In the Matter of Linda Sullivan, Department of Corrections CSC Docket No (Civil Service Commission, decided March 25, 2009)

Transcription

1 In the Matter of Linda Sullivan, Department of Corrections CSC Docket No (Civil Service Commission, decided March 25, 2009) Linda Sullivan, a Classification Officer 2 at Southern State Correctional Facility, Department of Corrections, represented by Mario A. Iavicoli, Esq., requests an award of counsel fees, in accordance with the attached Civil Service Commission (Commission) decision rendered on July 16, 2008, which granted her sick leave injury (SLI) benefits from July 5, 2007 to July 4, As set forth in more detail in the attached Commission decision, at approximately 7:45 a.m. on July 5, 2007, the appellant sustained workrelated injuries to her left hand, right knee, left upper lip, neck and jaw, when she slipped and fell on a wet floor in the hallway of her facility. As a result of these injuries, the appellant was out of work commencing on July 5, The appointing authority initially denied the appellant s request for SLI benefits, based on its assertion that she was authorized to return to work on July 9, Following the appellant s appeal of the denial of SLI benefits, the appointing authority added that there was no evidence that the floor on which the appellant slipped was wet. It also claimed that SLI benefits were properly denied in accordance with N.J.A.C. 4A:6-1.6(e), contending that it performed an extensive search and found nothing on record to indicate that the appellant was approved to come in early on this day. The appointing authority alleged that the appellant s approved work hours on the date in question were 8:30 a.m. to 4:00 p.m., and her injuries were sustained at 7:45 a.m. In In the Matter of Linda Sullivan (CSC, decided July 16, 2008), the Commission determined that the appellant was entitled to SLI benefits. With regard to the appellant s authorization to return to work, the Commission found: It is noted, however, that in the approximate one year since the appellant has been treated for her injuries, there is one medical report in the record that authorizes her to return to work with restrictions. Thus, at best, the appellant was authorized to return to restricted duty for one week, i.e., July 9, 2007 to July 16, Additionally, in his July 23, 2007 report, Dr. Smick added a note to [p]lease excuse week of 7/13/07 for multiple injuries. The appellant asserts, and the Civil Service Commission (Commission) agrees, that this addendum was

2 meant to retroactively authorize her out of work for the week of Monday, July 9, 2007 to Friday, July 13, In addition, the Commission determined that the appellant s time sheet for the date in question, which was reviewed and approved by her supervisor, demonstrated that she was approved to work starting at 7:30 a.m. Further, the Commission failed to see the relevancy of whether or not the floor was wet at the time the appellant slipped and fell. In this regard, it noted that [c]ontrary to the appointing authority s suggestion, there is no requirement that the injury be caused by an occupational hazard. Accordingly, the Commission granted SLI benefits. 1 Subsequently, the appellant submitted the instant request for counsel fees. She contends that sufficient cause exists to award counsel fees in connection with a successful SLI appeal where the appointing authority s denial of such benefits was not justified and where the employer ignored medical documentation from an employee s physician authorizing said employee off duty. The appellant cites In the Matter of Barbara Catlett, Elena McAllister, and Janet Cook Flanagan (Merit System Board 2, decided April 10, 2002), aff d on reconsideration (MSB, decided December 4, 2002). The appellant argues that the appointing authority s own physicians authorized her out of work for the relevant time frame; thus, its denial of SLI benefits was based on the appointing authority s decision to ignore the orders of its own physicians. She also emphasizes that, even if Dr. Smick had not clarified his July 9, 2007 note at a later date, the appointing authority only possessed cause to deny her SLI benefits for one week out of the more than one year she was out of work. The appellant maintains that the appointing authority acted in bad faith when it denied her SLI claim in its totality on this basis. Additionally, the appellant contends that the appointing authority wrongfully denied her request for SLI benefits, due to its negligence in ascertaining the hours she worked on July 5, She claims that the appointing authority s failure to check its own time records to verify her approved work hours on July 5, 2007 led it to wrongfully deny her SLI claim. Finally, the appellant asserts that the appointing authority s reliance on the irrelevant issue of whether or not the floor was wet supports her request for counsel fees. 1 It is noted that, while the appellant was still out of work due to the injuries sustained on July 5, 2007, the Commission noted that the award of SLI benefits was limited to July 5, 2007 to July 4, 2008 in accordance with N.J.A.C. 4A:6-1.6(b)3. 2 On June 30, 2008, Public Law 2008, Chapter 29 was signed into law and took effect, changing the Merit System Board to the Civil Service Commission, abolishing the Department of Personnel and transferring its functions, powers and duties primarily to the Civil Service Commission. In this decision, the former names will be used to refer to actions which took place prior to June 30, 2008.

