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 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-4259-16T2

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. 
3 A-4259-16T2

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 
5 A-4259-16T2

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 
6 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).
7 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 
8 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.