[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
FEDERAL WORKERS COMPENSATION PROGRAM: ARE INJURED FEDERAL WORKERS BEING
TREATED FAIRLY?
=======================================================================
HEARING
before the
SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,
INFORMATION, AND TECHNOLOGY
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 21, 2000
__________
Serial No. 106-268
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
U.S. GOVERNMENT PRINTING OFFICE
74-832 PDF WASHINGTON : 2001
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
HELEN CHENOWETH-HAGE, Idaho (Independent)
DAVID VITTER, Louisiana
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
James C. Wilson, Chief Counsel
Robert A. Briggs, Clerk
Phil Schiliro, Minority Staff Director
------
Subcommittee on Government Management, Information, and Technology
STEPHEN HORN, California, Chairman
JUDY BIGGERT, Illinois JIM TURNER, Texas
THOMAS M. DAVIS, Virginia PAUL E. KANJORSKI, Pennsylvania
GREG WALDEN, Oregon MAJOR R. OWENS, New York
DOUG OSE, California PATSY T. MINK, Hawaii
PAUL RYAN, Wisconsin CAROLYN B. MALONEY, New York
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
J. Russell George, Staff Director and Chief Counsel
Heather Bailey, Professional Staff Member
Bryan Sisk, Clerk
Trey Henderson, Minority Professional Staff Member
C O N T E N T S
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Page
Hearing held on September 21, 2000............................... 1
Statement of:
Dalton, Patricia, Acting Inspector General, Office of the
Inspector General, U.S. Department of Labor................ 60
Fox, Gregory A., American Federation of Government Employees
Office of Workers' Compensation Program representative..... 23
Hallmark, Shelby, Acting Director, Office of Workers'
Compensation Programs, Employment Standards Administration,
U.S. Department of Labor................................... 47
Sydnor, Reginald L., Federal Workers Compensation claimant... 7
Walsh, Michael J., Employees' Compensation Appeals Board,
U.S. Department of Labor................................... 30
Weiser, C.B., attorney, Weiser Law Offices, Marshall, TX..... 17
Letters, statements, etc., submitted for the record by:
Dalton, Patricia, Acting Inspector General, Office of the
Inspector General, U.S. Department of Labor, prepared
statement of............................................... 62
Fox, Gregory A., American Federation of Government Employees
Office of Workers' Compensation Program representative,
prepared statement of...................................... 25
Hallmark, Shelby, Acting Director, Office of Workers'
Compensation Programs, Employment Standards Administration,
U.S. Department of Labor, prepared statement of............ 50
Horn, Hon. Stephen, a Representative in Congress from the
State of California, prepared statement of................. 3
Sydnor, Reginald L., Federal Workers Compensation claimant,
prepared statement of...................................... 12
Turner, Hon. Jim, a Representative in Congress from the State
of Texas, prepared statement of............................ 5
Walsh, Michael J., Employees' Compensation Appeals Board,
U.S. Department of Labor, prepared statement of............ 33
Weiser, C.B., attorney, Weiser Law Offices, Marshall, TX,
prepared statement of...................................... 19
FEDERAL WORKERS COMPENSATION PROGRAM: ARE INJURED FEDERAL WORKERS BEING
TREATED FAIRLY?
----------
THURSDAY, SEPTEMBER 21, 2000
House of Representatives,
Subcommittee on Government Management, Information,
and Technology,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m. in
room 2247, Rayburn House Office Building, Hon. Stephen Horn
(chairman of the subcommittee) presiding.
Present: Representatives Horn and Turner.
Staff present: J. Russell George, staff director and chief
counsel; Heather Bailey, professional staff member; Bonnie
Heald, director of communications; Bryan Sisk, clerk; Elizabeth
Seong, staff assistant; George Fraser, intern; Trey Henderson,
minority counsel; and Jean Gosa, minority assistant clerk.
Mr. Horn. The Subcommittee on Government Management,
Information, and Technology will come to order.
Today, the subcommittee is continuing its examination of
the Office of Workers' Compensation Program administered by the
Department of Labor. This program was established to handle
workers' compensation claims in a non-adversarial manner for
civilian Federal employees. In 1998, however, this subcommittee
became concerned about the numerous complaints it was receiving
from Federal injured workers about management practices and
customer service at the Office of Workers' Compensation. These
concerns include claims of long delays in the adjudication of
disputed cases, lost case files and claims examiners who refuse
to respond to inquiries on pending cases.
Unfortunately, Federal compensation claimants, case workers
and attorneys are still contacting the subcommittee, saying
that problems addressed at previous subcommittee hearings have
not been fixed. Meanwhile, these injured employees go without
compensation for months, sometimes years, as OWCP attempts to
resolve their cases. Many of these workers say the delays have
caused them financial or professional difficulties and often
led to ruin.
In the next few weeks, the subcommittee will be asking the
General Accounting Office to conduct a study to further examine
the management customer service practices at the Office of
Workers' Compensation. It is imperative that Federal workers
injured on the job be fairly compensated for legitimate claims.
We will look closely at the General Accounting Office's
findings and recommendations for improving, exiling, or
reorganizing the program.
I encourage today's witnesses to present their thoughts on
how to improve this vital program for Federal employees. I
welcome each of you today and I look forward to your testimony.
The ranking gentleman, Mr. Turner from Texas, is right on the
spot. I yield to him for an opening statement.
[The prepared statement of Hon. Stephen Horn follows:]
[GRAPHIC] [TIFF OMITTED] T4832.052
Mr. Turner. Mr. Chairman, due to my tardiness, I'll just
file my statement for the record.
[The prepared statement of Hon. Jim Turner follows:]
[GRAPHIC] [TIFF OMITTED] T4832.001
[GRAPHIC] [TIFF OMITTED] T4832.002
Mr. Horn. No, take your time. It's a slow day, and
everybody has a cough, I find. Are you OK?
We're going to swear in all witnesses here, as we have done
before. So please stand and raise your right hands.
[Witnesses sworn.]
Mr. Horn. The clerk will note that all six witnesses and
the backup have taken the oath.
So we start with Reginald Sydnor, a Federal Workers'
Compensation claimant, formerly an attorney with the Equal
Employment Opportunity Commission. Mr. Sydnor.
STATEMENT OF REGINALD L. SYDNOR, FEDERAL WORKERS COMPENSATION
CLAIMANT
Mr. Sydnor. Mr. Chairman and distinguished members of the
subcommittee, I thank you for providing me the opportunity to
present the barriers I have encountered in the process of
filing a workers compensation claim with the Office of Workers'
Compensation Programs with the intent to provide a synopsis of
the Department of Labor Office of Workers' Compensation actions
for analysis to improve effectiveness and efficiency.
Upon my graduation from high school, I attended college on
an athletic scholarship and graduated with honors. In 1968, I
was drafted into the military and honorably discharged in 1970.
I received an academic scholarship to law school, from which I
graduated in 1973. I was in private practice as township
solicitor and administrator for the Law Enforcement
Administration, Drug Enforcement Administration Task Force,
before I became employed as a civil rights trial attorney with
the Equal Employment Opportunity Commission in September 1978.
I litigated civil rights cases in numerous Federal district
courts and traveled throughout New England, western
Pennsylvania, New Jersey, West Virginia and Georgia. In April
1982, I was promoted to a supervisory trial attorney. I became
responsible for the trial litigation of eight trial attorneys,
traveled extensively throughout the Federal district courts in
western Pennsylvania, West Virginia, New Jersey, Florida and
Georgia.
On July 14, 1992, during the performance of my supervisory
trial attorney duties, I lifted an unsuspecting heavy trial
file box and suffered a freak low back injury. I suffered
extensive pain from the injury, and despite painful efforts,
found it difficult to perform the physical demands of travel in
the performance of my supervisory trial attorney duties and
responsibilities.
I worked until August 21, 1992, when my treating physician,
a board certified orthopedist, directed that I cease working
until the back injury could be effectively treated. The DOL
OWCP agreed with my treating physician and placed me on Office
of Workers' Compensation Program benefits, effective August 21,
1992. I never returned to work for the EEOC after August 21,
1992.
It must be noted, from the time I commenced my employment
with the EEOC until August 21, 1992, my annual performance
ratings always ranged from fully successful to outstanding
performance. In fact, when I was the Acting Regional Attorney
for the Philadelphia District Office legal unit in 1989, my
legal unit received an EEOC Chairman Thomas outstanding
performance award.
It must also be noted that after August 21, 1992, I also
commenced receiving Office of Workers' Compensation claim-
related problems. Problem one, my employer's retaliation and
the Office of Workers' Compensation Programs' inaction.
Regarding EEOC employment, the Department of Labor approved my
Office of Workers' Compensation claim filed with the Department
of Labor for July 14, 1992 job accident, effective August 21,
1992.
Without any governmental business reason or logical
explanation, the Philadelphia district office director
personally decided not to cooperate with the Department of
Labor in the processing of my Office of Workers' Compensation
claim. At first, the Philadelphia district director insisted
that the Department of Labor cancel my Office of Workers'
Compensation claim. When the Department of Labor refused to do
so, the EEOC office director refused to complete the standard
Department of Labor Form CA-2, and the granting of my
continuation of pay, despite repeated requests by the
Department of Labor to do so.
The Philadelphia office director boldly refused to
cooperate with the Department of Labor regarding my Office of
Workers' Compensation claim. On December 18, 1992, the
Philadelphia EEOC office continued disregarding my CA-2 form,
ignored my continuation of pay and denied my request for leave
without pay, placing me on AWOL.
Unexpectedly, on December 20, 1992, long after the rating
period had closed, the Philadelphia EEOC office sent me an
unacceptable performance rating for my yearly performance
evaluation. This was the first time since I commenced my
employment with the EEOC that I received a performance rating
of less than highly effective. The Philadelphia EEOC office
unsuccessfully tried to convince the Department of Labor Office
of Workers' Compensation Program that this is the reason why my
Office of Workers' Compensation claim should be canceled.
On August 13, 1993, the Philadelphia EEOC office terminated
me from my supervisory trial attorney position for failure to
perform his duties and responsibilities due to his disability.
Despite the Department of Labor's standard request, no light
duty or accommodation of my disability was ever offered to me
by the EEOC prior to the Philadelphia EEOC district office
terminating me due to my Office of Workers' Compensation
disability.
In September 1993, I appealed all the EEOC continued
administrative patterns of unexplainable adverse personnel
actions against me to the Merit Systems Protection Board. Said
appeal was based upon EEOC retaliation against me for filing a
Department of Labor Office of Workers' Compensation claim.
In November 1993, prior to my Merit Systems Protection
Board hearing, when all appealed EEOC adverse personnel actions
and EEOC initiated settlement agreement with me to resolve all
appealed matters. The EEOC convinced me to enter into an MSPB
settlement agreement in return for my withdrawal of my MSPB
appeal. The EEOC agreed to withdraw the Philadelphia district
office 1992 unacceptable performance evaluation from my
official personnel file.
Furthermore, the EEOC specifically agreed that neither the
Philadelphia office director nor two named administrative staff
members would be permitted to disclose to any future employers
any employment information related to my employment with the
Philadelphia district office.
