D.C. Still Wondering How to Handle Workers’ Comp Cases Decided by Disbarred Judge
Reacting to complaints from injured workers, a judicial review board at the D.C. Department of Employment Services in April ordered new hearings in six cases decided by an administrative law judge who practiced for 16 years without a bar license.
But when workers already before the D.C. Court of Appeals challenged decisions by that same judge, DOES recommended not having new hearings. So now the court has ordered the review board to provide "a clearer exposition” of its change of heart.
The trouble stems from revelations that surfaced in December, reported by Washington City Paper in February, that former Administrative Law Judge Anand K. Verma was disbarred in Indiana in 1998 for making false statements on bar applications in Maryland and Pennsylvania, yet continued to rule on hundreds of workers' compensation cases at DOES for the next 16 years even though he no longer was licensed to practice law—anywhere.
Even before the Verma implosion, the department's Administrative Hearings Division, the panel that rules on millions of dollars in long-term health benefits and compensation claims, was suffering from inconsistent leadership, a backlog of cases, and high reversal rates. (DOES recently brought in a new chief judge, a former general counsel to the Washington Metropolitan Area Transit Authority, to reform the panel. Two administrative judges have left since then. It's unclear whether they have been replaced.)
D.C. municipal regulations require that workers’ comp judges be licensed in the District or some other jurisdiction in the United States. But in December, after one of Verma's colleagues learned of his 1998 disbarment and brought it to the attention of DOES officials, Verma stepped down, leaving 16 years of allegedly tainted rulings behind.
After the City Paper report in February, the chief judge of the Compensation Review Board, which reviews the AHD's compensation orders, vacated the six Verma rulings at the risk of opening a Pandora's box of appeals. "Because there may be a legal problem with the December 16, 2013 Order issued by Anand K. Verma," wrote Administrative Appeals Judge Lawrence D. Tarr in April, "that order is vacated and this case is remanded to the [AHD] for further consideration."
Two other cases were already before the Court of Appeals for reasons that had nothing to do with Verma's lack of a bar license, however. And they show the District—along with employers and insurers—trying to close that box by recommending that the CRB make a new, across-the-board determination about whether such a defect is grounds for appeals.
Phyllis Sinclair was a registered nurse at Howard University Hospital who suffered a back injury while on the job in 2004. In 2010, DOES records show, a shooting pain in her back caused her knee to buckle, and as she fell to the ground, she injured her wrist. In 2011, after she allegedly failed to cooperate in a search for a job suited to her condition, the university cut off her disability and medical care benefits. Verma sided with the university and on April 23, the CRB affirmed his ruling.
Six days later, though, Tarr began vacating other Verma orders that more recently had sailed through the CRB, opening a new line of attack for the pre-existing appeals. A flurry of court filings ensued.
Based on Tarr's piecemeal orders, Sinclair's lawyers asked the Court of Appeals on May 14 to void Verma's ruling because he failed to meet the District's qualifications as a judge when he decided the case—regardless of any other facts or interpretations of law involved in the dispute. "It is impossible to review or appeal an [order] which, in and of itself is a legal nullity," Sinclair's lawyers wrote.
On May 30, Howard's lawyers labeled Verma's tainted bar status as "rumor" and claimed a lack of evidence that he wasn't qualified to be an administrative judge. And even if he wasn't, the university's lawyers argued, he'd made hundreds of decisions over the years while acting within the scope of his authority at DOES. "If this court should rule that the decision in this case was void [from the outset] because Verma was not qualified, all of those hundreds of decisions would be void," they wrote. "To revisit all of those cases … would be unfair to the parties involved."
Howard's lawyers asked the D.C. Attorney General's office to weigh in, warning that if the court voids the Verma decision, "[DOES] will be inundated with literally hundreds of cases that will need to be re-tried from the  years Verma was an ALJ."
Workers' comp veterans doubt that records reaching that far back even exist. Yet DOES promptly urged CRB review of Verma's qualifications and "the consequences of the violation of the regulation in the first instance." The District's lawyers also recommended that the Court of Appeals "defer to [DOES] on the interpretation of its own regulations."
In another case where Verma's qualifications have come up in the appeals process, Viviana Sandoval injured both of her upper arms in a car accident in 2011. In 2012, Verma limited her claim for permanent partial disability to 5 percent. The CRB affirmed the ruling in April 2013. In a May 28 response to Sandoval's appeal to the D.C. Court of Appeals, lawyers for the Hotel and Restaurant Employees International Union, which has more than 7,800 members, acknowledged that "many claimants, employers and insurance companies, DOES and the court" are contemplating how to deal with Verma decisions.
The union recognized that the outcome of the Sandoval case will affect future appeals, and even conceded that Verma acted beyond the scope of his powers: "Considering the allegations stacked against Verma, there can be no denying that much."
But the union nevertheless urged the court to defer to the CRB on whether there was substantial evidence to support Verma's decisions, arguing that "bar status doesn't taint the result," particularly in Sandoval’s case, because the CRB itself affirmed Verma’s ruling. “His decision may have been beyond his power, but it was not beyond the evidence," they argued.
Sandoval's attorneys filed court papers arguing that no one but a properly licensed hearing-level judge is authorized to rule on the facts of the case, so it doesn't matter that the CRB thinks his rulings were correct.
On June 6, DOES asked the Court of Appeals to send Sandoval's case back to the CRB to determine whether Verma's decisions could be appealed "in the first instance"—a determination that could be used to rule on future appeals of Verma’s lack of bar license.
The Court of Appeals granted what it described as an "unusual" request on June 26, noting that DOES initially "requested that the court remand the case to the CRB with instructions that the CRB remand the matter to DOES’s Administrative Hearings Division for a new hearing before a different ALJ."
DOES even reiterated that position in a more recent filing, the court wrote, noting that Verma's "undisputed" lack of qualifications raises "a legitimate question about the validity of [his] rulings."
"It is our 'general practice,' however, to accept concessions by the government that affirmance is not appropriate," they wrote.
The Attorney General's office said only that it is sorting out the Verma cases "as they arise," and that the vacated Verma rulings "are in different procedural postures" than the Sandoval and Sinclair cases.
Lawyers who advocate for injured workers worry that the Verma situation will add delays to a system already full of them, according to Barbra Kavanaugh, executive director of the Employment Justice Center. "Injured workers rely on workers' comp benefits that often are their only lifeline," says Kavanaugh, noting that all parties are entitled to consistency no matter which way the current controversy goes.