Former Little Silver Principal's Family Denied Accidental Death Benefits

Appellate Division affirms ruling by administrative law judge

The family of former Principal is not entitled to accidental death benefits following his tragic death in a motor vehicle accident in May 2008, the Appellate Division ruled Tuesday.

The decision affirms the ruling of an administrative law judge who determined that Merce was not performing his duties as principal when he was en route on Oceanport Avenue to the Little Silver school four years ago. The Merce family had initially been denied the benefit from the Teachers' Pension and Annuity Fund.

"We arrive at the same conclusion as the ALJ (administrative law judge) that, in these circumstances, the accident in which Merce tragically died occurred during his usual commute to work," the appellate ruling reads.

"Merce was not in the actual performance of duty at some definite time and place,' " as required by law, "and thus, petitioner is not entitled to accidental death benefits."

Merce had purchased coffee and doughnuts for a breakfast with the teaching staff before he arrived at Markham on May 6, 2008, which was Teacher Appreciation Day. He was struck that morning by Smentkowski when the Tinton Falls man crossed the double-yellow road lines and collided with Merce's vehicle.

The issue of whether Merce was "in the actual performance of duty" when transporting the staff breakfast formed the crux of the administrative law judge's decision.

Superintendent Carolyn M. Kossack "testified that Merce did not have specific authorization from her to buy breakfast for the teachers and was not required to do so.  She also explained that Merce's expenses for buying the breakfast were non-reimbursable, and that the Teacher Appreciation Day breakfast provided by Merce with his own funds was not an event sponsored by the board of education," the Appellate Division ruling reads.

However, Kossack "stated that Merce did have authority to use space in the school building for the breakfast, and that the breakfast, itself, did promote and enhance Merce's duties to foster interpersonal relationships and assert leadership with the staff." She added that "Merce would not have needed her explicit authorization to hold a breakfast event because he was expected to do things that would further his duties and responsibilities as a principal."

The administrative law judge subsequently found that "to be considered as an accident in the 'actual performance of duty,' as required by the statute, an accident which occurred during travel would only qualify if the travel was 'required or authorized' by the employer. If 'authorized' by the employer, the travel must be 'necessary to the performance of the job in order to be considered the actual performance of duty.' "

"[T]here was a duty to foster good interpersonal relationships and a duty to assert leadership. But the provision of baked goods to faculty members, (on this record), cannot be considered as necessary to the fulfillment of these duties.  Nor can it be established that the essential or fundamental or  necessary aspect of the trip during which Mr. Merce tragically died was anything other than a commute."

An appeal filed by Merce's widow, Bobbi Merce, argued that the ruling was based on "arbitrary, capricious and unreasonable factual conclusions" and that Donald Merce had "implicit authorization" to purchase breakfast for Markham teachers.

However, the Appellate Division cites applicable case law and statutes to affirm the administrative law judge's decision and uphold the denial of accidental death benefits.

flyerjon August 30, 2012 at 04:44 AM
why arent they suing the driver
Michael Megill August 30, 2012 at 05:15 PM
Very unfortunate decision by the Appellate Division. Is it not a "duty" to commute to work and "necessary to the performance of the job"? Was Mr. Merce allowed to perform his job at home? Though I am not an attorney, this does not make sense. I am very sorry for the Merce family, they deserved better.


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