The EEOC agreed to be held liable as an agency if either
the Philadelphia district director or his two administrative
staff members breached any condition of the MSPB settlement
agreement. Also, as a further incentive for me to sign the MSPB
agreement, on the MSPB record, the EEOC agreed to pay me my
continuation of pay as repeatedly directed by the Office of
Workers' Compensation program and intentionally denied by the
EEOC. The EEOC required the Philadelphia district director to
sign the MSPB agreement as a gesture of EEOC sincerity.
I later discovered that after he signed the MSPB agreement,
the Philadelphia district officer director initiated an EEOC
internal investigation against me for criminal misconduct. The
EEOC dismissed all matters alleged by the district director as
unsubstantiated.
Furthermore, as an effort to put pressure on the Department
of Labor Office of Workers' Compensation program to cancel my
claim, the EEOC continued to refuse to process Office of
Workers' Compensation Program Form CA-2, which allowed me to
get paid by Office of Workers' Compensation benefits on a
periodic basis. Despite my repeated complaints to the Office of
Workers' Compensation Program, months at a time went by without
any Office of Workers' Compensation benefit payment.
From August 31, 1992 to September 22, 1994, when the Office
of Workers' Compensation terminated my Office of Workers'
Compensation payment benefits, I received a total of two Office
of Workers' Compensation lump sum payments for over a 2-year
period.
The second problem I encountered was the Office of Workers'
Compensation apathetic second opinions and referee exam
conclusions, as well as the Office of Workers' Compensation
extraordinary time delay in making decisions. Medically, in
addition to my July 14, 1992 low back injury, I also suffered
from a sudden blood illness diagnosed in September 1992. The
file contains a report dated July 13, 1993, sent to Toby
Rubenstein of the Office of Workers' Compensation program by my
doctor, Dr. Swensen, professor of medicine, section of
infectious diseases at Temple University School of Medicine.
Dr. Swensen related the etiology of my illness and concluded
that the illness may well have been brought on or related to
Feldene and muscle relaxants I was prescribed for my back.
I was given a CT scan dated September 9, 1992, as a result
of the blood illness. The CT scan was prescribed by my
infectious disease doctor to scan my abdominal and pelvic areas
for liver damage. The results of the CT scan were normal.
The mentioning of my blood illness is relevant in my case
for two reasons. First, it became part of the DOL Office of
Workers' Compensation Program medical record. In this case,
because the EEOC tried to use my blood illness as a reason for
the Department of Labor to cancel my job related low back
injury Office of Workers' Compensation Program claim. Second,
and more importantly, both the Office of Workers' Compensation
Program's referees used the September 19, 1992 normal liver
scan to support their medical report conclusions that there is
no objective evidence of my low back injury.
Concerning my July 14, 1992 low back injury, after July 21,
1992, I continued treatment under my treating orthopedic
physician. My treating physician referred me to a board
certified physiatrist who conducted EMG and NCV studies on
August 31, 1992, which showed abnormal findings. My treating
physician also referred me to a board certified neurologist on
November 10, 1992, who found neurological abnormalities
consistent with my subjective complaints. A CT scan of the
cervical and lumbar spine was conducted on January 23, 1993,
which revealed evidence of abnormalities in the lumbar region,
including generalized bulging of the disks at all levels from
L-3 to S-1.
Compared to a pre-job injury February 9, 1991 MRI scan, no
evidence of lumbar abnormalities existed before the July 14,
1992 Office of Workers' Compensation claim. In March 1993, my
treating physician referred me to an anesthesiologist and pain
management specialist, who confirmed all previous findings and
suggested a course of treatment. In May 1993, my treating
physician requested authorization from the Office of Workers'
Compensation to conduct CT scans to be followed by a second
one. The Office of Workers' Compensation rejected the
recommendation of my treating physician and scheduled me for a
second opinion.
From May 1993 until September 22, 1994, when my claim was
rejected by the Office of Workers' Compensation Program, the
Office of Workers' Compensation Program refused to authorize
any further diagnostic testing. The Office of Workers'
Compensation Program second opinion was rendered 9 months after
my treating physician concluded, after a cursory examination,
that the abnormal lumbar findings were congenial and
conservative treatment of physical therapy should be favored
over the discectomy. My treating physician disagreed with the
Office of Workers' Compensation Program second opinion, and the
Office of Workers' Compensation Program requested a referee
exam regarding the issue of discogram.
Since May 1993, my treating physician expressed his
frustration with the Office of Workers' Compensation Program in
that a course of treatment he was recommending was being held
up and he could not even undertake further diagnostic testing.
In June 1994, my treating physician requested a new EMG, NCV
and MRI studies be done. The Office of Workers' Compensation
Program advised him they would not pay for these tests.
In July 1994, the Office of Workers' Compensation Program
scheduled me for a referee exam to resolve the conflict of the
medical opinion in August 1994. The Office of Workers'
Compensation Program referee exam was a 5-minute physical
examination. He issued a report concluding no need for surgery,
my back injury was not job related, there is no objective
evidence of a back injury based primarily on the September 9,
1992 liver CT scan. Finally, the report concluded I was not
disabled and should return immediately to my EEOC supervisory
trial attorney job, a job the EEOC terminated me from over a
year prior, due to the disability.
Based upon the referee report conclusion, the Office of
Workers' Compensation Program terminated all my Office of
Workers' Compensation Program benefits effective September 22,
1994. The Office of Workers' Compensation Program claim
representative affirmed the Office of Workers' Compensation
Program decision, but modified the OWCP decision to allow
medical treatment associated with the July 14, 1992 injury.
I appealed the OWCP decision to the Federal Employees
Compensation Appeal Board. The ECAB rendered an opinion years
later which basically confirmed the Office of Workers'
Compensation Program decision, but remanded the case on the
issue of cause of the injury and the question of disability.
In May 1999, the Office of Workers' Compensation again
referred the case for a second referee exam. Although the
referee admitted he did not examine me in August 1994, again,
the referee concluded I was not disabled in August 1994, he
concluded the injury was related to the July 14, 1992 accident
based on the medical records. However, again, the referee's
report cited the September 9, 1992 CT normal liver scan as a
source for concluding no objective findings of the back injury.
The Office of Workers' Compensation Program adopted the
referee's conclusion and this time concluded any medical
treatment should also be terminated. The Office of Workers'
Compensation Program claim representative confirmed the OWCP
conclusion.
The case is again on appeal to the ECAB for review almost 6
years to date from the initial Office of Workers' Compensation
Program termination of my Office of Workers' Compensation
Program benefits.
In conclusion, I believe the underlying decision to
terminate my Office of Workers' Compensation claim by the
Department of Labor is because of the pressure put on the
Department of Labor Office of Workers' Compensation to cancel
the claim by the EEOC. It was a lot easier for the Department
of Labor Office of Workers' Compensation Program to terminate
the claim rather than deal with the lack of cooperation and
defiance by the EEOC.
The Department of Labor Office of Workers' Compensation has
sat by while the EEOC has destroyed my character and ruined my
reputation for filing a legitimate Office of Workers'
Compensation claim. Furthermore, my back injury continues to
deteriorate, and I have developed severe depression from the
results of filing an Office of Workers' Compensation claim 6
years ago, and the Office of Workers' Compensation Program's
inaction and delay.
I would again like to personally thank you, Mr. Chairman,
and distinguished members of the subcommittee, for allowing me
to participate in this hearing with the intent to improve
Government operations. Documentation to substantiate my
statement is available upon request.
[The prepared statement of Mr. Sydnor follows:]
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[GRAPHIC] [TIFF OMITTED] T4832.007
Mr. Horn. Thank you very much for laying out that record.
Let me say to all the witnesses that your statements
automatically go in the record, all of them. So what we'd like
you to do is to summarize your statements. We have a vote
coming on the floor at 11:30 a.m., and unless we need to take
you all over into late in the afternoon, you're going to need
to summarize your testimony and not read it.
So we have every one of these papers working in the hearing
report that we will send to the full committee and the floor of
the House of Representatives.
So let us now start with C.B. Weiser, the attorney at law
from Marshall, TX. Mr. Weiser, we welcome you here today.
STATEMENT OF C.B. WEISER, ATTORNEY, WEISER LAW OFFICES,
MARSHALL, TX
Mr. Weiser. Thank you, Mr. Chairman, distinguished members.
My name is Clete Weiser, I'm an attorney from Marshall, TX.
I have represented clients before the OWCP since 1992.
I'd like to highlight perhaps two to three areas where I
think there are problems. The first is the Employee
Compensation Appeals Board [ECAB], the final appeal process.
I've highlighted some cases, but I will address one. And that
is a Mr. Dan Gregg, a former postmaster out of Iowa.
Mr. Gregg had his claims denied by the OWCP out of Chicago,
IL. He appealed it finally to the Employee Compensation Appeals
Board. They will take 24 months to render a decision. I can
tell you, Mr. Chairman and distinguished members, that when I
started in 1992, it was 18 months. By 1994, it was 20 months to
get a decision. By 1996, 1997 and to the present, it's 24
months. If that's a timely decision, I'd like to know.
But in Mr. Gregg's case, they waited 23 months. On the 23rd
month or thereabout, they remanded the case back to the
district office in Chicago. And the reason given is the
district office never provided them the OWCP file. It was
remanded back, we were given no opportunity for input to the
decision. I knew what the decision would be, it would be
another denial, which it was.
It was then appealed back to ECAB and we got the standard
response, you'll have another 24 months. This gentleman, Mr.
Gregg, has been waiting, he will wait 2 years to get a
decision, unconscionable in my view.
But more important, if the district office failed to give
the file, in my view, that should have been determined in the
first 30, 60, 90 days when the appeal went in, not wait 24
months and then remand it back. His is not one case, there are
more.
The other area I'd like to talk about briefly is the area
of the OWCP offices, especially Jacksonville, FL. I have here
today Mr. Bobby Kunkel, former station manager, supervisor with
the Postal Service. It took 18 months to get a decision in his
favor.
What happened? We took the initial claim to OWCP in
Jacksonville. It was supported by documentary evidence, it was
supported by witness statements, clearly, clearly a case that
should have been decided at the district office. What did the
district office do? They not only denied the claim, saying
there's no evidence to support it, but in addition, they added
two alleged work factors that Mr. Kunkel had never said
occurred, work factors that you could never get approved, such
as a disciplinary action, unless you show abuse or error. He
never claimed that.
Yet they added those. Why? Because the agency gave it to
them.
We took it on appeal to the Branch of Hearings and Review,
and to be fair, to the process, the Branch of Hearings and
Review did a fair hearing. They looked at the exact same
evidence that we had presented to the OWCP office in
Jacksonville. No new evidence, other than two witnesses who
testified.
The Branch of Hearings and Review reversed. But it took Mr.
Kunkel 18 months to get that decision. He suffered economic
loss and he suffered additional depression, which is what he
had. It is clearly a case that should never, never have gone
outside the Jacksonville office.
The third case I'd like to at least address comes out of
the Dallas office. It involves Mr. Bill Oates, a former
employee of the Pine Bluff Arsenal, Department of Army. Mr.
Oates suffered an on-the-job injury, he fell from a ladder. He
suffered shoulder, neck, and head injuries. Yes, his claim was
approved. However, within 6 or 7 years of that, it went to a
referee examiner who saw him for 20 minutes. Did not examine
him, according to Mr. Oates, found that he was completely, had
no residuals, he was completely over the problem, it was
denied. We took it all the way to the Branch of Hearings and
Review. They denied.
