GW appeals decision to compensate former employee as yearslong legal battle continues

Yonah Bromberg Gaber | Graphics Eidtor

Source: Department of Employment Services documents

The University is taking a 10-year worker’s compensation dispute to the D.C. Court of Appeals, objecting to an employment board decision mandating that GW pay an employee at least nine years worth of salary and benefits.

A decade ago Arion Jones, a former janitorial worker, filed application for review to the D.C. Department of Employment Services asking the University to pay disability benefits because of an injury he had sustained while at work. The review was the start of a protracted legal battle that has seen 11 decisions and orders changing if and how much Jones could earn in compensation, including two Compensation Review Board decisions and two orders from Administrative Law Judge Gregory Lambert within the past two years.

The review board confirmed previous decisions in late-March by ruling that the University must provide Jones, who is in his 60s, with at least nine years of compensation after he said he injured himself at work.

GW and the PMA Group, a worker’s compensation provider, filed the appeal against the Department of Employment Services April 11 to challenge the board’s decision. The University claims some of Jones’ injuries were not work related and as a result they’re not liable to pay him compensation.

On Oct. 15, 2006, Jones slipped on a floor that a co-worker had recently mopped and fell backward landing on his right hand, according to the original compensation order issued in February 2016.

Immediately after the injury, Jones said that he experienced pain in his right wrist, right knee, left shoulder, neck and back, according to the decision.

GW’s lawyers claimed that some of the medical treatment Jones received on his back, knee, shoulder and neck problems were not related to his work injury because the initial emergency room records only report pain in Jones’ right hand, according to the decision.

“Employer complains that the ALJ should have given greater weight to the absence of neck, arm, back and knee complaints in the medical reports than to Claimant’s testimony that he injured those parts and experienced symptoms immediately,” according to the March decision referring to Lambert.

But the board affirmed a second order from Lambert where he determined that those injuries were caused from the fall based on substantial evidence from medical records and Jones’ credibility, the decision states.

“When he was testifying about his back complaints, his voice cracked – I found this testimony particularly compelling,” Lambert said in his original order referring to a hearing Jones attended in October 2015.

The board decided in August 2016 that Lambert needed to write another order because the original did not clarify that the additional injuries were caused by the fall, that the disability has continued until the present and that Jones needed medical care.

Since then, Lambert issued another order in October 2016, and the board affirmed that order in March 2017, sparking the University’s appeal.

The case has dragged through the court system in part because the administrative judge, Anand Verma, who made the first ruling on the case in 2007, was disbarred for repeated dishonesty and the original decision – that Jones could not receive disability payments past November 2007 – was thrown out.

The University argued the case should not have received a rehearing.

University spokeswoman Maralee Csellar declined to comment, citing University policy not to comment on pending litigation.

Jones was not able to be reached for comment.

Medical history
Six days after Jones slipped and fell at work, he went to the GW Hospital emergency room where doctors determined his hand was not sprained, according to the board’s March decision. Nine days later, doctors in the emergency room found that the strength in his wrist had weakened, according to the decision.

The emergency physician at the hospital, unnamed in the documents, gave Jones permission to miss work for two days and he issued an off-work slip Nov. 5, 2006 until Nov. 9, 2006, the March decision states.

Since then, Jones has seen 17 doctors to treat his various injuries, according to Lambert’s order.

Rafael Lopez Steuart, an orthopedic surgeon, treated Jones and found his right knee had a torn meniscus, according to the decision. He did not return a request for comment.

On Nov. 8, 2006, Steuart provided Jones with written permission to miss work, which was renewed periodically and never rescinded for the following two years. Steuart recommended Jones undergo knee surgery, according to the decision.

The University provided Jones with disability payments between Oct. 1, 2006 and Nov. 26, 2006, according to Lambert’s original order.

Jones then went to a second orthopedic surgeon, Cohen, who did not treat Jones but confirmed that surgery for his knee was necessary, according to the decision. Cohen’s first name is not included in the documents.

The University requested another doctor evaluate Jones in December 2006, according to the decision. Robert Gordon, another doctor, said Jones had arthritic problems in his knee and suggested that his knee, back and neck problems were not related to the work injury, the decision states.

Jones underwent surgery to repair the right meniscus in his knee May 21, 2007, but blood accumulated following the surgery requiring additional treatment, according to the decision.

“Except for a brief, two-day return to work in early 2007, Claimant has not been employed since the date of the fall,” according to the board’s decision. “Employer has not offered to make work available to Claimant within his claimed limitations.”

Another doctor, identified as Callan in court documents, said Jones reached maximum medical improvement in 2007, according to the decision.

After Steuart moved away in 2008, Jones returned to the GW Hospital emergency room and was treated by a doctor referred to in the court documents as Gupta, who referred him to another doctor identified as Yu. Both Gupta and Yu’s first names are not included in the documents.

In 2014, Yu conducted an MRI of Jones’ spine and recommended he receive spinal surgery, which Jones declined because of his age and the issues that occurred with past surgeries, according to the decision. Yu recommended Jones avoid heavy lifting and said his neck, back and shoulder injuries were a result of the work injury, the decision states.

Yu never adjusted Jones’ off-work status but signed a letter advising against heavy lifting in July 2010.

Another doctor reached a similar conclusion after examining him in 2012, and another doctor claimed in 2013 that Jones’ only work-related injury, besides his wrist, was carpal tunnel syndrome, according to the decision.

Delay in decision
Neither the University nor Jones’ briefs have yet been filed with the D.C. Court of Appeals.

David Kapson, Jones’ attorney, said the appeals process is delaying Jones’ next steps to apply for permanent total disability, which is awarded if the employee cannot earn any wages in the same or other employment, according to D.C. law.

Jones was awarded temporary total disability, which would provide him with compensation for 500 weeks, Kapson said.

“If we get reversed on any of these issues, then Mr. Jones wouldn’t be entitled any other money benefits,” he said.

Kapson said if the other parties consider it, he would like to meet in the same room through a mediation process to discuss a possible solution.

“If contacted, I will suggest it’s a good idea to reach an amicable resolution because it’s been a long time,” he said.

John Glasfeld contributed reporting.

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