IRMA PINTO VS. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM(BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3263-15T4

IRMA PINTO,

Petitioner-Appellant,

v.

BOARD OF TRUSTEES,
PUBLIC EMPLOYEES'
RETIREMENT SYSTEM,

Respondent-Respondent.
_____________________________________________

Argued June 6, 2017 – Decided August 3, 2017

Before Judges Suter and Grall.

On appeal from the Board of Trustees, Public
Employees' Retirement System, PERS No.
1220708.

Richard A. Friedman argued the case for
appellant (Zazzali, Fagella, Nowak,
Kleinbaum & Friedman, attorneys; Mr.
Friedman, of counsel and on the brief;
Marissa A. McAleer and Kaitlyn E. Dunphy, on
the briefs).

Jeff S. Ignatowitz, Deputy Attorney General,
argued the cause for respondent (Christopher
S. Porrino, Attorney General, attorney;
Melissa H. Raksa, Assistant Attorney
General, of counsel; Mr. Ignatowitz, on the
brief).
PER CURIAM

Petitioner Irma Pinto appeals from a final agency decision

of the Board of Trustees of the Public Employees' Retirement

System (Board). Affirming and adopting the findings and

recommendations of the Administrative Law Judge (ALJ), the Board

denied Pinto's application for accidental disability and granted

Pinto ordinary disability retirement. We affirm.

Our role in reviewing a decision of an administrative

agency is limited. In re Carter, 191 N.J. 474, 482 (2007). We

accord a strong presumption of reasonableness to an agency's

exercise of its statutorily delegated responsibility, City of

Newark v. Nat. Res. Council, Dep't of Envtl. Prot., 82 N.J. 530,

539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d

245 (1980), give great deference to the agency's interpretation

of its regulations, U.S. Bank, N.A. v. Hough, 210 N.J. 187, 191

(2012), and defer to the agency's findings of fact, Lavezzi v.

State, 219 N.J. 163, 172 (2014). An agency's determination is

disturbed only if it is arbitrary, capricious, or unreasonable,

lacked fair support in the evidence or violated legislative

policies. In re Musick, 143 N.J. 206, 216 (1996).

The Stratford Board of Education hired Pinto to do

custodial work in 2004, and she sustained her disabling injury

at work on April 26, 2011. The students were on spring break

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that day and, for that reason, the custodians worked the day

shift (7:00 a.m. to 3:30 p.m.) to do deep-cleaning, which

included scrubbing and waxing the hallway and elevator floors.

That project involved multiple applications of wax separated by

thirty minutes to allow the previous layer to dry; after wax is

applied, the floor cannot be walked on until dry.

Kenneth Pressley, the district's assistant supervisor of

operations and overseer of day and night shift custodians, was

working in the same school as Pinto the day she fell. Pressley

assigned the tasks at the beginning of the shift. Pinto would

do housekeeping work in the classrooms on the second floor.1

Pressley and the only other custodian present, Carl DiOrio,

would scrub and wax the main floor. Pressley told Pinto to use

the stairway in the back of the building if she had to come

down, which would allow her to leave the building without

passing through the hallway being waxed.

According to Pressley's testimony, he directed Pinto not to

use the elevator twice more, at least. While he was scrubbing

and waxing with DiOrio, Pinto "kept coming down . . . . she kept

coming down and then we — me and Mr. DiOrio both were letting

1
Apparent discrepancy in testimony identifying specific floors
of the building is eliminated by DiOrio's testimony, which makes
it clear that he and Pressley were counting the floors
differently when they used the terms first and second floor.

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her know that she [couldn't] come this way because we was [sic]

waxing, and then she was saying, 'well, I know, I be [sic]

careful,' this and this, you know, it was like — it was like

that, yeah."

Pressley spoke to Pinto again as she was getting off the

elevator. He explained, "'Hey, Irma, you know, we're waxing

these floors, you can't come this way.' And she said, 'Oh, no

problem.'" He did not recall whether he put signs out, but he

knew everyone in the school that day knew what was going on, and

he noted the buckets have "'caution wet floor' [labels] on

them."

