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In the Matter of

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 2, 2012

IN THE MATTER OF SAMANTHA VERWILT, OFFICE OF THE PUBLIC DEFENDER.

On appeal from the Civil Service Commission, CSC Docket No. 2010-2960.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

Submitted December 14, 2011 -

Before Judges Lihotz and Waugh.

Appellant Samantha Verwilt appeals the final agency decision of the New Jersey Civil Service Commission (Commission) denying her application for sick leave injury (SLI) benefits arising from an accident that occurred while she was driving a rental car on official business in another state. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

Verwilt is an assistant deputy public defender, employed by the Office of the Public Defender (OPD). On February 5, 2010, while in North Carolina on official business, she was involved in a motor vehicle accident, in which her rental car left the roadway, crashed into a sign and a roadway median.

At the time of the accident, it was cold, raining, and the road was wet. Verwilt told the police officer who responded to the scene that she believed she was traveling approximately sixty miles per hour. According to the police report, the speed limit where the accident occurred was fifty-five miles per hour. Verwilt received a citation for "failing to maintain lane control within a single lane while driving on a street with clearly marked lanes for traffic," in violation of N.C. Gen. Stat. § 20-146(d)(1). The local prosecutor eventually dismissed the citation.

As a result of the accident, Verwilt sustained injuries to her neck, right knee, right wrist, right shoulder, and left hip, some of which required surgery. She was "authorized out of work" on February 8 and 11, and February 16 through February 23. She applied for SLI benefits, but OPD denied her application. In its denial letter, OPD explained its reasons as follows:

[I]n accordance with N.J.A.C. 4A:6-1.6(c)6 [sic], an injury or illness is not compensable when the appointing authority has established that the employee has been grossly negligent. Documentation provided by you including your statement, a citation for "failing to maintain lane control within a single lane while driving on a street with clearly marked lanes for traffic" and the police report support and necessitate this denial.

Verwilt appealed to the Commission. On October 8, the Commission upheld OPD's decision, finding that Verwilt operated the vehicle in a grossly negligent manner. This appeal followed.

II.

On appeal, Verwilt argues that the Commission's decision was unreasonable, arbitrary and capricious, and that there is no support in the record for a finding of gross negligence.

Our role in reviewing the decision of an administrative agency is limited. In re Taylor, 158 N.J. 644, 656 (1999) (quoting Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988)) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997); Goodman v. London Metals Exch., Inc., 86 N.J. 19, 28 (1981)). We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious, or unreasonable; that there was a lack of fair support in the evidence; or that the decision violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)); Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). Further, decisions of administrative agencies carry with them a presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). We may not vacate an agency's determination because of doubts as to its wisdom or because the record may support more than one result. De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.) (citations omitted), certif. denied, 102 N.J. 337 (1985).

Pursuant to N.J.A.C. 4A:6-1.6(d)(6), "[a]n injury or illness is not compensable when the appointing authority has established that the employee has been grossly negligent." Model Civil Jury Charge 5.12 (footnote omitted) defines "gross negligence" as follows:

Gross negligence is an act or omission, which is more than ordinary negligence, but less than willful or intentional misconduct. Gross negligence refers to a person's conduct where an act or failure to act creates an unreasonable risk of harm to another because of the person's failure to exercise slight care or diligence.

To find gross negligence the facts as you find them at the time the defendant acted or failed to act must be such that the consequences of the defendant's conduct could reasonably have been foreseen. It must appear that the injury was not the result of inattention, mistaken judgment or the failure to exercise ordinary or reasonable care. Rather it must appear that the injury was the natural and probable result of the failure to exercise slight care or diligence.

In support of her internal appeal of OPD's initial denial of SLI benefits, Verwilt described the accident as follows:

I was in the left lane, heading South, going about 60 mph. It was raining hard and the road was wet. I don't know what the temperature was, but it was cold. The road was sloped to the right and slightly curved to the right when the car jumped the lip of the road, and went down the slope onto the grass median.

I don't know whether I hit an ice patch, whether the car hydroplaned or if I hit a slick spot or something in the road that knocked me out of the lane. I tried not to slam on the brakes just in case I was hydroplaning. I remember seeing my hands on the wheel and trying to turn the wheel to avoid the overpass column I was heading towards. I was unable to turn the wheel despite pulling on it with all my might.

The median was grass and the car lost traction. The car was skidding forward.

Given our standard of review, we cannot say that the Commission's decision was arbitrary, capricious, or unreasonable or that it lacked fair support in the record.*fn1 Even assuming Verwilt was driving at the speed limit, the Commission could reasonably conclude that she failed "to exercise slight care or diligence" by driving at that speed on an unfamiliar road that was cold and wet, and sloped and curved to the right. That her car could "hit an ice patch," "hydroplane[]," or "hit a slick spot or something in the road" could "reasonably have been foreseen." Consequently, we affirm the Commission's determination.

Affirmed.


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