But what they said was, you're making three or four claims
with regard to additional injuries, which would be
consequential injuries. These are injuries that would flow from
the original injury that was accepted.
In November of last year, we filed a consequential claim
injury. We never got a decision. We went through Congressman
Dickey of Arkansas, who is the representative of Mr. Oates. He
attempted to get one. We just got in last week an alleged
letter that was sent to me by Mr. Martin Walker, the district
director, unsigned, that said, this is the decision. We never
got it.
Now we're going to have to take an appeal to ECAB, 24
months, and who knows where we come.
My time is up, I will be happy to take any questions the
chairman or distinguished committee members may ask. Thank you.
[The prepared statement of Mr. Weiser follows:]
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Mr. Horn. We will definitely have questions. So stay with
us.
We now have Mr. Greg Fox, a representative from the
American Federation of Government Employees for OWCP claimants.
Go ahead, Mr. Fox.
STATEMENT OF GREGORY A. FOX, AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES OFFICE OF WORKERS' COMPENSATION PROGRAM
REPRESENTATIVE
Mr. Fox. Thank you, Mr. Chairman and distinguished members.
In the beginning, the Office of Workers' Compensation was
originally designed to be a non-adversarial entity.
Unfortunately, over the years, particularly since 1994, totally
the opposite has occurred. It is very adversarial, as you have
already heard.
The claimants, from the time of injury, the agencies label
them as crooks, thieves, and too lazy to work. This is a very
common practice at the agency level. Nothing, sir, could be
farther from the truth. These are hard working, well tenured
employees that simply want to come to work and do their job.
Why? Initially, it's because of over-zealous agency
supervisors, compensation specialists, and human resources
personnel. If the claimant has committed a crime, it is simply
that they have hired on with the Federal Government.
Claimants go through, and as I represent them, I see these
things, on a fairly regular basis, claimants go without pay,
they have unpaid medical bills, and as a result, they have
agencies chasing them to get these bills paid. Fairly difficult
to do when you're not even getting paid.
They are forced to file bankruptcy and experience
foreclosures of their homes. Utilities, water, gas,
electricity, telephones are cutoff. The divorce rate for
claimants is skyrocketing as a result of this. Chronic pain and
depression has led to attempted suicides. And sadly, some of
those attempts have been successful.
Imagine for a moment what the claimant's family is going
through, as well as the claimant. The Department repeatedly
sends claimants to physician after physician. This is a
physician that the Department chooses, not the claimant, and it
is not the claimant's primary care provider.
The Department knows that this will contradict the
claimant's primary care provider's reports, better known as the
wink-wink, nod-nod effect. This action is for the most part a
result of the agency compensation specialist hounding the
claims examiners to find a reason to deny any compensation.
Generally if the claims examiner is resistant to the pressure
of the agency, the compensation specialist will simply call the
Department director, who will ``fix'' the problem. This results
in the claims examiner being overruled.
Agency compensation specialists brag about claims examiners
being repeatedly called and claiming that they are approving
too many claims. At this point, we simply forget about the
merits of the claim, it does not apply. Simply, they could care
less about the claimant and the negative effect that it has on
the claimant and their families. And believe me, there is a
significant effect. I believe you're hearing testimony to that
fact today from other people.
Imagine that you've been hurt. It doesn't stop there. You
can't pick up your children. You can't mow your yard. You
cannot participate in activities you were able to do prior to
the injury. There is no compensation for this.
As a clinician, I can tell you that it is nearly impossible
for a back injury, upper extremity injury or a soft tissue
injury to heal with this kind of unimaginable stress. We need
to keep in mind that this process was supposed to be, in
effect, to protect the employees. That is not the case, sir.
I suspect, from the claims examiners' perspective,
certainly from talking with them and observing them over the
years, that for the most part, they want to do a good job.
However, the agencies do literally hound them. As a result,
they have got to give in somewhere. They get pressure from the
agencies, they get pressure from their own management.
In addition, the agencies do not respect the claims
examiners. This is very clear.
When you couple this with the fact that the agencies are
regularly hounding the Department, something's got to give. The
only result under these circumstances, sir, is the claimant is
harmed.
I suspect strongly as well that if these claims were
adjudicated properly at the Department of Labor level that the
hearings and review and the Employees Compensation Appeals
Board would certainly have less workload. This would shorten
the 2 to 3 year period waiting for ECAB decisions.
There are a great many other issues to be addressed.
However, I can see that time is very short. So I will stop
here, with the exception that all injured employees have the
right to due process. This doesn't happen.
[The prepared statement of Mr. Fox follows:]
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Mr. Horn. Well, we appreciate that testimony, and we'll
continue with all the three witnesses so far in a Q&A round,
when we finish all of the presentations.
Next is Michael Walsh, chairman of the Employee
Compensation Appeals Board, U.S. Department of Labor. Mr.
Walsh.
STATEMENT OF MICHAEL J. WALSH, EMPLOYEES' COMPENSATION APPEALS
BOARD, U.S. DEPARTMENT OF LABOR
Mr. Walsh. Thank you very much, Mr. Chairman.
The agency I represent is 54 years old this year. I've been
with the agency for 15 years, both with Republican
administrations and Democratic administrations. Our role is to
give independent review of decisions of OWCP, to make sure that
our best efforts ensure competent and fair decisionmaking. We
try to provide the same level field a court would provide. We
do that by having four specialists look at every case.
And the principles that we are bound by are the same
principles that all adjudicatory agencies are bound by, and
that is, no ex parte contacts with claimants or the OWCP. And I
can say in my years that the Secretary of Labor has never tried
to intervene in any case we've had, nor has any agency ever
tried to influence our cases, except by filing briefs or by
oral argument.
A quick background I think is necessary. In 1908, the first
comp law came into effect. It didn't cover all Federal workers,
only those in hazardous situations. In 1916, the first act came
into being, covering all Federal employees. No review of
decision.
In 1948, the Federal Security Agency was created by
Congress and developed two entities: the Bureau of Employees
Compensation, and our board, the Employees' Compensation
Appeals Board. For the first time, there was review of
decisions, appellate review of decisions of workers
compensation.
In 1950, the Department of Labor was given the assignment
of handling workers compensation for the Federal Government,
divided into two entities, OWCP and the Employees' Compensation
Appeals Board. OWCP is an agency separate from us. They're
under the Employment Standards Administration. ECAB is under
the Office of the Secretary.
OWCP does something different than we do. They administer a
program involving 3,225,000 employees, including the 875,000
postal employees. Their job is to administrate for all those
people, and their second job is to do initial adjudication. Our
job is to do appellate review of adverse decisions received
from the Office of Workers' Compensation.
ECAB's review is a de novo review. That is, we look at the
case afresh as if we have the merits of the claim. We do not
receive new evidence. Cases are decided on the record before us
or on oral argument. If a majority of a panel assigned to the
case finds that the Office is correct, it's affirmed. If not,
it's reversed or remanded.
Jurisdiction in our case depends on this: if an appeal is
filed in 1 year of a merit review by the Office, we have de
novo jurisdiction. That is, we can look at both the law and the
facts. If a decision is outside a year of the Office of Merit
Review, we look at what we call abuse of discretion, and we're
looking at three criteria: has there been an error on the part
of the Office in the application or interpretation of law; has
the claimant advanced a point of law or a point not previously
considered; is there new or relevant evidence.
In this case, we're not looking at the merits, we're simply
looking to see whether any one of those criteria were abused.
If they have been, we will send the case back for a merit
review in the office.
We handle oral arguments, 120 are scheduled per year. We
hear about 70 in panels of three. About 50 are reset or
rescheduled. At those oral hearings, they're held in
Washington, DC, at those oral hearings, the claimant is
normally represented by an attorney, a union representative, or
pro se, by themselves. The Office is represented by the
Solicitor's office. Those arguments usually last about an hour.
Now, we have an non-adversarial system, as has been stated
here. That is to be differentiated in the State system, where
you have something similar to what we have, you have an
administrative process, you have appeals boards, all
administrative. And then the claimant can go into the courts,
and he can go up to the lowest court in the State, up to the
intermediate appellate court or up to the supreme court.
But the difference is this: the employers in State courts
can fight the claim all the way up to the supreme court of any
State. The other distinction is, many of the courts will just
look at the law and not the facts. That can take a long time to
go through court system.
Under the non-adversarial system, which was designed by
Congress, the agencies are not a party to the action. The
agency cannot appeal an OWCP decision, the agency cannot appeal
to us. What the agency can do is controvert the claim, and they
do that by investigation. But they're not a party to the
action. That's why the courts, all of them, the appellate
courts, the Supreme Court, have called this a model preclusion
statute. And they've said that because Congress has been so
clear in what can be reviewed. They say that our decisions
cannot be reviewed except for a Constitutional violation.
I'll have to stop now, but I would like to add one other
thing. And this is how we decide cases. A case is received from
OWCP, it's assigned to an attorney advisor. A preliminary draft
is made, and then the case is assigned to a panel of three
board members. Each one of those board members independently
examine the claim. After that has been done, there's a
conference on each case that comes to us. If all members agree,
the case goes out in that fashion. If there's a requirement for
dissent, there is one, or a concurrence, and the case is
recirculated, just like any other appellate agency. And
thereafter, the case is sent out.
Now, approximately 25 percent of the cases that we see are
sent back to OWCP on remand basis or reversal.
I'll stop there, I'll be pleased to answer any questions. I
would like to point out one thing, though, Mr. Chairman, this.
We start fiscal year 2001 with 3,600 cases. And that's down
from a topload of 5,570 cases which we reached in May 1997.
Last year was our highest production rate, 3,332 cases, all
written. This year, our goal is 3,450 cases, but it will turn
out to be 3,700 cases. That's an 8 percent increase over our
goal, and a 21 percent increase on the pending caseload. We
have decreased the caseload 900 cases this year. We are
currently at about 16 to 18 months, and cases I'm now assigning
are about 12 to 14 months. So I think we've had a dramatic
downturn in our pending caseload.
I'll be pleased to answer any questions that the panel has.
[The prepared statement of Mr. Walsh follows:]
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Mr. Horn. Thank you, Chairman Walsh. We will be getting
back to you on the Q&A.
Shelby Hallmark is the Acting Director of the Office of
Workers' Compensation Programs, U.S. Department of Labor. Mr.
Hallmark.
STATEMENT OF SHELBY HALLMARK, ACTING DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS, EMPLOYMENT STANDARDS
ADMINISTRATION, U.S. DEPARTMENT OF LABOR
Mr. Hallmark. Thank you, Mr. Chairman and Ranking Member
Turner. It's always a pleasure to appear to discuss the FECA
program.
As you've heard today and in previous hearings, this is a
very serious program and one that OWCP takes extremely
seriously in our responsibility for assisting our fellow
injured workers. And it's an honor for me to be here to
represent the just over 900 men and women who do this work and
work extremely hard every day trying to do the best they can.
OWCP, as I've described before, and as in my written
testimony, has a very, I think, strong record of trying to
improve its performance. We have an ambitious strategic plan
which we are continuing to pursue very diligently. And we have
made substantial strides. We have increased our ability to help
people get back to work by tenfold over the last 10 years.
We're now getting 7,500 people helped back to work every year
by OWCP.
We are in the process, as I said, of implementing a very
strong GPRA plan, and we're meeting those goals. We're now
helping agencies increase their timeliness in submitting claims
to us, so that we can get started on the process that you've
heard about this morning. And we are working with OSHA to lead
the Federal Worker 2000 initiative that was recently announced
as a Government-wide safety and health goal.
