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November 5, 2014


Submitted July 1, 2014 Decided

Before Judges Espinosa and Kennedy.

On appeal from the Board of Review, Department of Labor, Docket No. 412,262.

Karpf, Karpf & Cerutti, P.C., attorneys for appellant (Christine E. Burke, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief).

Respondent Deborah Heart & Lung Center has not filed a brief.


Appellant Bavan Mack was employed by Deborah Heart and Lung Center (DHLC) as a nursing assistant from August 12, 2002 until November 7, 2012. Mack appeals from a final decision of the Board of Review (Board) that she was disqualified from receiving unemployment benefits because she had been discharged for severe misconduct connected to her work. We affirm.

On October 31, 2012, Mack was assigned to test the blood sugar level of a diabetic patient (Patient A). Mack understood the proper procedure to be followed for taking blood sugar levels of DHLC patients. She explained that the patient identification is scanned; his name is confirmed and following the test, the patient's blood sugar level is recorded in a log book that is maintained to monitor the patients. On this occasion, Mack admittedly did not follow this procedure. She testified

The problem was I didn't check the book but like I said I know it was my fault because I took the blood sugar on the wrong person. That I know I did do and that I will take full responsibility for but as I said as I went on, I put everything in the book and I went on about my regular duties . . . .

Mack told the nurse she had verified Patient A's blood sugar but took the blood sugar level of a different patient.

Patient A became quite ill later in the night, diaphoretic and sweating heavily. Mack testified she took the patient's blood sugar and found his level was below 47. Patient A was given medication to increase his blood sugar. When confronted, Mack admitted she did not confirm the patient's identity as she had represented to the nurse.

Mack was terminated on November 7, 2012, based upon this incident and her prior disciplinary record. She had received written warnings, and, just six weeks before this incident, she was suspended without pay for one day for excessive absenteeism. At that time, Mack was told that, if she did not improve her attendance and work performance, she would be terminated.

The deputy claims examiner and Appeal Tribunal found that appellant's failure to perform a blood sugar test on the correct patient rose to the level of severe misconduct because her actions placed a patient's life in jeopardy. The Board of Review affirmed.

On appeal, appellant argues that the Board erred in determining she engaged in severe misconduct connected with the work, and in relying upon the testimony of Elizabeth Gibbons, the Assistant Director of Human Resources at DHLC.1 She contends that, because her "simple recording error" was unintentional, and her prior attendance issues unrelated, she should not have been disqualified for benefits based upon severe misconduct connected with her work. We disagree.

When reviewing an agency decision, an appellate court must determine whether sufficient credible evidence exists in the record below from which the findings made could reasonably have been drawn. In re Taylor, 158 N.J. 644, 656 (1999). This review must encompass the "proofs as a whole" and must take into account "the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 598 (1965).

N.J.S.A. 43:21-5(b) identifies three categories of misconduct2 connected with the work that result in disqualification for unemployment benefits: misconduct, severe misconduct and gross misconduct. "Severe misconduct" was added to N.J.S.A. 43:21-5(b) as a new misconduct provision by amendment in 2010. Although the statute does not define this term, it provides examples of misconduct that the Legislature intended to include within that provision

Examples of severe misconduct include, but are not necessarily limited to, the following: repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer, falsification of records, physical assault or threats that do not constitute gross misconduct as defined in this section, misuse of benefits, misuse of sick time, abuse of leave, theft of company property, excessive use of intoxicants or drugs on work premises, theft of time, or where the behavior is malicious and deliberate but is not considered gross misconduct as defined in this section.

[N.J.S.A. 43:21-5(b)(emphasis added).]

In Silver, supra, we construed these examples "as requiring acts done intentionally, deliberately, and with malice[,]" and stated we understood intentional and malicious "to include deliberate disregard of the employer's rules or policies, or deliberate disregard of the standards of behavior that the employer has the right to expect of an employee." 430 N.J. Super. at 55-56.

In this case, Mack has a history of repeated violations of DHLC's rules regarding attendance that resulted in discipline and even a suspension without pay. However, the more egregious misconduct was committed, just six weeks after her suspension, when she admittedly and knowingly failed to follow DHLC's procedure for verifying that she was testing the blood sugar of a diabetic patient after she had been directed to do so. Her actions violated her employer's rules and displayed a disregard of the behavioral standards her employer had the right to expect of her. We are therefore satisfied that the Board's determination that she was terminated for severe misconduct was supported by the credible evidence.


1 We need not address Mack's challenge to the Board's reliance upon Gibbons's testimony because Mack admits the facts that support the Board's determination.

2 N.J.A.C. 12:17-10.2(a) defines misconduct as an act that is "improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee." Accord Silver v. Bd. of Review, 430 N.J. Super. 44, 52-53 (App. Div. 2013); Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957).