GLORIA KING v. NEW JERSEY DEPARTMENT OF HEALTH AND SENIOR SERVICES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3327-05T23327-05T2

GLORIA KING,

Petitioner-Appellant,

v.

NEW JERSEY DEPARTMENT OF

HEALTH AND SENIOR SERVICES,

Respondent-Respondent.

_____________________________

 

Submitted November 1, 2006 - Decided March 15, 2007

Before Judges Collester and Sabatino.

On appeal from a Final Agency Decision of

the Department of Health and Senior

Services, HLT-12222-04.

Thurber Cappell, attorneys for appellant

(Cynthia A. Cappell, of counsel and on the

brief).

Stuart Rabner, Attorney General, attorney for respondent (Michael J. Haas, Assistant

Attorney General, of counsel; Kimberly E.

Jenkins, Deputy Attorney General, on the

brief).

PER CURIAM

Petitioner Gloria King, a certified nurse aide formerly employed by County Manor Rehabilitation Healthcare Center (County Manor), appeals from a final decision of the Commissioner of the New Jersey Department of Health and Senior Services (DHSS) and adoption of a factual finding by the administrative law judge (ALJ) that she committed acts of physical abuse upon D.E., an elderly resident of County Manor, suffering from Alzheimer's disease, revoking her nurse aide certification, as well as placing a finding of abuse next to her name in the New Jersey Nurse Aide Registry (N.J.A.C. 8:39-43.7(b)(1)).

Petitioner began her employment with County Manor in Tenafly in 1977 and worked there continuously until she was suspended following an incident on May 9, 2004. M.Z.R. testified she was visiting her mother to celebrate Mother's Day and was sitting with her in the dining room enjoying the dinner she brought from home. D.E. came up to their table, and petitioner led D.E. away. A few moments later M.Z.R. heard petitioner say, "You don't slap me." When she turned to look, she saw petitioner slap D.E. twice on the shoulder and D.E. pull away. M.Z.R. said the slaps were so hard that they were audible throughout the dining room. M.Z.R. was familiar with petitioner from past visits and had seen her acting inappropriately toward other patients. But she did not want to incur acrimony by the nursing staff and possible retaliation or negative treatment toward her mother, and did not report the incident right away. After thinking about the matter, on May 17, 2004, she told the supervising nurse and followed up by putting her complaint in writing.

When the report was first received, the director of nursing questioned petitioner. She said that while she was helping D.E. to sit at a table, D.E. struck her so hard on her arm that it caused visible bruising. She said she reacted and that it was "the first time." When she was shown M.Z.R.'s written complaint, petitioner amended her earlier statement by saying that she merely patted D.E. on the hand. She added that had she slapped D.E. hard on the shoulder, D.E. would have fallen and she "wouldn't be alive today." She claimed D.E. had acted aggressively in the past and that she had complained about D.E.'s behavior earlier. She said she did not report the incident because staff members are hit "all the time and nobody cares." She denied being verbally abusive or rough with any resident.

Ephraim Halpert, Administrator of County Manor, described petitioner as a very good worker for twenty-eight years. Her personnel file contained no disciplinary actions against her. Nonetheless, because of the comments by M.Z.R., petitioner was suspended pending a complete investigation. The following day the DHSS and the Office of Ombudsman were notified.

After an investigation of the incident was performed by nurse Edna Minetto, Halpert concluded that no action against petitioner was mandated. On September 1, 2004, he closed the matter with a notation that "no concerns have been substantiated." He said he had not received any other expressions of concern from family members regarding petitioner's care and had no qualms about her continuing to care for residents. However, he later testified that he felt "it was best for the residents as well as for petitioner" that she no longer work at County Manor. He added, "We made it clear to petitioner that this decision doesn't reflect any concrete evidence of her actions, rather what would be our obligation to the residents." He said that although petitioner was very upset, she understood, and she agreed to resign. Subsequently, the ombudsman's office advised the administrator that the case had been closed because "no concerns had been substantiated."

On September 13, 2004, petitioner received a letter from the DHSS advising her that she had been accused of abuse of a nursing home resident and her name would be permanently placed on the nurse aide registry and would receive a lifetime ban as a certified nursing assistant absent a determination to the contrary after a hearing.

Petitioner requested and received a hearing before the ALJ on August 23, 2005. M.Z.R. testified for the DHSS. Petitioner and Ephraim Halpert testified in opposition. The ALJ found that the State agency had met its burden of proof by a preponderance of credible evidence that on May 9, 2004, petitioner's actions toward D.E. constituted abuse. The determination was based on the finding that M.Z.R. was a more credible witness.