Despite all of that, those accomplishments are made at the
same time that we're addressing what is a very large,
unrelenting and ever more complex work load. And some of the
experiences that you've heard from the panel members today
result from the fact that this is a very difficult job for our
claims examiners on a day to day basis.
We're trying to help our examiners. We have some major
computer improvement initiatives which we believe over the next
2 years will in fact help us tremendously in that regard. We're
moving to an electronic imaging case processing system now.
We're leading an agency effort to create an electronic data
interchange process, so that claims can come to us
electronically in the first place, and thereby speed them as
well. And there are a whole raft of other improvements that we
have been working on, and that are noted in my testimony.
We realize that all of those efforts are not complete, that
the transformation we want to achieve to make this a service
oriented, customer focused organization still has a way to go,
and we are especially concerned that our ability to communicate
with injured workers and to show them and explain to them what
in fact is going on in their case is not what it should be.
Nevertheless, our staff work every day with the tools that they
have to try to accomplish the goals of the program, and I think
they do a good job.
I've noted in my testimony some issues that we specifically
have addressed, following up on previous hearings, and I would
point the committee members to that. I won't go into it now,
but I will say that communications is a particularly serious
concern of ours. We don't believe we have the resources that we
need to accomplish what our customers rightfully should expect
from us in the way of access, and our 2001 budget request
addresses that, and we hope that may still be favorably
received by Congress.
One of the major focuses today is on our adjudicatory
process. We believe that while the FECA process is unique, it
is well tailored to the system that Mr. Walsh just described,
of a non-adversarial process. OWCP does take seriously its
responsibility to be a neutral arbiter. We do not carry the
water, if you will, of the agencies. Although we obviously have
to work closely with them if we're going to accomplish this
program. And we try to be fair to claimants and to provide
benefits to those who are entitled, and in some cases we have
to find that's not the case. But we believe that we do a
quality job at the front end in making initial determinations.
The vast majority of such cases are approved, as they always
have been.
We have improved our timeliness in that regard so that
people do not have to wait excessively, particularly in
occupational disease cases, which are complicated. In the last
4 years, we've reduced the average time there from 97 days to
receive a decision to 75 days.
There always are going to be outliers, where there are
complex issues. But they are few and we monitor those. As I
said, we approve roughly 90 percent of all incoming cases. And
then there is, as Mr. Walsh started to explain, a complex and
extensive appeals process which includes reconsideration at the
district office, which includes all hearings at our Branch of
Hearings and Review, which you heard something about this
morning, and which includes the final review at ECAB, in
addition to constitutional challenges in district court.
We think those processes work, we think the results that
come out of them indicate that they are objective. And they
parallel the kinds of outcomes that occur in State workers'
compensation systems.
I'd like to just highlight if I can a couple of things that
we've done to make improvements in that process. Branch of
Hearings and Review, during the past 3 years, reduced the time
it takes for us to remand cases where we find upon their
receipt that a hearing is not in order, that it should have
been resolved before. In 1998, that took 169 days. This year,
it's going to take an average of 88 days. We're very proud of
that.
We also found that issuing final decisions after oral
hearings has needed to be improved because of the backlog,
similar to the concerns that Mr. Walsh mentioned. We've reduced
that timeframe from 361 days to 242 days on average this year.
And we're still working to make improvements on that. And we
are working with ECAB to address issues of coordination. We
have shared some of our technology with ECAB to ensure that we
hand cases off properly. Sometimes that doesn't work, and then
there are problems that we have, I think, addressed and
improved substantially in that regard.
Finally, we're trying to ensure that our decisions are
quality at the front end and that we do things right in the
first place. We have an extensive and I think successful
accountability review process that looks at how well we make
those front end decisions. We have a quality index which is one
of our GPRA goals, which is intended to measure how well we can
move forward in improving those initial determinations and
ensuring that the decision is right in the first place.
That goal has been one of our hardest to achieve. But we
are showing success in 2000.
We're a dynamic organization. We are always glad to hear
what people say about this issue, and we want to work with the
committee and with everyone else to try to improve it. Thank
you.
[The prepared statement of Mr. Hallmark follows:]
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Mr. Horn. Thank you.
And now the last presenter is Patricia Dalton, Acting
Inspector General, Office of the Inspector General, U.S.
Department of Labor.
STATEMENT OF PATRICIA DALTON, ACTING INSPECTOR GENERAL, OFFICE
OF THE INSPECTOR GENERAL, U.S. DEPARTMENT OF LABOR
Ms. Dalton. Thank you, Mr. Chairman and Representative
Turner, for inviting the Office of Inspector General to testify
on our work in the Federal Employees' Compensation Program.
I'm here today in my capacity as Acting Inspector General
to present the views of the Office of Inspector General, which
may not necessarily represent those of the Department of Labor.
Over the last few decades, the OIG has made it a priority
to effect positive changes and reduce vulnerabilities in the
FECA program. The OIG's audits, evaluations and investigations
have disclosed weaknesses that can lead to inefficiencies,
ineffectiveness, or loss of Federal funds.
Some of our efforts related to customer service, program
integrity, and due process issues, which I detail in my full
statement, include: a cross-match between FECA and Social
Security wage information that revealed potential claim and
fraud and overpayments; a review of 13 Inspector Generals which
we coordinated that found employing Federal agencies generally
needed to improve the management of their workers' compensation
program; a review of OWCP's customer service survey, which has
led to changes in the way OWCP handles the survey process; an
analysis of timeliness of claimant reimbursement of out of
pocket medical expenses and the authorization of surgical
requests; an audit of OWCP's financial statements, which noted
that FECA does not have policies and procedures in place to
ensure the documents are requested and received on a timely
basis; and an audit analyzing improper medical provider
billings, which revealed that millions of dollars are being
lost annually because of improper or abusive medical provider
billing.
I should note that OWCP has generally been very responsive
to any recommendations that my office made.
The subcommittee has also asked that we provide our views
regarding Federal Employee Compensation Act appeals process,
and ECAB specifically. Mr. Chairman, we believe that central to
the success of any compensation program is the need to ensure
that the appropriate amount of benefits be given to the
appropriate people for the appropriate timeframe. Complementary
to this is the need to ensure an effective, timely mechanism to
protect the due-process rights of individuals while protecting
the integrity of the program at the same time.
While our work has predominantly focused on customer
service and program integrity issues, we did briefly look at
this issue in 1995. The OIG issued a report which examined a
sample of 50 claims that had been appealed to ECAB. In that
report, the OIG recommended that ECAB and OWCP reevaluate the
current FECA claims and appeal adjudication processes to
develop an action plan, including legislative proposals, where
necessary, to better capture performance of cost information
and reduce the costs and adjudication times for these claims.
ECAB recently indicated that it had reduced its backlog and
the average time it takes to adjudicate a case had been reduced
from 24 to 16 months. However, we have not audited that
information at this time.
Mr. Chairman, even though OWCP is implementing measures to
increase the efficiency and effectiveness of the program, there
are still issues that need to be addressed. While some of these
are administrative in nature and can be resolved by OWCP, there
are other solutions that are legislative and budgetary in
nature. Among the legislative recommendations that we have made
over the years include changes in the continuation of pay
period, establishing a retirement age for beneficiaries, adding
a wage reporting requirement for totally disabled recipients,
and verifying employment information by the use of other data
bases, such as Social Security information.
In conclusion, Mr. Chairman, our work in FECA and ECAB has
served, I believe, to help the programs to be more effective
and to work more efficiently. As demonstrated by our findings
and recommendations, our efforts have focused on helping to
improve services provided to FECA claimants and in ensuring the
integrity of the program.
This concludes my oral statement. I would be happy to
answer any questions.
[The prepared statement of Ms. Dalton follows:]
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Mr. Horn. Well, thank you very much.
Let me just ask a general question first. We've got the
administration and representatives, even the Inspector General,
looking at the whole department. We've got the people that are
saying, hey, there's a problem here, what are you going to do
about it. I mean, do you gentlemen recognize, for example, Mr.
Walsh, Mr. Hallmark, that there is a problem?
We have 300 cases that have come to my office. And before I
send them to my subcommittee staff, I've looked at every single
one of them. Ms. Bailey, the professional staff member working
on this problem, then gets it. And believe me, she's read at
least 300 cases also.
So, do we admit in the executive branch that there are
problems here? And if so, is it an attitude problem? Now, some
usually say, ``oh, it's a resource problem, we don't have
enough people.'' You've got a lot of people. The question is,
what's their attitude? How do they function? What sort of
hierarchy do you have here within your program? What do you
think, Mr. Walsh?
Mr. Walsh. Well, I think timeliness, Mr. Chairman, is a
real consideration. And as I pointed out, you asked us a
question in 1998, you wanted to know about what was going on,
why we had the backlog in the first place. May I read you my
answer?
Mr. Horn. Yes, it was in your testimony, but go right
ahead.
Mr. Walsh. I said from 1985 to the end of 1991, the pending
case load grew approximately 60 cases per year, which was
certainly manageable. In 1991, we had a pending caseload of
about 1,000 cases.
In contrast, between 1992 and 1996, the pending caseload
increased an average of 791 cases per year, more than we could
handle. And ECAB work force remained steady.
Now, what's happened is, we've got more resources, we've
got about 51 people now. But we had about 34 then. So from our
viewpoint, the most serious question is getting out timely
decisions. As far as the decisions themselves, I feel very good
about the decisions. Our attorneys are very industrious, they
have high output and they're working very hard. And their whole
goal, and our goal, is to reduce this time period to what I
think is a manageable time period, about 10 months.
Mr. Horn. It looks like you've made a change and that
you've processed more cases. But when you hear in the rest of
this organization, they lose files, don't answer calls, etc?
Does that worry you, as an administrative law judge?
Mr. Walsh. Well, yes, certainly, that would worry me. But
I'm of course concerned and responsible for my own agency. And
I said not too long ago, down in Florida, that in our view, the
claimant is our customer, is our constituent. And it's our duty
to see that they get a fair hearing. And that's what we're
pursuing. And our attorneys are pursuing that to the best of
their ability.
Yes, we are, as a board. So I would simply say to you that
what's most important is that we give a fair decision in the
rationale for the decision.
Mr. Horn. I understand you're saying it's below your level,
in a nutshell. You feel you've done your best with your
appellate actions.
Mr. Walsh. I can't comment on another agency. But I think
we're doing, I'm satisfied we're doing very good work.
Mr. Horn. OK, I'll take that for the record. Mr. Hallmark,
what are you doing to straighten it out? Do you admit there's a
problem?
Mr. Hallmark. I believe my testimony suggests that we
understand there are issues that we need to improve. There's no
question that there are cases where problems arise. Any system
that has 170,000 cases per year is going to have some cases
where there are surely going to be disputes and where there are
errors made. We have, as I said, a number of strategic goals to
address improvements in a wide range of activities.
One of them has to do with the whole issue of how we
communicate and whether or not we are accessible and whether
people can get a phone call back. That is an area that we do
believe is a resource intensive area, because we get 2 million
phone calls a year. Our staff tell us they are pressed to do
the basic adjudication and claims processing work, and adding
to that, answering more and more telephone calls, is a
difficulty for them. We have a proposal on the table right now.
