CARMEN AMADOR VS. NEW JERSEY DEPARTMENT OF HEALTH (NEW JERSEY DEPARTMENT OF HEALTH)

NOT FOR PUBLICATION WITHOUT THE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.

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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

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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

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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.

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