M.Z.R., the daughter of a resident of County Manor, testified in a clear, concise and believable manner that she was disturbed by [petitioner]'s treatment of certain residents of County Manor, who she believed were unable to speak for themselves. As such, she came forward to report what she had observed on May 9, 2004. She had no motivation to fabricate her testimony and none has been offered by petitioner. Her motivation in reporting the incident was simply to protect her mother and other residents against abuse and neglect by [petitioner] and her testimony was consistent with reports authored by her shortly after the incident. M.Z.R. testified clearly and emphatically she observed [petitioner] hit D.E. in the shoulder area. She did not hesitate in her description. She explained clearly how she made the observations, and she did not vacillate in any way. In fact she testified that the slaps, both from and to D.E., that she observed were audible. Her testimony was all the more believable because it was consistent with other action she had seen [petitioner] engage in that she also considered improper. . . .

* * *

Opposition to M.Z.R.'s testimony was offered by [petitioner], who has been a nurse's aide for twenty years. Described as a hard-working nurse, she never had any prior reported allegations of abuse or neglect. However, [petitioner] had a very powerful motive to fabricate her testimony concerning her actions on May 9, 2004, for, if a finding of abuse is sustained, she stands to have her name placed on the registry. Moreover, her testimony simply did not have the "ring of truth." She contended that D.E. slapped her and, in response, all she did was lightly "pat" D.E.'s hand as she would a naughty child. This version of events is simply not plausible. In fact, in her written statement [petitioner] actually said, "this is the first time." Although she would have me accept as her explanation for this statement that she was only admitting to patting D.E.'s hand, that explanation was not included in her statement, and there is no support for her contention that "patting" a resident's hand is also improper. Moreover, the scenario described by M.Z.R. is believable since it comports with common experience and seems likely and probable to have occurred in this particular circumstance. D.E. had gone over to M.Z.R.'s table, [petitioner] removed her, and D.E., unhappy about this, struck [petitioner] Is it not probable that [petitioner], angered by being struck by D.E., responded by striking back? Support for this conclusion is also gleaned from the fact that [petitioner] failed to report to the administration that D.E. slapped her, even though she admittedly knew she was supposed to do so. In sum, I accept M.Z.R.'s testimony and find that [petitioner] did not "pat" D.E., but instead improperly slapped her on the shoulder.

* * *

Although there were no marks on D.E. when she was later examined, there is no doubt that a slap causes physical harm. Although D.E. was not able to verbally communicate the effect that the incident had on her, M.Z.R. testified that D.E. pulled back after being slapped by [petitioner], thus evidencing she was harmed by the slap. Simply because D.E. could not communicate her pain, does not mean she did not suffer pain. Clearly, a slap that is loud enough to be heard across the room would certainly cause pain to a woman in D.E.'s position. One can only presume the pain or mental anguish that D.E. felt.

On January 11, 2006, the commissioner of DHSS adopted the findings of the ALJ and held that pursuant to 42 C.F.R. 483.156(c)(1)(iv), a finding of abuse was to be placed next to petitioner's name on the nurse aide registry. This appeal followed.

Petitioner argues the commissioner's adoption of the ALJ's finding of abuse was unsupported by substantial evidence in the record and constituted arbitrary, capricious or unreasonable action by the agency mandating reversal. Initially, we underscore that our scope of review of an administrative agency final decision is narrowly limited. Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). We will not upset a final agency decision unless it is affirmatively shown that it is arbitrary, capricious or unreasonable or lacks fair support in the record as a whole. In the Matter of Musick, 143 N.J. 206 (1996); Henry v. Rahway State Prison, 81 N.J. 571 (1980). There is a presumption of reasonableness attached to the actions of an administrative agency, Smith v. Ricci, 89 N.J. 514, 525, app. Dismissed, 459 U.S. 962, 103 S. Ct. 286, 74 L. Ed. 2d 272 (1982), and findings of fact that are reasonable are conclusive upon appeal. In re application of Howard Savings Bank, 143 N.J. Super. 1, 9 (App. Div. 1976).

Quite simply, the issue is one of credibility. The testimony of M.Z.R. and petitioner as to the incident on May 9, 2004, were in direct contradiction, and the commissioner upheld the ALJ's credibility finding in favor of M.Z.R. We give due regard to the opportunity of one who heard the witnesses to adjudge credibility. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Here, there was substantial basis in the record both for the credibility determination of the ALJ and to substantiate the charge of abuse against petitioner.

Lastly, we reject petitioner's claim that it was disproportionate for the agency to place her name on the registry, given her twenty-eight years of service without a prior reported infraction. The pertinent regulation mandates inclusion in the registry for individuals found to have committed acts of abuse or neglect. See N.J.A.C. 8:39-43(7)(b)(1), "The nurse aide abuse registry shall include the names of individuals who are found to have abused, neglected or misappropriated the property of any resident while working in a long-term care facility as an uncertified nurse aide." Additionally, the record reflects that the Commissioner was well aware of petitioner's past service.

Affirmed.

 

(continued)

(continued)

9

A-3327-05T2

March 15, 2007