Opinion
DOCKET NO. A-6262-11T4
06-24-2014
CAROL A. KIENY, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT AND BAYADA NURSES, INC. -CCP, Respondents.
John M. Chomko, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief). Respondent Bayada Nurses, Inc. -CCP has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Sabatino.
On appeal from the Board of Review, Department of Labor and Workforce Development, 357,751.
John M. Chomko, attorney for appellant.
John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).
Respondent Bayada Nurses, Inc. -CCP has not filed a brief. PER CURIAM
Carol A. Kieny appeals from the final decision of the Board of Review (the Board) that affirmed the decision of the Appeal Tribunal (the Tribunal), finding her ineligible for unemployment benefits because she left work voluntarily without good cause attributable to the work. See N.J.S.A. 43:21-5(a). Kieny, a licensed clinical social worker, argues that, because a "good faith disagreement" with her employer regarding "a potential violation" of the health information privacy provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936, led to her resignation, her separation was for good cause connected to the work, and she was therefore eligible for benefits. She also asserts that the hearing examiner misunderstood and confused her testimony, failed to properly evaluate her testimony regarding alleged violations of ethical rules and failed to "fully and fairly evaluate the issue of good cause" for leaving her position.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
Kieny was employed by Bayada Nurses, Inc. -CCP ("Bayada") commencing in October 2010. In August 2011, Michael Comegys, manager of Bayada's Vineland office, assigned her to find an acceptable long-term care placement for an elderly patient. The patient's wife was herself seriously ill, and the patient's application for Medicaid benefits was pending, but had not yet been approved.
Kieny performed a clinical assessment of the patient, evaluated his needs and considered his expressed preference for various facilities. Comegys found out that those facilities rejected the patient, and he instructed Kieny to consider other facilities. Kieny's and Comegys's testimony before the Tribunal's hearing examiner differed significantly as to what exactly transpired thereafter.
Kieny claimed that Comegys instructed her to send the patient's records to the other facilities and get him admitted, even though the patient expressed no interest in those facilities, had not signed a release and his wife did not possess a power of attorney or health care proxy. Kieny refused and consulted her "professional organization."
In an e-mail to Comegys later that evening, Kieny said she had "concerns for some time about working at Bayada," due to the tendency of its management to "jump to very negative conclusions about staff" and because of "negative feedback" from her predecessor social worker. Kieny was unwilling to "overlook a patient's rights" and "violate HIPPA." She believed this was "illegal and unethical," and no longer "fe[lt] comfortable working further for Bayada." Kieny advised she would be applying for unemployment benefits and "expect[ed] that Bayada w[ould] not oppose" her request. However, if Bayada filed opposition, Kieny would "be forced to bring up [her] ethical concerns."
Comegys claimed that he was told by the patient's clinical manager that the patient's wife was upset with Kieny and demanded that Comegys call her. After speaking to her, Comegys anonymously contacted other nursing homes and found a nearby facility that would accept the patient while his Medicaid benefits were pending approval. The patient was placed within days.
Comegys denied ever asking Kieny to disclose any privileged medical information, and he said he was able to make inquiries about placing the patient without disclosing any such privileged medical information. In her testimony, Kieny acknowledged that asking preliminary questions of a facility and providing general information, for example, the gender of the patient, would not violate the patient's privilege. She testified, however, that Comegys never asked her to call the facilities and see if they were accepting "Medicaid pending" patients.
In its finding of facts, the Tribunal determined that Comegys did inform Kieny that the patient's wife wanted to explore other facilities even though they were not the patient's chosen ones, but Comegys "did not mean that the wife had official guardianship" over the patient. It also found that Comegys "instructed [Kieny] to contact the other facilities for questioning for proper patient placement[,]" and that Kieny "knew that these facilities did answer patient admission questions without medical records." It further found that Kieny "refused to investigate because the patient did not authorize [release of his] records to the facilities and because the [patient's] wife had no official guardianship of the patient." Thereafter, Kieny reported the incident to her professional association and resigned.
The Tribunal concluded that based upon these facts, Kieny failed to establish that Comegys asked her to do "anything but the legal and ethical steps of proper placement." The Tribunal accepted "as credible" that Kieny "quit without confirmation that the proper placement required was compromised." It determined she left work voluntarily without good cause attributable to the work. On appeal, the Board affirmed the Tribunal's decision, and this appeal followed.
Our "capacity to review administrative agency decisions is limited." Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citation omitted). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J. Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported by sufficient credible evidence, [we] are obliged to accept them." Ibid. (quotation omitted); see Bustard v. Bd. of Review, 401 N.J. Super. 383, 387 (App. Div. 2008). Only if the Board's action was arbitrary, capricious, or unreasonable should it be disturbed. Ibid.
N.J.S.A. 43:21-5(a) provides that "[a]n individual shall be disqualified for benefits . . . [f]or the week in which the individual has left work voluntarily without good cause attributable to such work . . . ." An employee who leaves work voluntarily has the burden of demonstrating that she did so with good cause that was attributable to her work. Morgan v. Bd. of Review, 77 N.J. Super. 209, 213 (App. Div. 1962).
"An employee's reason for leaving h[er] employment 'must meet the test of ordinary common sense and prudence.'" Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997) (quoting Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964)). "The decision to leave employment must be compelled by real, substantial and reasonable circumstances" attributable to the work. Domenico v. Labor & Indus. Dep't of Review, 192 N.J. Super. 284, 288 (App. Div. 1983).
Kieny argues that her refusal to release the patient's records was based upon her reasonable belief that that violated her profession's ethics and HIPPA. However, implicit in the Tribunal's decision and the Board's final determination is the rejection of Kieny's claim that Comegys specifically told her to provide the nursing homes with the patient's records. Clearly, the Tribunal and Board Comegys's found more credible Comegy's version of the conversation, i.e., that he wanted Kieny to make preliminary calls to see if the facilities would accept a "Medicaid pending" patient. The Tribunal and the Board also implicitly rejected the claim that Comegys was ordering Kieny to violate her patient's wishes, finding that, although the patient's wife wanted these other facilities contacted, Comegys never implied that she was the patient's legal guardian.
In short, the Tribunal's and the Board's findings were based largely upon credibility determinations reached after hearing two divergent accounts. We defer to those credibility decisions if we find sufficient evidentiary support in the record. Messick v. Bd. of Review, 420 N.J. Super. 321, 330 (App. Div. 2011). In this case, there was sufficient credible evidence in the record for the Board to determine that Comegys, in fact, did not ask Kieny to violate her patient's rights or her professional ethics. Having reached that determination, Kieny's decision to leave work was "voluntary without good cause attributable to such work[.]" N.J.S.A. 43:21-5(a).
We find the balance of Kieny's arguments to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). It suffices to say that in each instance, the contentions attack the sufficiency of the Tribunal's consideration of the evidence. As already noted, we find the Tribunal's determinations, and in turn, those administratively affirmed by the Board, to be adequately supported by the evidence in the record. R. 2:11-3(e)(1)(D).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION