NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4259-16T2
CARMEN AMADOR,
Petitioner-Appellant,
v.
NEW JERSEY DEPARTMENT OF HEALTH,
Respondent-Respondent. _______________________________
Submitted May 16, 2018 – Decided June 7, 2018
Before Judges Koblitz, Manahan and Suter.
On appeal from the New Jersey Department of Health, Docket No. 15-198.
Michael K. McFadden, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Arundhati Mohankumar, Deputy Attorney General, on the brief).
PER CURIAM
Petitioner Carmen Amador appeals the final agency decision
of the New Jersey Department of Health (Department) that she abused
and neglected a nursing home resident under her care. As a result of the decision, the Department revoked Amador's certification and
placed the abuse and neglect finding next to her name on the New
Jersey Nurse Aide Registry (Registry). We affirm.
Amador was employed as a certified nurse's aide (CNA) at
Victoria Manor Residential Facility (Victoria Manor). On June 5,
2017, Amador was caring for a resident, R.F.,1 who was 104 years
old at the time of the incident. R.F. was described as being
"very strong-minded and strong-willed," who suffered from elements
of dementia and who required the use of a wheelchair.2
On June 5, 2017, two employees at Victoria Manor, Rebecca
Chase, a Registered Nurse and Assistant Director and Clinical
Reimbursement Coordinator, and Dawn Larkin, a Registered Nurse,
observed R.F. "trying to pull herself away from the wall." As
Chase and Larkin approached R.F., they noticed she was "frustrated"
and observed that her wheel chair was tied to a handrail with a
trash bag.
Based upon what Chase and Larkin observed, all CNAs were
called to the nursing station to address the incident. Amador
admitted to using a trash bag to tie R.F.'s wheelchair to the
railing as a "joke." Amador further admitted that she left R.F.
1 We use initials for the purpose of confidentiality. 2 R.F. could stand and walk for short distances with assistance.
2 A-4259-16T2 restrained to the handrail in order to respond to another nurse's
request for assistance.
Subsequent to an internal investigation, a Facility Reporting
Incident Data Analysis Yield was completed by the Director of
Nursing, Donna Mayer, and the Administrator, Sabrina Cebella. The
investigation resulted in a finding of abuse and neglect by
Amador based upon the abuse policy of the State of New Jersey. On
September 8, 2015, Amador was notified of the allegations against
her and the Department scheduled an informal conference.
The Department issued a written notice on October 30, 2015,
which informed Amador of the results of the Department's
investigation and of her right to a fair hearing. Amador requested
a hearing on November 11, 2011. The Department forwarded the
matter to the Office of Administrative Law (OAL) as a contested
case.
A hearing took place on November 29, 2016 before
Administrative Law Judge Dean Buono. The Department presented
three witnesses; Mayer, Chase and Larkin, who each testified in
accordance with their written statements. In addition to her
testimony, Amador presented four witnesses; Dorothy Sheehan, Kiana
Evans, Dustin Brown and Jessica Carrasquillo.
The judge issued a written initial decision on March 16,
2017, holding that the Department proved by a preponderance of
3 A-4259-16T2 credible evidence that Amador's actions rose to the level of abuse
and neglect. In terms of credibility, the judge found:
For testimony to be believed, it must not only come from the mouth of a credible witness, but it also has to be credible in itself. It must elicit evidence that is from such common experience and observation that it can be approved as proper under the circumstances. See Spagnuolo v. Bonnet, 16 N.J. 546 (1954); Gallo v. Gallo, 66 N.J. Super. 1 (App. Div. 1961).
. . . .
The testimony of the [Department's] witnesses was especially credible and persuasive. Their testimony was clear and concise. It was apparent from the tenor of the testimony that they had no bias toward or against petitioner. They simply testified as to what they saw. It was also obvious that their concerns rested solely on the residents in the facility.
Along those same lines, the witnesses for [Amador] also testified credibly. However, [Amador's] own testimony assisted the [Department] in proving the facts of the case by a preponderance of the evidence. She admitted to using the plastic trash bag to affix the wheelchair to the railing. It is disturbing that [Amador] simply did it as a "joke."
The judge further found that R.F. appeared to be frustrated
and agitated from having her movement restrained. The judge
determined that Amador's actions amounted to "the willful
infliction of injury . . . with resulting physical harm, pain or
4 A-4259-16T2 mental anguish," and that an abuse and neglect finding should be
placed next to her name in the Registry.
The initial decision was filed with the Commissioner of the
Department for consideration. On April 26, 2017, after an
independent evaluation of the record, the Commissioner adopted the
judge's findings of fact and conclusions of law and ordered that
Amador's nurse aide certificate be revoked and that a finding of
abuse and neglect be placed next to Amador's name on the Registry
pursuant to 42 C.F.R. §483.156(c)(1)(iv). On May 2, 2017, Amador
received notice that her certification was revoked. This appeal
followed.
On appeal, Amador raises the following points:
POINT I
THE TRIAL COURT ERRED [] AS THE DECISION IS UNREASONABLE AND LACKS FAIR SUPPORT IN THE RECORD AS A WHOLE AND THUS BEING AGAINST THE WEIGHT OF THE EVIDENCE.
