Opinion
DOCKET NO. A-3419-12T1
10-01-2014
ROBERT DYE, Appellant, v. BOARD OF REVIEW and VIRTUA-WEST JERSEY HOSPITAL, Respondents.
Alan H. Schorr argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Arykah A. Trabosh, on the brief). Anthony DiLello, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. DiLello, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Manahan. On appeal from the Board of Review, Department of Labor, Docket No. 388,572. Alan H. Schorr argued the cause for appellant (Alan H. Schorr & Associates, P.C., attorneys; Arykah A. Trabosh, on the brief). Anthony DiLello, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. DiLello, on the brief). PER CURIAM
After more than thirty years of employment as a paramedic with respondent Virtua-West Jersey Hospital, Robert Dye was suspended for giving the wrong medication to a patient and, after an investigation, was terminated. In its final decision, the board of review denied unemployment benefits, finding Dye engaged in "severe misconduct," N.J.S.A. 43:21-5(b). In this appeal, Dye argues he did not engage in "misconduct" within the statute's meaning, let alone "severe misconduct." We agree and reverse.
It is important to observe that we are only here considering whether Dye is entitled to unemployment benefits, not whether he was lawfully terminated by his employer.
From 1936 until 2010, this state's unemployment compensation laws disqualified for benefits employees discharged for "misconduct" or "gross misconduct." Silver v. Board of Review, 430 N.J. Super. 44, 48 (App. Div. 2013). The Legislature did not define the former and defined the latter as "an act punishable as a crime of the first, second, third or fourth degree." Ibid. (quoting N.J.S.A. 43:21-5(b)). In 2010, the Legislature added a third category — "severe misconduct." Ibid. (quoting L. 2010, c.. 37, § 2). We recognized in Silver that this category constitutes "an intermediate form of misconduct, requiring greater culpability than simple misconduct, but less than gross misconduct." Id. at 48-49. Unfortunately, the Legislature did not define "severe misconduct" nor has the Department of Labor adopted regulations to illuminate our path. Because, however, it is safe to conclude that the legislative intent was to create an area of disqualification between misconduct and gross misconduct, we start by considering whether Dye's actions constituted "misconduct" within the meaning of the case law. Only upon a proper finding of misconduct does it become necessary to consider what may be lawfully characterized as "severe." See, e.g., id. at 58.
The Legislature did, however, provide examples of what constitutes severe misconduct: "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). Our canons of construction strongly suggest that the final phrase of this grouping of categories informs the intent required to prove any of the more specific categories. That is, not any "misuse of benefits" will result in a finding of severe misconduct; to disqualify the employee it will have to be demonstrated that the misuse of benefits was "malicious and deliberate." See Germann v. Matriss, 55 N.J. 193, 220 (1970) (recognizing that "the meaning of words may be indicated and controlled by those with which they are associated"); see also N.J. Mfrs. Ins. Grp. v. Holger Trucking Corp., 417 N.J. Super. 393, 397 (App. Div. 2011).
In scouring the record for support for the board's finding of misconduct and in ascertaining whether the board applied accepted legal principles, we initially recognize that the parties do not question that Silver sets forth the proper standard to be applied to Dye's claim, even though Silver was decided a month after the board of review's decision. Silver is based on well-established antecedents as well as the Department of Labor's 2003 regulation, N.J.A.C. 12:17-10.2(a), which describes what constitutes "misconduct." In this regard, we need not repeat Silver's exhaustive review of prior case law or its analysis of the 2003 regulation, but merely repeat Silver's description of the two-prong standard:
First, the conduct must be improper, intentional, connected with the work, malicious, and within the employee's control. Second, the conduct must also be either a deliberate violation of the employer's rules or a disregard of the standards of behavior which the employer has the right to expect.
[430 N.J. Super. at 53.]
In examining the disposition of Dye's claim in light of this standard, we observe that the hearing officer found Dye disqualified based on the following conclusory findings:
You were discharged for repeated violation of a company rule. You had been advised by your employer of the company policy. Your actions constitute a willful and deliberate disregard of the standards of behavior your employer had a right to expect. Therefore, your discharge was for severe misconduct connected with the work. You are disqualified for benefits.Dye appealed.
