued a final decision rejecting the ALJ's 

initial decision. The Board concluded that Hyman was not on duty when she 

fell or reasonably soon thereafter. In addition, the Board concluded that Hyman 

was not performing a required preparatory duty when she was injured, reasoning 

that "[j]ust because Hyman must renew her CNA license to be a CNA does not 

make obtaining the license part of her job duties."
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Finally, the Board found that pursuant to Kasper, a preparatory duty that 

occurs outside the normal workday must take place when an employee is at the 

employer's premises "for the purpose of performing his or her regular duties and 

not some other purpose." See Id. at 587. Because, in the Board's view, Hyman 

was not at RCC to perform her regular duties, she could not have been engaging 

in preparatory duties when she fell. Thus, the Board concluded, Hyman was not 

eligible for accidental disability retirement benefits.

This appeal follows. 

II.

Our review of decisions by administrative agencies is limited, with 

petitioners carrying a substantial burden of persuasion. In re Stallworth, 208 

N.J. 182, 194 (2011). An agency's determination must 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)).
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While we are not bound by an agency's interpretation of legal issues, 

which we review de novo, Russo, 206 N.J. at 27, "[w]e must give great deference 

to an agency's interpretation and implementation of its rules enforcing the 

statutes for which it is responsible." Piatt v. Bd. of Trs., Police & Firemen's Ret. 

Sys., 443 N.J. Super. 80, 99 (App. Div. 2015) (quoting Saint Peter's Univ. Hosp. 

v. Lacy, 185 N.J. 1, 13 (2005)). "Such deference has been specifically extended 

to state agencies that administer pension statutes." Id. at 99.

"[A]n accidental disability retirement entitles a member to receive a 

higher level of benefits than those provided under an ordinary disability 

retirement." Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 43 

(2008). 

[T]o obtain accidental disability benefits, a member 

must prove:

1. that 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);
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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.

[Richardson v. Bd. of Trus., Police & Firemen's Ret. 

Sys., 192 N.J. 189, 212-13 (2007).]

Notably, 

[a] traumatic event occurring during voluntary 

performance of regular or assigned duties at a place of 

employment before or after required hours of 

employment which is not in violation of any valid work 

rule of the employer or otherwise prohibited by the 

employer shall be deemed as occurring during the 

performance of regular or assigned duties.

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

The Board does not contest any of the statutory elements for the award of 

accidental disability retirement benefits other than whether Hyman's fall 

occurred during and as a result of her regular or assigned duties. The soundness 

of the Board's decision is determined by the holding in Kasper.

Kasper, a board of education employee, arrived in the parking lot of the 

school where she worked forty-five minutes prior to the start of her official shift, 

as she had every morning for nine months. 164 N.J. at 570. She did so because 
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a supervisor required distribution of materials to classrooms prior to the official 

start of classes. Ibid. As she climbed the front steps of the school, a man 

grabbed her purse and pulled her to the ground. During the attack, she suffered 

injuries that rendered her totally and permanently disabled. Id. at 571. She 

applied for accidental disability retirement benefits. Ibid.

The pension board that considered her application determined that 

although she was rendered disabled by a traumatic event, she was not entitled to 

accidental disability retirement benefits because the attack did not occur during 

and as a result of the performance of her regular or assigned duties. Ibid. That

board adopted an ALJ's determination that although Kasper had taken "a few 

steps" on her employer's property, she had not completed her commute to work 

when she was assaulted because she was not yet inside the school building. Id.

at 572. We affirmed the board's decision. Ibid.

The Supreme Court reversed. To determine whether Kasper's injuries 

occurred during and as a result of her regular or assigned duties the Court 

examined statutes applicable to teachers' pensions that are identical to those at 

issue here. Id. at 574. The Legislature amended the statutes governing several 

pension systems at the same time to clarify the circumstances in which 

accidental disability retirement benefits are available. Id. at 574-76.
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After discussing the legislative history preceding adoption of the statutes, 

the Court held that

assuming all other statutory prerequisites are met, a 

worker will qualify for an accidental disability pension 

if he or she is injured on premises owned or controlled 

by the employer, during or as a result of the actual

performance of his or her duties, or in an activity 

preparatory but essential to the actual duty. That is true 

whether the injury occurs during the workday or before 

or after hours.

[Id. at 585 (footnote omitted).]

The Court continued,

it is necessary to define more precisely the kinds of 

functions that will entitle an employee to an accidental 

disability pension. We begin with the regular workday 

that we define as the period during which the employee 

is required to be on the employer's premises to perform 

regularly assigned duties. Regularly assigned duties 

include activities such as a teacher teaching, a police 

officer policing, and a firefighter fighting fires. 

However, the concept is broader. 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 (footnotes omitted).]

The Court also rejected the notion that the employee was ineligible for 

accidental disability retirement benefits for an accident that occurs "during the 
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actual workday, in the period between a teacher's mandated presence on the 

premises and the opening bell . . . ." Id. at 586. To the contrary, "[t]he 

mandatory presence of the teacher on the school premises is part and parcel of 

his or her official duties." Ibid.

With respect to accidents that take place outside the actual workday, the 

Court held that "pre- and post-workday performance of an employee's regular or 

assigned duties essentially constitutes a parallel universe to the performance of 

those duties during the regular workday." Ibid.

Thus, a teacher who is required to come early or stay 

late for parent conferences or sports practices clearly 

qualifies for an accidental disability pension if she 

receives a disabling traumatic injury while performing 

those duties.