POINT II
THE COURT SHOULD NOT HAVE CONSIDERED A CLAIM AGAINST THE PLAINTIFF FOR NEGLECT.
Our review of administrative agency decisions is limited. In
re Taylor, 158 N.J. 644, 656 (1999). A final agency decision will
not be upset unless it is shown to be arbitrary, capricious or
unreasonable or lacks fair support in the record as a whole. In
re of Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State
5 A-4259-16T2 Prison, 81 N.J. 571, 579-80, (1980). Further, appellate courts
will afford substantial deference to the administrative agency's
expertise in its field. Riverside Gen. Hosp. v. N.J. Hosp. Rate
Setting Comm'n, 98 N.J. 458, 469 (1985). Therefore, an agency's
interpretation of legislation is entitled to great weight. Peper
v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 69-70 (1978). We are
thus asked to decide "'whether the findings made could reasonably
have been reached on sufficient credible evidence present in the
record' considering 'the proofs as a whole.'" In re Taylor, 158
N.J. at 656; (quoting Close v. Kordulak Bros., 44 N.J. 589, 599
(1965)).
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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-4259-16T2
CARMEN AMADOR,
Petitioner-Appellant,
v.
NEW JERSEY DEPARTMENT OF HEALTH,
Respondent-Respondent. _______________________________
Submitted May 16, 2018 – Decided June 7, 2018
Before Judges Koblitz, Manahan and Suter.
On appeal from the New Jersey Department of Health, Docket No. 15-198.
Michael K. McFadden, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Arundhati Mohankumar, Deputy Attorney General, on the brief).
PER CURIAM
Petitioner Carmen Amador appeals the final agency decision
of the New Jersey Department of Health (Department) that she abused
and neglected a nursing home resident under her care. As a result of the decision, the Department revoked Amador's certification and
placed the abuse and neglect finding next to her name on the New
Jersey Nurse Aide Registry (Registry). We affirm.
Amador was employed as a certified nurse's aide (CNA) at
Victoria Manor Residential Facility (Victoria Manor). On June 5,
2017, Amador was caring for a resident, R.F.,1 who was 104 years
old at the time of the incident. R.F. was described as being
"very strong-minded and strong-willed," who suffered from elements
of dementia and who required the use of a wheelchair.2
On June 5, 2017, two employees at Victoria Manor, Rebecca
Chase, a Registered Nurse and Assistant Director and Clinical
Reimbursement Coordinator, and Dawn Larkin, a Registered Nurse,
observed R.F. "trying to pull herself away from the wall." As
Chase and Larkin approached R.F., they noticed she was "frustrated"
and observed that her wheel chair was tied to a handrail with a
trash bag.
Based upon what Chase and Larkin observed, all CNAs were
called to the nursing station to address the incident. Amador
admitted to using a trash bag to tie R.F.'s wheelchair to the
railing as a "joke." Amador further admitted that she left R.F.
1 We use initials for the purpose of confidentiality. 2 R.F. could stand and walk for short distances with assistance.
2 A-4259-16T2 restrained to the handrail in order to respond to another nurse's
request for assistance.
Subsequent to an internal investigation, a Facility Reporting
Incident Data Analysis Yield was completed by the Director of
Nursing, Donna Mayer, and the Administrator, Sabrina Cebella. The
investigation resulted in a finding of abuse and neglect by
Amador based upon the abuse policy of the State of New Jersey. On
September 8, 2015, Amador was notified of the allegations against
her and the Department scheduled an informal conference.
The Department issued a written notice on October 30, 2015,
which informed Amador of the results of the Department's
investigation and of her right to a fair hearing. Amador requested
a hearing on November 11, 2011. The Department forwarded the
matter to the Office of Administrative Law (OAL) as a contested
case.
A hearing took place on November 29, 2016 before
Administrative Law Judge Dean Buono. The Department presented
three witnesses; Mayer, Chase and Larkin, who each testified in
accordance with their written statements. In addition to her
testimony, Amador presented four witnesses; Dorothy Sheehan, Kiana
Evans, Dustin Brown and Jessica Carrasquillo.
The judge issued a written initial decision on March 16,
2017, holding that the Department proved by a preponderance of
3 A-4259-16T2 credible evidence that Amador's actions rose to the level of abuse
and neglect. In terms of credibility, the judge found:
For testimony to be believed, it must not only come from the mouth of a credible witness, but it also has to be credible in itself. It must elicit evidence that is from such common experience and observation that it can be approved as proper under the circumstances. See Spagnuolo v. Bonnet, 16 N.J. 546 (1954); Gallo v. Gallo, 66 N.J. Super. 1 (App. Div. 1961).
. . . .
The testimony of the [Department's] witnesses was especially credible and persuasive. Their testimony was clear and concise. It was apparent from the tenor of the testimony that they had no bias toward or against petitioner. They simply testified as to what they saw. It was also obvious that their concerns rested solely on the residents in the facility.
Along those same lines, the witnesses for [Amador] also testified credibly. However, [Amador's] own testimony assisted the [Department] in proving the facts of the case by a preponderance of the evidence. She admitted to using the plastic trash bag to affix the wheelchair to the railing. It is disturbing that [Amador] simply did it as a "joke."
