For affirmance -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
[39 NJ Page 559] The respondent Department of Civil Service sustained the dismissal of appellant Bernard A. Campbell as deputy director of the Division of Workmen's Compensation. Mr. Campbell appealed to the Appellate Division and we certified before argument in that court.
On March 11, 1957 the appellant was appointed by the Commissioner of Labor and Industry as a deputy director of compensation (now called judge of compensation, L. 1960, c. 58; N.J.S.A. 34:1A-12). The appellant, along with the other deputy directors, was considered by the Division as being subject to the terms of the civil service law including its provisions relating to service standards and ratings. See N.J.S.A. 11:7-7; R.S. 11:13-1; R.S. 11:4-3; N.J.S.A. 11:4-4(g). His appointment was without fixed term and he was removable only for cause as provided by the civil service law and rules. N.J.S.A. 11:7-7; R.S. 11:15-2 et seq.; cf. Swartz v. Civil Service Com., 3 N.J. Super. 6 (App. Div. 1949); Young v. Civil Service Commission, 127 N.J.L. 329 (Sup. Ct. 1941). Civil Service Rule 59(c) provides that there may be removal for "incompetency or inefficiency in the service or incapacity due to mental or physical disability"; 59(d) provides that "inefficiency in the performance of the duties of his position so that his service rating as maintained in accordance with the civil service rules is less than 70%" shall constitute sufficient cause for removal; and Rule 59 also states that removals may be made for causes other than those specifically enumerated.
In April 1958 the appellant was notified that he had received a service rating of unsatisfactory for the period from October 1, 1957 to March 31, 1958. His rating was 1.0 which was the lowest possible rating. He conferred with Mr. Ned J. Parsekian, then Director of the Division of Workmen's Compensation and was told, according to Mr. Parsekian's testimony, that the rating was a serious matter, that it indicated Mr. Campbell had not performed his duties with sufficient satisfaction, and that "it meant that he would have to improve markedly in the future and soon." Mr. Parsekian also testified he then informed Mr. Campbell that two consecutive unsatisfactory ratings would be basis for dismissal. On December 3, 1958, a service rating of unsatisfactory (1.0) for the period from April 1, 1958 to September 30, 1958 was sent to Mr. Campbell. Both of the
service ratings were signed by Mr. Parsekian and were duly served but the personnel employee of the Division of Workmen's Compensation evidently did not file them with the Civil Service Department until a much later date.
On December 5, 1958 the Division of Workmen's Compensation served a preliminary notice of disciplinary action on Mr. Campbell. The notice advised him that, pending hearing, he was removed from his position of deputy director because of incompetency and inefficiency in the service and because of the service ratings. It also advised that before final action was taken a hearing would be held on December 22, 1958 at which time Mr. Campbell could appear and offer any evidence or testimony in his defense. On December 22 the hearing was begun and it continued during February and March 1959 before George S. Pfaus, Acting Commissioner of the Department of Labor and Industry. On the Department's behalf, the service ratings were presented and testimony was introduced in support of ten specific charges of incompetency and inefficiency. In addition, evidence was introduced relating to two matters which occurred while the proceeding before the Acting Commissioner was pending and which bore on Mr. Campbell's fitness to continue as deputy director. He was advised that the Acting Commissioner would consider these matters and chose not to introduce any evidence to meet them. However, he did appear and introduced evidence bearing on the ten specific charges. After the close of the hearing, Acting Commissioner Pfaus rendered his opinion which dealt fully with the ten charges and the two additional matters. He concluded that the charges of incompetency and inefficiency had been sustained and that the appellant should be removed permanently from the position of deputy director.