3 In response, the appointing authority notes that all requests for SLI benefits are forwarded to an SLI committee, which ultimately determines whether or not an employee s SLI claim has merit. The appointing authority asserts that, in response to the appellant s SLI claim, it contacted her supervisor to ascertain her regular working hours and was told that her normal hours were 8:30 a.m. to 4:00 p.m. Thus, it contends that it justifiably relied on this representation when denying SLI benefits. The appointing authority also argues that there were contradictions in [the appellant s] reports of the accident, which revolved around whether or not the floor was wet. In response, the appellant argues that her regular working hours were not relevant to a determination of whether she was entitled to SLI benefits. Rather, she avers that the appropriate inquiry would have been what her approved hours of work were on the date in question, which could have been easily ascertained by reviewing the appellant s time sheet. By suggesting that she was lying about when she started work and how her injury occurred, the appellant argues that the appointing authority demonstrates its bias and animosity towards her. The appellant characterizes the appointing authority s treatment of her SLI claim as a negligent folly. Moreover, the appellant contends that, had a proper investigation of her work accident been conducted, she would have been granted SLI benefits at the outset without the need for engaging legal counsel to pursue her appeal. In reply, the appointing authority maintains that it based its denial of SLI benefits on its interpretation of the New Jersey Administrative Code, and the denial was not malicious. Although the appointing authority concedes that a miscommunication between the Human Resource Manager and the appellant s supervisor occurred when determining the appellant s approved work hours on July 5, 2007, it claims that this result was not intentional. The appointing authority also argues that it consistently denies SLI benefits for slip and falls unless there are extenuating circumstances i.e. running to a code, freshly mopped floor with no safety signs posted, when maintenance repairs are necessary, etc. Thus, it claims that the denial of the appellant s SLI claim was consistent with its past practice, demonstrating that the appellant was not singled out for unfavorable treatment. In response, the appellant maintains that the appointing authority s decision was based on a negligent and incompetent investigation regarding the incident that caused her injury. CONCLUSION

4 N.J.S.A. 11A:2-22 provides that back pay, benefits, seniority and reasonable counsel fees may be awarded as provided by rule. N.J.A.C. 4A:2-1.5(b) provides: Back pay, benefits and counsel fees may be awarded in disciplinary appeals and where a layoff action has been in bad faith. See N.J.A.C. 4A: In all other appeals, such relief may be granted where the appointing authority has unreasonably failed or delayed to carry out an order of the [Commission] or where the [Commission] finds sufficient cause based on the particular case. The instant matter is not a disciplinary appeal. Thus, back pay, benefits, and counsel fees may only be awarded where the appointing authority has failed or delayed to carry out a Commission order or if the Commission finds sufficient cause in this particular matter. Sufficient cause has been interpreted by the Commission as bad faith or invidious motivation for a determination. See In the Matter of Kevin Nasatka (MSB, decided November 3, 2005); In the Matter of Venus Young (MSB, decided January 29, 2002). In the matter at hand, the record does not establish bad faith or some invidious reason for the appointing authority s denial of the appellant s request for SLI benefits. In this case, the appointing authority presented three reasons to support its decision to deny SLI benefits: the appellant s authorization to return to work on July 9, 2007, the fact that her injury did not occur during her regular work hours, and the dispute that arose regarding whether or not the floor on which the appellant slipped was wet. As the Commission explained in its prior decision, none of these reasons were factually supported by the record presented or provided a valid basis to support the denial of SLI benefits. While the Commission agrees that a more thorough investigation of its own records may have led the appointing authority to the correct conclusion in this matter, mere negligence in the investigation of the facts does not, in and of itself, establish an entitlement to counsel fees. The appellant has not established that the appointing authority ignored medical documentation supplied by its own physicians and time sheets that were at its disposal as a result of any improper or invidious reasons. Rather, it appears likely that the appointing authority simply did not thoroughly review records that were available to it when it reviewed the appellant s SLI claim. Although it is unfortunate that the appointing authority would perform such a cursory investigation, necessitating an appeal and further expenditure of the appellant s and the State s resources, its actions were not taken in bad faith.

5 In addition, the appointing authority mistakenly believed that the condition of the floor on which the appellant slipped was somehow relevant to its determination. Indeed, the appointing authority essentially admits that it consistently denies SLI benefits for slip and falls unless there are extenuating circumstances, such as a wet floor, notwithstanding its awareness of the clear language of SLI regulations and numerous Commission and Board decisions that clearly hold that such facts are irrelevant. See e.g., In the Matter of Anthony Sorantino (CSC, decided September 24, 2008); In the Matter of David Williams (CSC, decided September 10, 2008); In the Matter of William Boal (CSC, decided August 27, 2008); In the Matter of Torshika Lewis (CSC, decided August 27, 2008); In the Matter of Angelo Soto (MSB, decided March 8, 2006), aff d on reconsideration (MSB, decided December 20, 2006); In the Matter of Bobby Salter (MSB, decided July 13, 2005), aff d on reconsideration (MSB, decided November 22, 2005); In the Matter of Michael Womack (MSB, decided November 17, 2004); In the Matter of Jellether Robertson (MSB, decided April 10, 2001); In the Matter of Willard Breckon (MSB, decided September 29, 1998); In the Matter of Leonard S. Mathis (MSB, decided December 18, 1990). The Commission notes that, had this willful ignorance of applicable regulations been the sole basis for the appointing authority s denial of SLI benefits, an award of counsel fees would have been appropriate. Finally, the Commission notes that Catlett, et al., supra, does not support the appellant s claimed entitlement to counsel fees. Rather, in that matter, the Board found sufficient cause to award counsel fees since their [SLI] appeals were inextricably related to their discipline, were addressed at the same hearing as the discipline, and both appeals stemmed from exposures at work. It is clear that Catlett presented unique circumstances in which the appellants were disciplined for their absences that were determined to be related to exposures to chemicals at work. These facts are entirely distinguishable from the instant matter in that there was no related discipline to support an award of counsel fees. Accordingly, the appellant has not established her entitlement to counsel fees in regard to the Commission s July 16, 2008 final decision. ORDER Therefore, it is ordered that this request be denied This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.