Mr. Horn. Excuse us for a minute. We obviously have two
votes on the floor. We were told it would be at 11:30, and
they've pushed it up a little. So I'm going to finish my 10
minutes and when we come back, Mr. Turner will have 10 minutes.
And so it will go until we find out where we're headed here.
I would ask the Inspector General, when you've got a
troubled operation like this one what's been the investigation
procedure, and what have you done about this one?
Ms. Dalton. Mr. Chairman, we are continually in the Office
of Workers' Compensation, as with all the other Department's
programs, looking at them from an oversight capacity as well as
from an investigative capacity for specific problem areas.
Mr. Horn. Well, do you think there's a problem with the
program? First, I've got to find out if anybody thinks there's
a problem, or are we the only ones in town that think that way?
Ms. Dalton. Certainly our reports have indicated that there
are problems there. The last time I testifited before this
subcommittee, we mentioned our review of OWCP's customer
satisfaction survey, which I believe was a valid attempt to
find out how OWCP was being received, and how it was satisfying
its customers.
We indicated that a number of improvements needed to be
made in the survey, as well as recommended using other tools,
such as focus groups, to gain information on how OWCP was
serving its customers. Certainly there are indications that
other improvements are needed. I know certainly from my own
experience in dealing with people that have called in
complaining to us that there are some very legitimate concerns.
One thing that I think hasn't been mentioned here, but I
believe is in Mr. Hallmark's testimony, is a need to
communicate more clearly with claimants. I think there's a lot
of confusion, because we speak in Government jargon as opposed
to plain English. I think that relates to some of OWCPs
problems, I also think the Department needs to do a better job
of explaining where we are in a process, what's going on, what
people can expect, and what do they need to do.
Mr. Horn. Well, I think that's well put. And I might say,
Mr. Hallmark, what bothers me is way down at the bottom entry.
Now, part of that problem is the employing agency. The Post
Office, for example, had a number of cases where they refused
to even give claimants a form. And apparently, middle
management types in the Post Office, think they can keep their
salary if they show that nobody's injured down there.
Well, that's nonsense. They ought to give injured employees
the form, and if they don't, you should be punishing them for
not complying with the law.
Now, how do you solve that?
Mr. Hallmark. Well, it's clearly the case, and Ms. Dalton's
comments regarding our plans and efforts to improve
communication go to this point. Oftentimes, injured workers
don't know exactly who it is, where the problem is, and
sometimes the problem is some kind of a block at the agency
level, or some kind of failure to communicate between the
agencies and OWCP.
That's one of the reasons why we have worked much more
diligently in the last several years to try to improve our
coordination with the agencies, and to ensure that where
problems like the ones you've suggested, and they do
occasionally happen, although it's against the law, that we
have ways of identifying that it's happened, and then going to
higher level management to ensure that it stops.
The agencies are, including the Postal Service, are
increasing the level of their coordination with us and their
support of our programs. But frankly, it is the case that they
have troubles as well as we do.
I think, however, I would take issue with the notion that
we are a program in crisis. I think we are a program that
always is going to have some difficult disputed cases, and that
we're a program that has not been able to communicate as well
as we should with our customers.
But I think we are fundamentally moving in the right
direction, and I really believe that as the next few years
unfold, the projects and the initiatives that we have in place
will start to address a lot of the problem. You mentioned lost
cases. Our imaging process is specifically addressed at having
an electronic control, so that we don't have, as we do now,
hundreds of thousands of paper files that in fact do on
occasion get lost in the shuffle, as they move around in
offices. We are addressing those kinds of issues.
Mr. Horn. Do you have that kind of system in place now?
Mr. Hallmark. It's in place in five of our district offices
and will be completed this year.
Mr. Horn. Have you seen a difference in----
Mr. Hallmark. Absolutely.
Mr. Horn [continuing]. The five offices versus the others?
Mr. Hallmark. Well, it started just this past winter, in
its early days. But we see already that problems like a doctor
calling in to say, I need your authorization for a medical
treatment, whereas before that call had to be put on hold while
somebody went and found a paper file, now the person on the
telephone bank can simply pull up that case on their screen and
say, yes, I see the report you submitted, but you need to give
me this additional piece of information regarding its
relationship to this injury. They can then fax that piece of
information to us and get a decision on the spot. We've seen
that kind of improvement already.
Mr. Horn. Mr. Weiser, have any of your customers or clients
been with one of these five offices where imagery is used to
get their files? Or are you just running into the ones that
don't have this technology?
Mr. Weiser. I don't know what the five offices are, Mr.
Chairman.
Mr. Horn. Well, I take it Jacksonville isn't one of them.
Mr. Weiser. Well, if it's in Jacksonville, FL----
Mr. Hallmark. Jacksonville was our first office. I have to
tell you that this is being implemented with regard to new
claims. So the claim that was filed in 1999, for example, in
Jacksonville, would not currently be imaged. That's our plan,
to move to that later. Right now, all new claims are being
turned into this image system.
So if a claim was filed in February or March 2000 in
Jacksonville, it's now being handled in that fashion. Also
Dallas, San Francisco, New York and Cleveland.
Mr. Horn. Any comments by you, Mr. Sydnor? Have you seen
any change?
Mr. Sydnor. No, sir, I haven't.
Mr. Horn. Because you've had a rather long experience
there.
Mr. Sydnor. Any change right now would be too little, too
late, as far as I'm concerned.
Mr. Horn. Mr. Fox, have you seen change?
Mr. Fox. No, sir, I haven't.
Mr. Horn. And your representatives in the field back you up
on that?
Mr. Fox. I believe so.
Mr. Horn. Well, unfortunately, we have to go and vote. So
we're in recess then, and Mr. Turner, when he comes back, he
will have 10 or 15 minutes to ask questions, because that's
what I took. So we're in recess.
[Recess.]
Mr. Horn. Recess is over, I now recognize the gentleman
from Texas for questioning.
Mr. Turner. Thank you, Mr. Chairman.
Mr. Hallmark, you heard Mr. Weiser talk about a gentleman
named Mr. Gregg, his case where they took 23 months before
there was any action on the case. Was that at the initial claim
level, Mr. Weiser?
Mr. Weiser. No, Congressman.
Mr. Turner. That's on appeal?
Mr. Weiser. It was at ECAB.
Mr. Turner. All right, so I need to ask Mr. Walsh. That was
23 months before it was discovered that the file wasn't
complete, which Mr. Weiser pointed out should have been
discovered within at least 30, 60 or 90 days and been
corrected. Instead, it caused the case to go all the way back,
get the trial materials, and then I guess you had to wait
another 20 or so months.
Mr. Walsh. I'm not sure, Congressman, if he's talking about
a case that was remanded, is that what you're talking about,
Mr. Weiser?
Mr. Weiser. Yes, it was remanded this year.
Mr. Turner. But the reason for its remand was the fact that
the file wasn't complete, which seems to me to be a ministerial
matter, it should have been determined within at least 30 to 60
days and corrected.
Mr. Walsh. Yes, if I may----
Mr. Turner. I guess what I'm getting at here, what kind of
a system do we have? It sounds like every time you appeal, the
file gets a number and it sits over there until somebody 20
months later decides to look at it and make a decision, have
oral argument or whatever.
What kind of initial screening do you have in place to see
if the basics are there to prevent that kind of problem from
occurring?
Mr. Walsh. What happened, it sounds like, in that case, I
can't speak specifically to it, except it was remanded to OWCP,
we initially request when a notice of appeal is filed, we
request the case from OWCP. And they have an amount of time to
get that to us.
If in fact they can't get it to us, then the only thing
that we have available to us is what we call kind of an order
to show cause, we say, get the case to us in 30 days, or we'll
have to remand it for reconstruction.
Now, we don't have to do that in too many cases, because
OWCP does the very best they can to get the cases to us. But
because of our backlog, we hate to send the case back, remand
it back, even though we don't have it. Because once it goes
back, OWCP has to issue another decision. And then it has to be
appealed back up to us.
And so we work with the OWCP to try and get that file. Now,
it could have been lost, a lot of things could have happened.
But of course, we can't decide the appeal without the file.
So I don't know exactly what happened in that particular
case. But if there was an order remand, it was an order back to
the office to get the file together, reconstruct it. And your
question is, well, why did it take 23 months? I can't answer
that right off. It doesn't happen very often.
But we do give OWCP as much time to get the case to us,
because we are reluctant to send it back, Congressman, because
it's going to have to start back up again. So we make every
effort we can to cooperate with them to get that case.
Now, if it's lost, there's nothing we can do about that.
Mr. Turner. Mr. Weiser, what do you think about that
response?
Mr. Weiser. Frankly, Congressman, I don't find it
acceptable. It was not a matter of reconstructing the file. The
remand order was, we don't have the file. Get a new decision
and then we had to appeal it back.
And it's not the first case. I had a case called Linda
Joray, out of Oklahoma City, within a month of that. The same
thing was being done. I filed a motion at that point objecting
to the remand. And suddenly, they got the file and a decision
was rendered.
Now, I find it hard to believe that you cannot determine
within the first 30, 60 or 90 days of receiving an appeal, you
cannot determine that you either have or do not have a file
from the OWCP district office. In at least the cases I've had,
action is not being done, and these are cases done this year,
this is the year 2000, that action is not being taken as far as
remands, or the case, the John Bright case I mentioned, on the
executrix issue, not being done until the 23rd month. And
that's unconscionable, in my view, for an administrative office
to do that.
Mr. Turner. How many claimants have benefit of legal
counsel in filing these claims and pursing these appeals?
Mr. Weiser. I cannot tell you, Congressman. I don't think
there are a lot. Because I know a number of attorneys that I've
dealt with that do not want to take the claims. The
adjudication process is too long. And as far as the attorney
fees, unlike Social Security or VA, the client has to pay them
from whatever they get. And it has to be approved by OWCP, you
have to send your fees in for approval. You may not get fees in
advance. You can get expenses in advance, but not fees. That's
under the law.
And I don't have a problem with that. But I don't think
there are a lot of attorneys representing. Because it is just
not an area that they see quick results from or really a fair
process.
Mr. Turner. What percentage of your practice is involved in
these Federal worker comp claims?
Mr. Weiser. I would say about 30 to 40 percent, maybe, Your
Honor, I do basically Federal employment law, or Congressman, I
do Merit Systems Protection Board, OPM disability, Social
Security and OWCP. So it's about 30 to 40 percent.
Mr. Turner. Mr. Hallmark, what percentage of cases have an
attorney representing the claimant?
Mr. Hallmark. I was just looking through my statement. I
believe there's a reference in here somewhere.
My rough understanding is that roughly a third of the cases
are represented at our hearings level and nearly a half at the
ECAB level. Since the process is more streamlined, typically at
the district office level, the claimants are represented
generally either by a union representative or not represented
at all at the first initial audience.
Mr. Turner. Mr. Weiser, I think Mr. Walsh or Mr. Hallmark
described this Federal system as a non-adversarial system. Do
you agree with that characterization?
Mr. Weiser. I do not, Congressman. I think that too often
it's the claims examiner working with the agency to deny the
claim. I really believe that they are looking for ways to deny
claims. And Mr. Kunkel's case is a prime example. They added
two work factors that would never pass muster, because you'd
have to show abuse or error. That would be a disciplinary
action. That's one, I can't recall the other.