On July 24, 1959 Mr. Campbell appealed to the Department of Civil Service from his dismissal as deputy director. A hearing de novo was held before Civil Service Commissioner Gilroy. It was begun on September 24, 1959, was continued during 13 additional days, and was finally concluded on June 30, 1960. Extensive testimony was introduced
before Commissioner Gilroy by the Department of Labor and Industry, which was represented by a Deputy Attorney General, and by Mr. Campbell, who was represented throughout the hearing by counsel. Briefs were submitted and on August 2, 1961 the Civil Service Commission rendered its decision sustaining the dismissal. Its formal opinion dealt in detail with the charges and the testimony and made appropriate factual findings. We will refer to those findings to such extent as may be required for the proper disposition of the appeal from the Commission's determination. In this connection the limited scope of judicial review must be borne in mind; ordinarily, we will not upset a determination by the Commission in the absence of a showing that it was arbitrary, capricious or unreasonable, or that it lacked fair support in the evidence, or that it violated legislative policies expressed or implicit in the civil service act. See Marro v. Civil Service Dept., 57 N.J. Super. 335, 346 (App. Div. 1959); cf. Briggs v. N.J. Dept. of Civil Service, 64 N.J. Super. 351, 354 (App. Div. 1960); East Paterson v. Civil Service Dept. of N.J., 47 N.J. Super. 55, 65 (App. Div. 1957); Dutcher v. Department of Civil Service, 7 N.J. Super. 156, 162 (App. Div. 1950). See also Rogers v. Dept. of Civil Service, 17 N.J. 533, 541 (1955); Kaplan, Civil Service 249-250 (1958).
In its first charge, the Department of Labor and Industry asserted that on his assignment to hear informal matters, Mr. Campbell failed to record necessary information and his recommendations, with resulting embarrassment to the Department in that at least on one occasion it was obliged to ascertain from the insurance carrier what had been the disposition of the matter. As indicative of Mr. Campbell's attitude, the Department pointed out that he had walked out on his training session in informal matters; his explanation is that he had been called out by another deputy director. The Commission stated that it did not consider the walking out as a major issue but it did find that Mr. Campbell had failed to record necessary information as charged. It expressed the
thought that the first charge was merely ministerial in character and evaluated it "only as part of cumulative testimony of his service in the Department."
The second charge carried implications of greater significance. In a proceeding which may here be described as the Lowe case, an award of 1/2 of 1% was rendered. Counsel for the insurance carrier testified that Mr. Campbell stated that he would have made it 1/4 of 1% "if it were not so difficult to figure it out." Mr. Parsekian testified that when the unusual award came to his attention, he made inquiry and was told by Mr. Campbell that since the petitioner was a colored person he did not want him to think that he was being discriminated against and "so rather than dismiss the case I gave him a half per cent of total." During the hearing before Commissioner Gilroy, Mr. Campbell gave testimony which sheds further light on the award.
Mr. Campbell testified that in another matter he had rendered an award of 2% which was reversed on appeal and that at that time a deputy told him that if he had not awarded as much the chances were that he "would not have been taken up in the first place." When asked whether he believed that it would be improper to consider the possibility of reversal in fixing the amount of the award, he said, "not necessarily" since the employee had some injury for which he should be compensated and "you are certainly not doing him a favor if you give him an award that invites an appeal because of the size of it." He indicated that he viewed workmen's compensation legislation simply as a matter of favor to the employee. But cf. Danek v. Hommer, 9 N.J. 56, 58 (1952). He rejected the rule of preponderance of evidence saying, "if the evidence leaves you in such a conclusion that it is equally consistent with the verdict in favor of the petitioner as well as a dismissal, then you must give an award in your determination for the petitioner." The law is otherwise. See Parker v. John A. Roebling's Sons Co., 135 N.J.L. 440, 442 (Sup. Ct.), aff'd 136 N.J.L. 635 (E. & A. 1947); Page v. Federated Metals Div., Amer. Smelt. & Ref. Co., 71 N.J. Super. 59, 61
(App. Div. 1961), certif. denied 38 N.J. 302 (1962). Later on in his testimony, he expressed the view that when dealing with what he described as a minimal award, it was proper, in fixing the amount, to consider the possibility of reversal since "it doesn't do the Department much good, or the injured workman, if you give an award that invites an appeal, and it's taken, and that his money that he needs badly is denied to him." This indefensible approach suggests a lack of comprehension of the nature of the deputy director's functions and reference to it serves to reenforce the Commission's finding that in the Lowe case Mr. Campbell had rendered an award which he fixed at 1/2% "for reasons other than the amount of disability proven."