The appeal tribunal conducted a telephonic hearing, at which Dye and three of the employer's representatives testified, before rendering the following findings:
[Dye] was employed as a paramedic, from 11/09/81 through 05/01/12 when he was discharged from the job. [Dye] was suspended on 04/25/12 for giving the wrong medication to a patient. [Dye] was instructed by his employer . . . what medication to administer to the patient. [Dye] grabbed the wrong medication. [Dye] was suspended while the employer did an investigation. [Dye] was given prior warnings for performance issues and having a[n] accident with the company vehicle.After reciting the applicable statute, the appeal tribunal concluded:
[Dye's] action in giving the wrong medication to the patient could [have] cause[d] serious harm to the patient and repercussions [for] the employer. His discharge constitutes severe misconduct connected with the work.
Dye again administratively appealed. The board of review first stated its agreement with the appeal tribunal's opinion and then added that Dye "had been previously warned and his actions could have affected the patient's health or life," resulting in the board of review's conclusion that Dye's actions rose to "the level of severe misconduct." Because the board of review incorporated the appeal tribunal's written decision, we look to both opinions in determining whether the facts found support the ultimate conclusion that defendant engaged in "severe misconduct."
Regarding the first prong of the misconduct test, we observe there is no mention — let alone a finding — in either the board of review's opinion, or the incorporated appeal tribunal opinion, that Dye acted intentionally and maliciously. N.J.A.C. 12:17-10.2(a) requires proof and a determination that the conduct fit those terms, as well as others. By emphasizing in Silver the word "and" in the regulation's listing of the characteristics of misconduct — "the conduct must be improper, intentional, connected with the work, malicious and within the employee's control," Silver, supra, 430 N.J. Super. at 53 — we expressed that there can be no doubt that the board of review cannot disqualify a worker for unemployment benefits on misconduct grounds without proof or a finding of intentional and malicious conduct. Those words were never uttered by the board of review or the appeal tribunal in their opinions, and there is no other language in those opinions that would convey an understanding that the board of review implicitly determined Dye acted intentionally and maliciously in giving the patient the wrong medication.
We further note that Dye denied he acted with malice or that he intentionally gave the patient the wrong medication; his description of what occurred suggested only his failure to abide by his employer's protocol. In addition, the employer's representative did not argue that Dye acted intentionally and maliciously. The employer argued only that the evidence demonstrated Dye engaged in gross negligence, which is not an acceptable standard for determining the presence of misconduct:
Well we're certainly not contending that [Dye] gave the wrong medication on purpose but he has clearly testified himself, it is his responsibility to confirm that the medication that he was administering is indeed the medication that he was supposed to administer. In this case, he admitted that he did not do that. It would have taken seconds to do it. He made a decision — a deliberate decision not to do it and we would submit . . . that that is grossly negligent on his part and it did indeed impact that patient's condition wh[en] he made the decision not to follow the protocol. So we submit . . . although his actions were not deliberate, they certainly were grossly negligent in light of his significant responsibilities to the patient and the patient's safety and we feel that the determination, therefore, should be upheld because he made a deliberate decision not to follow the procedure or protocol.As can be seen, in arguing there was misconduct, the employer's own contentions are consistent with Dye's claim that he neither intentionally nor maliciously gave the patient the wrong medication; the employer argued only that Dye deliberately ignored his employer's regulations.
In fact, as can be seen from the quoted material, the employer's representative also denied that Dye acted deliberately, e.g., "although his actions were not deliberate, they certainly were grossly negligent."
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The board of review, of course, was not restricted by what the employer argued. But we discern from the board of review's decision that it drew a similar conclusion, holding that Dye deliberately disregarded his employer's protocol in medicating this patient and that his prior disregarding of the employer's regulations demonstrate the severity of his misconduct. This determination, however, constitutes only a portion of what was required to disqualify Dye from unemployment benefits. That is, the board of review only found the presence of the second misconduct prong, which requires "either a deliberate violation of the employer's rules or a disregard of the standards of behavior which the employer has the right to expect." Silver, supra, 430 N.J. Super. at 53. To disqualify Dye on misconduct grounds, the board was also required to make the finding required by the first prong — that Dye's actions were, among other things, "intentional" and "malicious." N.J.A.C. 12:17-10.2(a). The board made no such finding and, therefore, despite the limited standard of review applicable to such matters, see, e.g., Brady v. Bd. of Review, 152 N.J. 197, 211 (1997); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963), we are constrained to set aside the board of review's determination that Dye was disqualified from benefits for engaging in severe misconduct.
Because the absence of a finding on the first misconduct prong compels reversal, we need not consider Dye's interesting argument that the board of review may have applied a different standard on the severity aspect of N.J.S.A. 43:21-5(b) for medical personnel than for employees in other industries. The argument perhaps stresses the need for the adoption of regulations on what constitutes "severe" misconduct, but it is not an issue that we are required to decide in this case.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF APPELLATE DIVIDION