But Mr. Kunkel never alleged that as creating his emotional
condition. The agency brought it up. The other was the death of
his sister. That was brought forth by the agency. But in the
statement of accepted facts by the district office, those two
appear as work factors. Unclaimed by Mr. Kunkel.
Now, if a district office is to be fair to the claimant, if
they are not adversarial, why are they adding as work factors
that which the claimant does not claim, but the agency claims?
And work factors that you cannot prevail on? That is my
question.
And it's not just Mr. Kunkel's case. There are others like
that.
I think it's adversarial. I think, too, the forms, I've
given up trying to get the forms from OWCP or even from an
agency. I go on the Web site and pull them down and send them
to my clients. I'm waiting for the day when they say, those
aren't our official forms, that you've got to do it on a
certain form. That hasn't happened yet.
But I had a case in Oklahoma, Mr. Bieger. He was on OPM
disability retirement. He had his claim approved. We asked the
OWCP to send us a CA-7. He was a former postal employee. They
said, go to his employer. I said, the postal service isn't his
employer, he's on disability retirement, he's making an
election to take OWCP. Why can't you send the form?
Never got a response back. So I sent Mr. Bieger the form
off the Internet.
But this is the kind of responses I have seen. And I'll
grant you, I'm not one that handles every case in the country.
But in the cases I have handled, there have been problems.
Yes, we have prevailed in cases. But in many cases, we were
fighting all the way through. And we're fighting our own OWCP,
we're fighting an agency because they work, in my view, hand in
hand. They simply do.
Mr. Turner. Mr. Hallmark, what do you have in place to
prevent undue influence by the agencies over the decisions made
by the people in your office?
Mr. Hallmark. We have a substantial training program for
new claims examiners. And we have a procedural manual that lays
out in fairly explicit detail how decisions are to be made. I
think it's very well understood by our claims examiners around
the country that we are an independent body, that we have a
responsibility to be objective, that we obtain communications
from the agencies, because they in fact are the ones who know
what the circumstances are, they have information about pay
rates and so on which would be appropriate for filing of wage
laws claims.
But we are not guided by agency activity, and we do as best
we can to shield our claims examiners from being hounded, if
you will, as has been suggested here. I don't believe that our
claims examiners in the district offices feel that they must
reach a particular result. And I'm not aware of agencies
attempting to pressure, or they certainly don't attempt to
pressure me to come up with a result of one kind or another on
a case. Although clearly, the agencies have an interest, they
have a fiduciary responsibility, and they work to try to
constrain cost.
But that does not yield, in my view, inappropriate
discussions of that kind. Where we are aware that they happen,
we address that as inappropriate.
Mr. Turner. I see my time's expired.
Mr. Horn. Go ahead.
Mr. Turner. One followup question. Do you have a situation
where these claims are actually handled by a representative in
your office in a way that they end up handling the same agency
claims? Do they end up specializing, I don't mean specializing,
do they end up handling a disproportionate share of claims from
one agency because of perhaps the location of the district
office?
In other words, would we have a situation where someone in
your office would end up having their caseload being 60 percent
from one agency, simply because of the location of that
district office and its relationship geographically to some
Federal agency?
Mr. Hallmark. I understand your question. We have several
different methods of assigning work to claims examiners. The
predominant method is that cases are assigned on a random
basis, based on the last three digits of the case number. So it
is not, that's a process which spreads the cases across the
office. In some cases, we do have specialization, with respect
to certain types of cases or certain stages. But even within
those specializations, in other words, initial adjudication,
post-adjudication, return to work efforts, the assignment is on
a random basis.
And I think in fact there is no tendency to create that
kind of an overly tight relationship with a given installation.
Mr. Turner. Did I heard you say earlier that 90 percent of
claims are approved and 10 percent denied?
Mr. Hallmark. More than 90 percent of what we call
traumatic cases, which are injuries that occur on one work
shift, are approved, something like 93 percent. That's an
outcome that has been fairly consistent over a number of years.
Occupational disease cases, which are more complex, and
some of the cases that Mr. Weiser has been discussing today,
where there are a whole series of different factors which have
to be considered as to whether the condition is caused by the
work or by other activities, are less likely to be approved. I
think the number in that case is in the high 60, low 70
percent, and the average between those is around 89 or 90
percent.
Mr. Turner. Mr. Walsh, from your perspective, you said that
when the case reaches your appellate level that there is no ex
parte communication with the agency at that level.
Mr. Walsh. Yes, we have nothing to do with the agency.
We've never been approached by, not in my time, the agency to
affect a case in one way or the other. As I say, it's non-
adversarial. The agency is not a party. They cannot produce
briefs, they cannot present oral argument. They're out of it.
Mr. Turner. But the Solicitor General?
Mr. Walsh. The Solicitor represents the Office of Workers'
Compensation before us, in oral arguments, for example. They
are in effect a party to the case.
But the agencies are not. They are of course self-insured,
because of the chargeback, and they have a vital interest in
it, because they pay the money. But they do not appear before
us, nor do they have any influence upon us.
Mr. Turner. Well, am I incorrect in stating that the
Solicitor General is in effect standing in for the decision
that was made at the lower level?
Mr. Walsh. Yes.
Mr. Turner. He is advocating denial of the claim?
Mr. Walsh. Yes, I think that's right, he does represent the
Office of Workers' Compensation. But in my remarks, I said we
distinguish between the adversarial system and the non-
adversarial system, in that the employer in the adversarial
system can fight the claim all the way through administrative
process and into the courts. Whereas in the FECA system, the
non-adversarial system, they cannot. The employer cannot fight
the claim.
What they do initially is they can investigate it, and
furnish facts to OWCP upon which then OWCP will make a
judgment. But they are not a party to the claim. That's the
difference between the two systems.
Mr. Turner. Mr. Weiser, that to me sounds like a
distinction without a difference. The Solicitor General is
there to be sure that the decision to deny the claim is upheld.
Does that sound like an adversarial system to you?
Mr. Weiser. Yes, that would be my view. My major concern
with ECAB has been the length of time it takes. And then the
procedural way that it's handled, which I think is highly
improper. You shouldn't have to wait 23 months to find out
that, gee, you don't have the case file. And then the case is
remanded, and when it goes back up, now you have another 24
months.
I heard them say that there had been 10 months and 16
months. I haven't seen it. And I'm talking this year, 2000. I
have not seen it, with the cases that are pending at ECAB that
I have. We are getting the decisions back in a 23 to 24 month
period.
Mr. Walsh. Congressman Turner, if I can just add, if Mr.
Weiser's through, add to my remarks about the Solicitor. In the
majority of the cases, probably 95 to 96 percent of the cases
that come before us, they simply say, we're not making any
comment, we're not filing any brief. Where we see the briefs
and what you might call adversary position is in the oral
arguments, where they file a brief, state the case, defending
the decision of the OWCP. But I wanted to make it clear that in
most cases the Office does not say anything or file anything,
they just say, we're not going to file a brief in the case.
Mr. Turner. Well, it sounds to me like our major problem is
time here. I know you have a request in through the President's
budget for additional funds for additional staff. I know I
agree with the chairman, a lot of times I think we are told the
problem is money, and yet maybe there are other problems that
could be solved. It sounded like some greater initial review of
these files as they come in would be helpful.
Mr. Hallmark, when your people look at these claims, is
there any difference between the processing time, the time from
initial filing of the claim to a decision for those that end up
being granted, that 89 or 90 percent, versus what may appear to
be the tougher cases that you end up denying? Is there some way
in the early stage to make a distinction where you get on a
different path, if you have a relatively clean claim?
Mr. Hallmark. Well, clearly, the purpose of workers'
compensation is to try to reach prompt decisions on those cases
which are straightforward. So the vast majority of your
straightforward slip and fall events that occur, which is the
bulk of the 170,000 claims, are dealt with very, very rapidly.
And medical benefits ensue, and that's usually the end of the
story.
Where a case has to be developed, or in other words, there
are questions, either the agency has raised a question about
the work-relatedness of the condition, or there is a medical
issue about whether there is in fact a disability as such,
those events take longer. And yes, occupational disease cases,
which are more complex, we set a different standard than we do
for traumatic injuries, which we typically, 97 percent of the
time, we complete within 45 days.
Occupational cases, we complete simple ones, which are a
category we recently created, we do within 90 days. More
extended ones, such as stress cases, we try and accomplish
within 180 days. So there are different gradations. And there
always are cases where the complexity of the development, the
evidence is such that it takes longer than what our standard
is. That's why our goals are not expressed as 100 percent. We
will have a goal of in some cases 90 percent or 80 percent
within a certain timeframe. Because we know that there are
always some cases that deserve and should have more careful
review than a particular timeframe.
Mr. Turner. Do you have statistics that you could share
with the committee that would show us that, specifically for
example, if it's 50 percent of your claims are disposed of
within 90 days, and 10 percent take 2 years, that would be
interesting information for us to see. Do you have it broken
down in that fashion?
Mr. Hallmark. We have lots of different data. I don't know
if it's in exactly that fashion. But we certainly can tell you
at any given moment how many cases were adjudicated within our
timeframes, the goals that we set, which is 45 days for
traumatic, 90 days for simple occupational disease, 184
extended occupational disease.
And we also can tell you at any given time how many have
gone beyond, say, 1 year. And I think as of June 30th, that
number was 50, or thereabouts. We keep track of those cases
that are outliers, because we know by experience, as you look
at this kind of process, it's easy for a case to fall off the
screen, if you will, and become--take too long. So we have
reports that tell us, this many cases are over 1 year in
district office X, Mr. district director, will you ensure that
a letter goes out to that claimant every month explaining where
the status of that case is.
That's part of our process, and part of what we do to
ensure that even though a case may take longer for reasons that
are legitimate, that it doesn't cease to be a concern for
managers and claims examiners.
Mr. Turner. How many district offices do you have around
the country?
Mr. Hallmark. We have 12 offices.
Mr. Turner. And do you develop statistics that show that
the workload is fairly evenly distributed between those 12
offices, or do we have some offices that have greater workload
than others?
Mr. Hallmark. The offices range rather greatly in size. But
we have the process whereby we allocate staff as based on
incoming caseload. So it is proportionate insofar as we
possibly can make it to the workload that exists in each
office.
Mr. Turner. Have you monitored the length of time that it
takes to process and dispose of claims by district office to
see if they're----
Mr. Hallmark. Absolutely. We do that on a quarterly basis
to ensure that problems don't arise. We look at it, and where
there are problems, where an office starts to have difficulty,
we have remedial discussions about how to fix it. And that's
something that's been done in this program for 20 years, and
necessarily so, because this kind of workload cannot be allowed
to be left for a general process, routine process. You must
stay on top of it.
Mr. Turner. And I assume you do the same for the
individuals who review the claims, to be sure that their
performance is at least up to some acceptable standard?
Mr. Hallmark. At our appellate level, the hearings and
review level, the data that I mentioned in my statement this
morning are a part of the way we measure those kinds of things.
We also look at standards that each hearing representative has
for issuing their decisions.
And by the way, the timeliness statistics I talked about at
the district office level are also measured at the individual
claims examiner levels, so that we can identify problems and
fix them right down at the immediate source.
Mr. Turner. Well, in conclusion, Mr. Chairman, I think I
can see some evidence of progress here. But it seems like we do
have a long way to go in terms of timely processing. And I
think we need to all recommit ourselves to trying to be sure we
solve these problems. It's not the way we should treat our
Federal employees when they have an injury on the job. And
anything we can do to improve that, I think both the chairman
and I would be very supportive.