The third charge related to the Camburn case in which the petitioner was awarded permanent partial disability of 15% of total in addition to 21 weeks of temporary disability. During the noon hour following the hearing, the petitioner told Mr. Campbell that he wanted medical treatment rather than a monetary award and, according to his testimony, Mr. Campbell replied, "How stupid can you be? You go to the lawyer about that." The petitioner testified further that at a later meeting he told Mr. Campbell that he could not understand the kind of hearing he had received and that he was then told, "You are not supposed to that's what the lawyer goes to college for." The petitioner then wrote to Mr. Parsekian and thereafter the matter was brought on before another deputy director who entered an award suspending the permanent disability payments and ordering further medical treatment. The Commission considered the third charge of some significance not because of the award rendered by Mr. Campbell but because of the attitude evidenced by him in his conversations with the petitioner.
The fourth charge related to the Caucci case in which an application for benefits from the One Per Cent Fund came on for hearing before Mr. Campbell, was voluntarily discontinued, and was followed by a second application. Mr. Parsekian testified that he reviewed all One Per Cent Fund
decisions before transmitting them to the Commissioner and that when he noticed the voluntary discontinuance and reapplication in the Caucci matter he made inquiry and ascertained from the petitioner's attorney that when his doctor testified that the petitioner was 85% disabled (whereas 100% disability is required for benefits from the One Per Cent Fund) Mr. Campbell advised that there should be a voluntary discontinuance. The petitioner's attorney testified that she had another doctor who would state that the petitioner was 100% disabled and that she requested an adjournment in order to enable the introduction of his testimony but that Mr. Campbell repeated his recommendation that there be a voluntary discontinuance. Mr. Parsekian viewed Mr. Campbell's action as an effort to wash out the testimony which would not support the claim for benefits from the One Per Cent Fund. He expressed the view that there should have been no voluntary discontinuance but that the matter should have been adjourned so that the additional testimony could have been introduced and the case properly determined on the basis of all of the testimony. When Mr. Parsekian asked Mr. Campbell for an explanation, he was told that the petitioner had been unable to produce testimony respecting a previous disability and that the determination to discontinue the application was that of the petitioner's attorney. After examining the record in the Caucci matter, Mr. Parsekian found Mr. Campbell's explanation "to be inaccurate." The Commission stated that, apart from the cumulative evidence it afforded bearing on Mr. Campbell's attitude and his knowledge of the procedure, it considered the Caucci matter as "comparatively unimportant"; it did, however, make a finding that Mr. Campbell had improperly permitted the case "to be listed for voluntary dismissal after testimony adverse to the petitioner was adduced."
The fifth charge related to the Turner case in which Mr. Campbell made an award to the petitioner of 12 1/2% of total permanent disability. Thereafter the petitioner made application for benefits from the One Per Cent Fund. See N.J.S.A.
34:15-94; N.J.S.A. 34:15-95. During the course of the One Per Cent Fund hearing, it appeared that the petitioner's pre-existing condition was aggravated by the industrial accident into total disability. On that showing the petitioner's counsel agreed that benefits were not payable from the One Per Cent Fund. See Wexler v. Lambrecht Foods, 64 N.J. Super. 489, 501 (App. Div. 1960), certif. denied 34 N.J. 326 (1961); cf. Ratsch v. Holderman, 31 N.J. 458 (1960). Counsel then sought to reopen the original proceeding before the Division. He testified that although he had always held the opinion that the accident had aggravated the petitioner's pre-existing condition and brought on total disability, he nonetheless made no objection to the amount of the award because Mr. Campbell gave him the impression that the petitioner could automatically obtain the balance in a One Per Cent Fund proceeding where the earlier findings would be res judicata. Mr. Parsekian testified that the findings would not be res judicata and that it was possible in the One Per Cent Fund proceeding to reject a prior finding on the issue of causal relation. He testified further that Mr. Campbell, as well as all of the other deputy directors, had received the necessary information and instructions relating to One Per Cent Fund proceedings. The Commission found that in the Turner case Mr. Campbell had misadvised the petitioner's counsel but it quite properly remarked that counsel himself had the responsibility to ascertain the applicable procedures and principles and act accordingly in the interests of his client.
The sixth charge (Throckmorton) was not pressed and the next related to the Tocci case in which an employee, while warming up for an inter-shop soft ball game, attempted to backhand a fly ball and injured himself. He filed his claim petition for compensation in the Division and the matter came on before Mr. Campbell who dismissed the petition upon the finding, inter alia, that the employee had been "willfully negligent." Negligence is not a defense to a petition for ...