DiOrio spoke to Pinto three or four times that day. As the

lunch break was ending and Pinto was going back upstairs, he

told her they were going to start the waxing. As far as DiOrio

knew, Pinto used the elevator when she went up in the morning

and once more, at the end of the day. At about 3:15 p.m., when

DiOrio was applying the last coat of wax, he heard the elevator

ding. When the doors opened, Pinto was "laying on the floor" of

the elevator. Because the hallway floor was just waxed, he did

not cross it because he would have fallen. He told Pinto to

take the elevator up so he could meet her there and help.

DiOrio had waxed the elevator five to ten minutes earlier.

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 During her testimony, Pinto denied being told not to take

the elevator or that it was being waxed. She acknowledged using

the elevator at least three times that day and knowing that in

the past sometimes when the floors were waxed, everything was

waxed. She had not noticed any sign of cleaning in the elevator

until she was lying in the wet wax.

The ALJ found Pinto "was warned repeatedly on April 26,

2011, to avoid using the elevator." The ALJ gave "greater

weight to the testimony of Pressley and DiOrio," because they

had no interest in the outcome and Pinto's interest in the

outcome was "very real." The ALJ concluded the fall that left

Pinto disabled "was caused by her willful negligence," which was

established by Pinto's "affirmative decision to use the

elevator," despite the warnings of her co-workers and the

available safe route, amounted to conduct evidencing "'reckless

indifference to safety' within the contemplation of N.J.A.C.

17:2-6.5(a)2." N.J.A.C. 17:2-6.5(a) defines the term "willful

negligence," and reckless indifference to safety is one of the

meanings assigned. "[W]illful negligence" is a statutory bar to

award of an accidental disability pension. N.J.S.A. 43:16A-7.

Pinto contends the Board erred in accepting the ALJ's

findings of fact because they lack evidential support. Given

the deference this court owes to the Board's factual

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determinations and application of its regulation, we disagree.

The ALJ's use of the word "repeatedly" has adequate support.

Moreover, while not wholly consistent, the testimony given by

Pressley and DiOrio established Pinto was told not to take the

elevator and to avoid walking on the floors being waxed, which

include the floor at the elevator entrance. Moreover, the

inference that Pinto was aware of the safety risk involved was

amply supported by the record. Pinto had been on the job for

several years, had been there when waxing was done, and was

aware the elevator's floor likely would be waxed with the floor

leading to it.

In arguing the risk of fall was insufficiently high and the

danger posed insufficiently serious to establish reckless

indifference to safety, Pinto relies on Schick v. Ferolito, 167

N.J. 7 (2001). That case involves risk to other players on a

golf course. Here, the question is whether a public employee

engaged in conduct in a manner demonstrating "reckless

indifference to [his or her] safety."

In considering whether a disregard of risk brings ordinary

negligence to the level of "reckless indifference," courts

assess the question in light the situation. In G.S. v.

Department of Human Services, 157 N.J. 161, 179 (1999), the

Court equated "the concept of willful and wanton misconduct"

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with action taken by a person "with reckless disregard for the

safety of others." (Citations omitted). "The term is not

immutably defined but takes its meaning from the context and

purpose of its use." Fielder v. Stonack, 141 N.J. 101, 124

(1995). The analysis "turns on an evaluation of the seriousness

of the actor's misconduct." G.S., supra, 157 N.J. at 178

(citing Fielder, supra, 141 N.J. at 124).

In this accidental disability retirement case, the risk of

danger to safety was Pinto's falling in the elevator or on the

floor below, where DiOrio was waxing outside the elevator. The

school's floors were being waxed on the day Pinto fell because

no one was using the school. The school's practice suggests the

employer's interest in limiting the risk of falls as well as its

interest in avoiding disruption of the waxing or educational

endeavors. Moreover, the likelihood of falls inherent in wet

floors, even floors not wet with wax, is commonly understood as

significant and consequential. That common understanding is

evidenced by the routine and customary use of "caution wet

floor" with an image depicting a slip and fall in progress in

public places. Finally, Pinto disregarded the risk despite

having the option to avoid the freshly waxed floors by taking

the stairwell she was directed to use.

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 Having considered the evidence in light of our deferential

standards of review, we affirm. The agency's denial of an

accidental disability retirement is not arbitrary, capricious,

or unreasonable.

Affirmed.

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