Thank you, Mr. Chairman.
Mr. Horn. Well, thank you.
Let me followup on a few things. When you have a case, Mr.
Hallmark, that has been turned down by Mr. Walsh's operation
and remanded back to OWCP for more information, do you go
through that or have your staff go through it and straighten
out where the errors were made by the various offices? Mr.
Walsh, how many cases do you reject, because of something
that's been done within the administrative process?
Mr. Walsh. Mr. Chairman, it varies from month to month. But
it averages about 25 percent of the cases are remanded for
various reasons. Either there's been an error or law or further
development needs to be taken. And the office usually follows
those, what we have in our decision.
Mr. Horn. Well, Mr. Hallmark, does this give you a chance
to straighten out a casefile, or other administrative problems?
Mr. Hallmark. Mr. Chairman, we do two things with respect
to the cases decided at ECAB. They set precedent for us, and so
we review the decisions that the board makes to ensure that we
are in synch with the view of the law that they establish. And
obviously law is, as I'm sure you're aware, evolves over time
and it's important for us to make sure that our claims
examiners learn that interpretations have shifted.
So we send out, on a roughly monthly basis, a listing of
the most significant decisions of that kind, where either there
has been a slight shift in the interpretation, or where a
systemic kind of interpretation is identified that we need to
fix. In other words, the board has said, we're seeing this kind
of error more frequently. And we pick up on that and use it as
a training device.
The second thing we do is that, as each individual case
comes back to us, obviously we have to then correct whatever
the issue has been, we have been directed to do by the board,
which may mean either just simply reversing the decision or
proceeding with further development. Those cases are also
reviewed by district managers to ensure that we understand why
the error occurred in the first place. And again, used as a
training device for the specific staff, so that we don't repeat
them.
Mr. Horn. Mr. Walsh, when you see a case that's been
sitting around for 2 years in the system somewhere, do you ever
expedite their hearing date? How do you decide whose case comes
first? Is it simply first come, first serve?
Mr. Walsh. Yes, at the outset, to be fair to all
appellates.
Mr. Horn. How about the person sitting there for 2 years
waiting for their case to come back to ECAB as Attorney Weiser
explains? Seems to me you ought to give them a speedy appeal,
if the bureaucracy is not doing anything for them.
Mr. Walsh. Yes, Mr. Chairman, just to address your first
point, to be fair to all litigants, we take them in the order
in which they were appealed. But we do expedite cases. And what
we've been doing, since OWCP has gone over their periodic
roles, they hired 100 people to do that, which brought a
tremendous amount of appeals to us, we've been expediting those
cases, because we consider those to be the most important
cases.
We also expedite cases that attorneys have requested and
given specific reasons why they should be expedited. We keep
track of every case in the house. And we have a tracking system
now that has been devised where we have an inventory, we know
where all our cases are, we can print out the chronological
listing of what's happened. And we're keeping track of what we
would call old cases.
When I addressed you 2 years ago, we had something like 725
cases over 2 years old. I'm pleased to report that now we're
down to about 75, and that's quite a large gap for us to pick
up.
So we have a way of expediting cases, and we do.
Mr. Horn. So you can, and you do, you're saying.
Mr. Walsh. Yes, we do.
Mr. Horn. OK. How many cases do you have who have not seen
a decision in 2 years, or left and never get into the system? I
mean, are there some cases you just reject or what?
Mr. Walsh. There are some appeals we reject, is that your
question?
Mr. Horn. Yes.
Mr. Walsh. Yes. Of course, we will reject cases for
jurisdiction. We don't have jurisdiction to take the case.
We also have numerous cases where after the appeal has been
filed, the attorney or the litigant will ask that the case be
dismissed or withdrawn, because they want to proceed back
before OWCP because they have new evidence. So we have a lot of
those.
So of the say, this year we'll have 3,700 disposals, there
may be 200 or 300 that are rejected because we don't have
jurisdiction of the case.
Mr. Horn. In what sense would you not have jurisdiction?
Mr. Walsh. Well, if the case is appealed to us over a year
from the last merit decision, we can't take jurisdiction of it.
Actually, the regulations provide that if the appeal is not
made to us within 90 days of the last decision by OWCP, we
don't have jurisdiction. But over the years, we've extended
that for good reason. We'll let them appeal up to a year. If it
exceeds that, we don't have jurisdiction of the case. They have
to present whatever they have before OWCP.
Mr. Horn. Well, what happens to them there? Does the
process just stop there?
Mr. Walsh. The claimant is free to go back to OWCP with
whatever evidence they have. But for example----
Mr. Horn. Well, this sounds like a catch 22. They go up,
they go back and nothing happens.
Mr. Walsh. Let me explain. If in 1997 they had a merit
decision from OWCP, and they appealed to us in 1999, we could
not take jurisdiction of that case, because it's over 1 year.
That's all I'm saying.
Mr. Horn. Well, does that make sense?
Mr. Walsh. Well, that's the regulations. We have to----
Mr. Horn. Is that the law?
Mr. Walsh. That's the law.
Mr. Horn. Or is that some bureaucrat's dream?
Mr. Walsh. No, no, that's the law that we have to follow.
If someone wants to amend that----
Mr. Horn. A law made by Congress, or an agency regulation?
Mr. Walsh. Well, the regulations are promulgated by the
Department of Labor and the Secretary of Labor. We are of
course bound to follow those regulations. Now, if they were
changed, you could extend the appeal out as long as you wanted,
for a year or two or three. People could appeal after 5 years
after the decision, presumably, if the regs were changed. But
it's 1 year now, and has been since 1974, when Congress made
some amendments.
Mr. Horn. Well, whose fault is it that cases haven't been
processed, because they've missed it by a day or something like
that?
Mr. Walsh. Well, the burden is upon the attorney or the
claimant to file the appeal. And they have to do that within a
certain period. That would be true of any administrative body
or any court. Appeals have to be filed within a certain time.
The burden would not be on the agency.
Mr. Horn. Mr. Weiser, you ever have any cases like that,
where you've missed it for a client because of the 1-year rule?
Mr. Weiser. I've not had that, we've appealed it untimely.
I've had it where people have come to me, Mr. Chairman, and
they are over the 1-year mark. Yes, you can take that back to
the district office, but your review will be under clear
evidence of error, under the present regulations. Very
difficult standard. You may bring in medical documentation, for
example, that shows you had a valid claim. OWCP will reject it
and so will ECAB, under clear evidence of error. I've seen
very, very few cases that have succeeded under that standard.
Mr. Horn. Part of the complaints I see that have popped up
when I look through these cases have to do with the
availability of doctors one way or the other. Now, the agency
has primary care doctors, and to some degree, the individual
that is injured has doctors. Or do they have to go through the
agency doctor all the time?
Mr. Weiser. Well, as far as, if you look at initial injury,
for example, take a traumatic injury. At a Federal agency like
the Postal Service. That employee, if they do not know their
rights, may very well be directed by that Federal agency to
their doctor. I've seen that. They will tell them, we have a
doctor, go to this doctor.
They will then get the result they want from that doctor,
the agency will. If the injured employee then goes to their own
doctor, for example, then many times I've seen OWCP will take
the agency doctor position.
Now, if you can ever get a claim approved, then they will
send, the OWCP will be sending you to their second opinion
doctors and then ultimately to a referee examiner. And the
problem I see in that arena is, they will always take what
their doctors say.
In the Bill Oates case, he was seen for 20 minutes by a
referee examiner, not examined, nothing. His claim was denied
because the referee examiner said there are no residuals.
Why wasn't his doctor, who sees him on a weekly, monthly
basis, given more credence, credibility than the referee
examiner? I think it should be.
But that is what's happening, that I have seen, Mr.
Chairman.
Mr. Horn. Well, somehow we've got to get a system that
protects the public interest and protects the individual
interest.
Mr. Weiser. I don't disagree.
Mr. Horn. In California, we had a real mess in workers'
compensation, where there were lots of lawyers and doctors that
were just saying yes to everything, and they were wrong.
Because they were just milking the system.
So the question is, what kind of a board operation can you
put together and what kind of an agency operation can you put
together where you have people of integrity that can give you
the medical data you need to act in a reasonable way? That's
what I'm curious about, how do you handle that? Are we short on
doctors? Or do we rotate them, or if they go against the
agency, do they never get a case again? Or this kind of thing.
Mr. Weiser. Let me give an example, if I may, Mr. Chairman.
And this is on emotional condition claims, and they are out of
three clients I have in Memphis, TN.
They were sent for second opinion to a psychiatrist in
Corinth, MS. Now, that's approximately 80 miles from Memphis,
TN. All three of them were sent there.
Mr. Horn. You mean they don't have any psychiatrists in
Tennessee?
Mr. Weiser. Well, that was my question.
Mr. Horn. I've got some clients for them. [Laughter.]
Mr. Weiser. It amazes me that Memphis doesn't have
psychiatrists for second opinions. I wrote the claims
examiners, after the third person. Because it didn't sound
right. You're supposed to rotate.
All I got back was a telephone call, that said, don't call
us back, but you're opening a can of worms. And then for the
third person, they suddenly sent them to a psychiatrist in
Memphis for a second opinion.
But what was happening, the Corinth, MS, psychiatrist, on
the two cases prior to the third one, ruled for the OWCP every
time. Again, the inference I have to draw, it's a setup. The
person is being sent, being funneled to where they want them to
go, knowing the decision they'll get.
And in California, you have a doctor called Elliott Ness
that they do that all the time, OWCP does, for second opinion
or referee. That's all I can answer, is my experience, Mr.
Chairman.
Mr. Horn. Mr. Fox, what's your experience with second
opinion physicians? Do you agree with Mr. Weiser, and do you
think the board is handling claimants the right way in terms
unbiased or time? What are your people saying to you?
Mr. Fox. Same thing. I do have to agree with Mr. Weiser.
When one of my clients goes into a doctor's office, assigned to
them by the Department, and they're out in 10 minutes and
they've got a back injury, and they're not physically touched
during the examination, or when they would attempt to make
comment on what's going on, how it's affecting their lives,
they're told it's not necessary. And they're out in 10 minutes.
Mr. Horn. Well, do you tell the Federal program what is
going on with these doctors? Is this guy milking people and
OWCP by bringing clients through their doctor's office? Is this
set up to deny people benefits?
Mr. Fox. I certainly believe that that's going on. You've
been to a doctor, Mr. Horn, usually there are people waiting in
the waiting room.
Mr. Horn. Yes.
Mr. Fox. Not with these doctors. That tells me as a
clinician a lot about their practice and where they're getting
their boat payments.
Mr. Horn. What about that, Mr. Hallmark?
Mr. Hallmark. The rotation process that we have in place is
a very strict one with respect to referee examinations. The
referee examination is spelled out in law. It is the final
resolution of dispute. And we do everything we can to ensure
that there is a rotation that is fair, given the availability
of doctors in an area.
Second opinions are not necessarily rotated in that
fashion. Many of our second opinions are obtained through
private sector contracts that provide us with that kind of
access. There may be, in the example that Mr. Weiser notes in
Tennessee, maybe that the contractor who's providing those
second opinion referrals wasn't able to find somebody to
operate in their system in Memphis.