Likewise, an employee who arrives early or stays late 

to perform activities preliminary but integral to her 

duties qualifies for an accidental disability pension if 

the other statutory standards are met. Indeed, we view 

as too crabbed the conclusion reached in at least one of 

the [previously] cited administrative cases. To us, it is 

obvious that [a] teacher's activity of raising the 

windows in her oppressively hot classroom prior to the 

opening of school was both temporally and 

substantively relevant to her duties, even though the 

morning bell had yet not rung and she was performing 

that function before her presence at school was 

mandated.

[Id. at 586-87.]
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The Court explained:

In other words, an employee may qualify for an 

accidental disability pension as a result of a traumatic 

injury occurring prior to the start of or after the end of 

the formal workday, so long as the employee is at 

premises owned or controlled by the employer for the 

purpose of performing his or her regular duties and not 

for some other purpose. Obviously excluded are 

employees who arrive at work long before the required 

hour for a card game in the teachers' lounge, to avoid 

the traffic, read the paper, pay bills, or socialize, as well 

as employees who return to work after hours to retrieve 

a left-behind wallet or date book. To the contrary, the 

soccer coach who arrives early to bring the equipment 

out to the field, or who is left on the steps of the school 

at night after she has shepherded her last player to a 

waiting car, and is disabled by a traumatic injury is 

performing her duties, or acts essential to her duties, at 

the work location and thus qualifies for an accidental 

disability pension.

[Id. at 587.]

"The organizing principle is that one who is at the employer's premises solely to 

do his or her duty, and who, while doing what he or she is expected to do, is 

disabled by a traumatic accident, will qualify for" accidental disability 

retirement benefits. Ibid.

The Court concluded that Kasper, as she ascended the steps at the school, 

was on her employer's premises at the expected time and was "engaged in 

conduct that was, in every sense, preliminary but necessary to her early workday 
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. . . distribution" of materials. Id. at 588. She was, therefore, entitled to 

accidental disability retirement benefits. Ibid.

The circumstances giving rise to Hyman's fall do not fit squarely in the 

scenarios addressed in Kasper. It is undisputed that Hyman was not assigned to 

perform, and did not perform, any of her regular duties on the morning that she 

fell. Although she was scheduled to start her regular shift approximately sixteen 

hours after her fall, we cannot reasonably conclude that she arrived at RCC early 

for her regular duties. Hyman concedes that she was not compensated for the 

time she spent at the RCC the morning of the fall and that she left her employer's 

premises twice – once after she obtained the materials necessary to renew her 

license and again after she delivered her license renewal to RCC. We, therefore, 

find no fault in the Board's determination that Hyman's injuries did not occur 

during her regular or assigned duties or in the period immediately preceding the 

commencement of her duties.

We hold, however, that the Board erred in its legal conclusion that 

Hyman's injury did not occur during her performance of a required preparatory 

act essential to her actual regular duties. A valid CNA license is mandatory for 

Hyman to retain her employment. RCC provides continuing education training 

at the facility during the employees' regular work hours, and offers to pay the 
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license renewal fee. In order for Hyman to enjoy these benefits and ensure her 

continued employment, she was required by her employer to be present at RCC 

at a time other than her regular shift. Her sole purpose for going to RCC at the 

time designated by her employer was to fulfill a required preparatory duty

essential to her work: to obtain the documentation and funding she needed to 

renew her CNA license and remain employed. These tasks were preparatory to 

all of the work Hyman would perform at RCC subsequent to her license renewal.

We recognize that in Kasper the Court described required preparatory acts

as tasks "occurring prior to the start of or after the end of the formal workday, 

so long as the employee is at premises owned or controlled by the employer for 

the purpose of performing his or her regular duties and not for some other 

purpose." Kasper, 164 N.J. 587. As noted above, Hyman was not at RCC to 

perform her regular duties at the time she fell. In our view, however, the Board's 

wooden application of this passage to the unusual circumstances in which 

Hyman was injured undermines the intent of the Legislature when it enacted 

N.J.S.A. 43:15A-43(a). Hyman was at RCC at the direction of her employer 

solely for a purpose directly related to the performance of her regular duties as 

a CNA. Her presence was not in violation of any work rule. To the contrary, 

Hyman was at RCC to fulfill her employer's objective of having her CNA license 
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renewed. We conclude that her presence at RCC on the morning of her injury 

satisfies the statute as it was interpreted in Kasper, qualifying her for accidental 

disability retirement benefits.

We are not persuaded by the Board's argument that Hyman is not entitled 

to accidental disability retirement benefits because RCC's in-house training and 

license fee payment offer were optional. It is true that Hyman was free to find 

and pay for continuing education training at an off-site location and to pay the 

license renewal fee out of her own pocket. The record does not reveal what 

might motivate an employee to make those choices. RCC, however, presumably 

offered to provide training and to pay for the license renewals for its benefit, as 

well as for the benefit of its employees. RCC's involvement with the license 

renewal process helps to ensure that its employees' eligibility to perform their 

regular duties is not interrupted by periods of lapsed licensure. It is 

unreasonable to consider Hyman's presence at RCC on the morning she fell as 

the performance of a personal errand from which she alone benefitted. Her 

purpose was directly related to her regular duties as a CNA.

The January 16, 2020 decision is reversed. The matter is remanded to the 

Board for the award of accidental disability retirement benefits to Hyman. We 

do not retain jurisdiction.