The judge further found that R.F. appeared to be frustrated
and agitated from having her movement restrained. The judge
determined that Amador's actions amounted to "the willful
infliction of injury . . . with resulting physical harm, pain or
4 A-4259-16T2 mental anguish," and that an abuse and neglect finding should be
placed next to her name in the Registry.
The initial decision was filed with the Commissioner of the
Department for consideration. On April 26, 2017, after an
independent evaluation of the record, the Commissioner adopted the
judge's findings of fact and conclusions of law and ordered that
Amador's nurse aide certificate be revoked and that a finding of
abuse and neglect be placed next to Amador's name on the Registry
pursuant to 42 C.F.R. §483.156(c)(1)(iv). On May 2, 2017, Amador
received notice that her certification was revoked. This appeal
followed.
On appeal, Amador raises the following points:
POINT I
THE TRIAL COURT ERRED [] AS THE DECISION IS UNREASONABLE AND LACKS FAIR SUPPORT IN THE RECORD AS A WHOLE AND THUS BEING AGAINST THE WEIGHT OF THE EVIDENCE.
POINT II
THE COURT SHOULD NOT HAVE CONSIDERED A CLAIM AGAINST THE PLAINTIFF FOR NEGLECT.
Our review of administrative agency decisions is limited. In
re Taylor, 158 N.J. 644, 656 (1999). A final agency decision will
not be upset unless it is shown to be arbitrary, capricious or
unreasonable or lacks fair support in the record as a whole. In
re of Musick, 143 N.J. 206, 216 (1996); Henry v. Rahway State
5 A-4259-16T2 Prison, 81 N.J. 571, 579-80, (1980). Further, appellate courts
will afford substantial deference to the administrative agency's
expertise in its field. Riverside Gen. Hosp. v. N.J. Hosp. Rate
Setting Comm'n, 98 N.J. 458, 469 (1985). Therefore, an agency's
interpretation of legislation is entitled to great weight. Peper
v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 69-70 (1978). We are
thus asked to decide "'whether the findings made could reasonably
have been reached on sufficient credible evidence present in the
record' considering 'the proofs as a whole.'" In re Taylor, 158
N.J. at 656; (quoting Close v. Kordulak Bros., 44 N.J. 589, 599
(1965)). In doing so, we give "due regard" to the ability of the
factfinder who heard the witnesses to judge credibility, Close,
44 N.J. at 599, and defer to these credibility findings "that are
often influenced by matters such as observations of the character
and demeanor of witnesses and common human experience that are not
transmitted by the record." State v. Locurto, 157 N.J. 463, 474
(1999). More specifically, "the choice of accepting or rejecting
the testimony of witnesses rests with the administrative agency,
and where such choice is reasonably made, it is conclusive on
appeal." Renan Realty Corp. v. State, Dep't of Cmty. Affairs,
Bureau of Hous. Inspection, 182 N.J. Super. 415, 421 (App. Div.
1981).
6 A-4259-16T2 Measured by this standard, we conclude that the final agency
decision was premised upon sufficient credible evidence
establishing Amador's abusive and neglectful treatment. The judge
credited the accounts of Chase and Larkin, that R.F. was visibly
"frustrated" when her wheelchair was found tied to the railing,
and Amador's own statement, in which she admitted to intentionally
tying the wheelchair to the railing and leaving R.F. unattended,
which witnesses from both sides credibly testified is never
permissible. In contrast, the judge discredited Amador's general
denial and claim that her actions were meant to be a "joke." We
discern no reason to disturb these findings, which provided ample
support for the Department's abuse and neglect determination.
It is the public policy of the State "to secure for elderly
patients, residents and clients of health care facilities serving
their specialized needs and problems, the same civil and human
rights guaranteed to all citizens . . . ." N.J.S.A. 52:27G-1.
Thus, a resident of a long-term care facility "has the right to
be free from verbal, sexual, physical, and mental abuse, corporal
punishment, and involuntary seclusion." 81 FR 68688, 68855 (2016);
see also N.J.A.C. 8:39-4.1(a)(5). Such individuals are entitled
"[t]o be treated with courtesy, consideration, and respect for the
resident's dignity and individuality." N.J.A.C. 8:39-4.1(a)(12).
To this end, "abuse" is defined as "the willful infliction of
7 A-4259-16T2 injury, unreasonable confinement, intimidation, or punishment with
resulting physical harm, pain, or mental anguish." 42 C.F.R. §
488.301 (2003); see also N.J.S.A. 52:27G-2(a). "Neglect" is
defined as the "failure to provide goods and services necessary
to avoid physical harm, mental anguish, or mental illness." 42
C.F.R. § 488.301 (2003).
We are satisfied that Amador's actions resulted in R.F.'s
mental anguish, thereby constituting "abuse" within the regulatory
and statutory meaning. We are further satisfied that Amador's
conduct in leaving R.F. restrained in the manner that she did
constitutes "neglect" within the regulatory and statutory meaning.
Affirmed.
8 A-4259-16T2