We are aware of those kinds of issues and we take response
when we have complaints that are cited of the kind that Mr.
Weiser just mentioned. I've addressed in my written comments,
and I would point you to those, some of the changes that we've
made with respect to our doctor rotation processes and second
opinion procurement, since the hearing in Long Beach in 1998.
We are anxious to ensure that this is a quality process and
that claimant violation, that claimant complaints about the
quality of a review or the way they are treated by a second
opinion, or a referee doctor, are treated seriously and
addressed.
Now, it has to be understood, though, that these kinds of
evaluations oftentimes are brief because the primary
involvement of the second opinion or referee doctor is in
reviewing a very voluminous pre-existing medical record. So the
evaluation in person may seem to the injured worker to be
cursory, when in fact, that's from the point of view of his
specialist, that which is needed.
And again, if we have evidence that an individual is not
providing the kinds of services that we believe are needed, and
are of the quality that we need, we will remove them from our
list.
Mr. Horn. Let me just go through a few questions, then I'd
like to submit them on behalf of Mr. Turner and myself to all
the witnesses, and it's going to take a little time. So I think
your staff will want to work with you on that.
Mr. Walsh, the subcommittee received information from OWCP
officials that they discuss cases with board members. Under
what circumstances would officials contact board members to
discuss cases, and would those discussions be considered ex
parte communications?
Mr. Walsh. Well, they would be considered ex parte, but I'm
not aware of any such conversations, context.
Mr. Horn. So you're saying none really happened?
Mr. Walsh. None that I'm aware of, Mr. Chairman.
Mr. Horn. That you're aware of?
Mr. Walsh. Yes.
Mr. Horn. OK. Now, with all of you, what are you doing to
reduce the number of pre-hearing remands? Is that due just to
incomplete records or what?
Mr. Walsh. I'm not sure what you mean by pre-hearing
remand. If a case is remanded, it's remanded after full
consideration by the panel of a case, and they've decided to
remand that case, and it comes out in a written decision with
rationale, and it directs the office to do something. So I'm
not certain what----
Mr. Horn. Well, I assume you found something that you
wanted as data to make a rational judgment, so you kick it back
to OWCP. Is that it?
Mr. Walsh. Yes. That's our role. Our role is to review
whether they've correctly looked at the facts and correctly
looked at the law. If we disagree on either of those issues,
and we find they haven't, that would be a basis for sending it
back.
For example, we might feel that a case has to be developed,
that they have to send it out for medical, that they've only
looked at one side. So we think there's enough evidence, what
we call prima facie, go back, office and develop the claim,
which they will do.
Mr. Hallmark. Mr. Chairman, you may be referring more
specifically to the process at the hearings and review level.
We do have a pre-hearing review process, which again goes to
some issues that were raised in one of the earlier hearings.
And this is in my statement. We have substantially improved
that review process to ensure that if, for example, an appeal
was filed from one of our district office decisions, it reaches
Washington, but at the same time, new medical evidence which is
pivotal to the decision is received from the injured worker. We
then would quickly remand that case without making it wait for
the scheduling of a hearing. That's the data that I mentioned
in my oral remarks, that we have reduced the time for those
pre-hearing remands from, I believe it was 160 odd days, to
roughly 88 this year.
So we've taken that consideration as something that we
really need to work on and improve to ensure that these cases
don't linger and have to go through the entire process of
waiting for scheduling of an oral hearing.
Mr. Horn. Ms. Dalton, in one of our earlier hearings, you
testified that the customer service surveys were vague, stating
that the agency was unable to fully discern whether Federal
injured workers were being adequately served by the process
intended to help them. And the Inspector General recommended
that the agency enhance the accuracy of the data collected in
the customer service surveys by improving survey methodology so
OWCP can better utilize the information.
Now, since the agency praises its customer service, why
wouldn't it conduct customer service surveys?
Mr. Hallmark. We have done so, Mr. Chairman. We did not
complete a review in 1999 because of the issues that have been
raised by the IG with respect to the technical sampling
processing some of the questions in the nature of the survey.
We've completed one just recently in 2000, which incorporated
many of the recommendations from the IG report.
We don't have the final report on that, but we certainly
intend to continue with that process, and to implement some of
the other comments, which were to go a broader series of
measures to try to get more precise information about the real
impact and the real views of our customers.
Mr. Horn. Let me ask you, Mr. Hallmark, does the agency
measure the rate of recurrence of disabilities that sometimes
occur with former claimaints? If a recurrence of disability
does occur, does the agency begin calculating a new period of
lost production days, or are the recurrent lost production days
added to the previous period?
Mr. Hallmark. We do keep track of recurrences as a separate
category of case. The particular issue you're raising with
regard to our measure of lost production days has been handled
in the fashion that a particular period of disability is begun
when the initial claim loss claim is filed, when a new
recurrence occurs later, after the person has gone back to
work, we treat that as a separate case.
Mr. Horn. My staff, in reviewing this, felt what steps do
they really feel need to be taken to ensure injured workers are
cared for in a timely manner, which is what we've seen from
some of our witnesses this morning, both within the Branch of
Hearings and Review as well as your board, Mr. Walsh. In other
words, judicial review, more oversight by the subcommittee and
congressional intervention and all that, I understand. But I'd
really like to see it done by the agencies affected.
So what can you say on that in terms of taking those steps
to assist injured workers and work in a timely manner?
Mr. Hallmark. I believe I've already provided some
statistics that show, I think, fairly dramatic improvement in
our timeliness at the hearings and review level, and that we're
also working to improve quality at that level, and at the first
instance, so that cases don't need to go to hearing.
Mr. Walsh. Well, Mr. Chairman, as I indicated in my remarks
at one point in time, at around 1996, we were at a level of
5,500 cases. We dropped that to 3,600. By next year, we will be
under 3,000, probably around 2,600, we've programmed for. So as
we bring down our caseload, our timeliness is going to improve.
Again, we'll expedite cases that we think should be
expedited, and certainly, that's the termination cases. But
other than that, we think it's fair to take them in the order
in which they're appealed.
Mr. Horn. Well, let me ask the gentlemen on the other side
of the aisle here, do you believe the remand rate is high
within the Employee Compensation Appeals Board and the Branch
of Hearings and Review? And I would ask, you gentlemen, what's
the appropriate remand rate?
Mr. Walsh. I'll respond to that. I think the normal
affirmance rate, if I can phrase it that way, amongst appellate
bodies, and this is courts included, would be about 90 to 92 or
93 percent. The reason ours would be 75 percent, essentially,
is because we do both the law and the facts, we do de novo.
Whereas most courts and most appellate bodies are only looking
at the law. They'll only look, they'll look at the
administrative law judge's opinion if there's any evidence to
substantiate it, they don't bother with it, they simply look at
the law.
So our remand rate would be a little higher than the
typical appellate body, because we review both the law and the
facts.
Mr. Horn. I'm interested in the board's use of attorneys.
Does the Solicitor of Labor assign an attorney to the board?
Mr. Walsh. No, Mr. Chairman. We have 26 staff attorneys
right now. We're a little short, because we have to hire some.
But we have 3 paralegals, and we have 7 board members, a total
of 36 attorneys in the agency. They're within our agency. They
have nothing to do with OWCP. They're part of our agency. And
the cases are assigned within our agency.
Mr. Horn. Well, what is the Solicitor's attorney doing?
Mr. Walsh. Well, the only thing the Solicitor does is,
after the case is decided by the OWCP, they apparently review
the cases. As I indicated earlier, in about 95 percent of the
cases, they say nothing. They just say, we're submitting the
case, we have no comments on it.
But, if after the case is submitted, the claimant or the
appellant asks for oral argument, then the Solicitor will
prepare a brief. Normally the other side does, too. That's when
they become really into the case. But other than the oral
arguments, they really don't make any appearance.
Mr. Horn. Well, you've got your own staff attorneys that go
through the case, I take it, and brief it for the members of
the board.
Mr. Walsh. Right. That is true.
Mr. Horn. So why do you need somebody from the Solicitor of
Labor?
Mr. Walsh. We don't. They're not part of our organization
at all. They are, on oral argument, they're defending the
Office of Workers' Compensation decision. They're not part of
our operation. They have nothing to do with us. Except to argue
before us occasionally. I want to make that clear. Because our
attorneys do our decisions. And our board members do our
decisions.
Mr. Horn. Are they worried in some cases that it would lead
to going into the Federal court system, to get a final
decision?
Mr. Walsh. Let me explain, just quickly if I may. The first
week I was chairman I was served with a complaint that
contended that the decision of the board was arbitrary and
capricious, etc., and there was collusion between OWCP and
ECAB, etc. About 3 weeks later I was served with a complaint
that the board was issuing decisions with two members, and that
their decisions were unlawful.
Now, both those cases went up to Federal court. Summary
judgment in both cases, and affirmed on appeal.
Since that time, in 1985, I've been served about 25, 30
times as the board has, in OWCP, with similar complaints. That
is, the board's biased, the board's arbitrary, etc., and
Constitutional provisions. And all those cases have been
reviewed by the courts, they've gone out on summary judgment.
So yes, the claimant can go into Federal court if they're
dissatisfied with our judgment. But the courts have limited it
to the basis of Constitutional violation.
If that answers your question, it can go into the Federal
court.
Mr. Horn. Mr. Hallmark, what about the agency? How many
lawyers does OWCP have to look at these cases as they go
through the review process?
Mr. Hallmark. The Solicitor's office is an independent body
which is not part of OWCP either. It reports directly to the
Secretary. They represent the director of OWCP in selected
cases. And I think there's a legitimate reason for that, in the
sense that, as I indicated earlier, ECAB decisions establish
case law, and result in the evolving nature of how these cases
are addressed. And the director has an interest in ensuring
that straightforward and interpretable kinds of outcomes are
reached. And so the Solicitor's office in effect is looking at
how the case law has evolved and defending, in effect, the
interpretations presented by the director.
Mr. Walsh. May I followup on that, Mr. Chairman?
Mr. Horn. Sure.
Mr. Walsh. I had in my extended remarks that we have had 51
volumes of law published since the beginning of the ECAB. And
of course, we try to strive for stare decisis when we have
thousands of cases coming through. Those volumes, they make up
the law. That's what the law is for OWCP, for the Solicitor's
office and everybody else. We're the court of last resort.
Those volumes are sent to law libraries around the country and
to public libraries and they're produced for the Government
Printing Office. And that is the case law that's built up over
these 54 years now.
Mr. Horn. It was started when?
Mr. Walsh. The board came into being in 1946 through an act
of Congress, of course.
Mr. Horn. So that's the case law, starting in 1946?
Mr. Walsh. Yes, that is true. And I might point out that
these volumes contain about 150 to 175 cases that we pick out
ourselves, that we think are the most important issues in a
given year. And they become the lead cases that OWCP follows
and everybody else follows, practitioners, lawyers, etc.
Mr. Horn. I want to ask Mr. Weiser, but I want to get a
statistic on the record, as my head slowly thought about all
those lawyers there, I remember that when I was assistant to
the Secretary of Labor under President Eisenhower, Betsy
Margolin, the Solicitor's office had a 93 percent appellate win
record. She rarely, if ever, had been defeated.
Do any of those cases go into the Federal courts?
Mr. Walsh. Well, yes, as I just indicated.
Mr. Horn. You do the work for them, I'm assuming?
Mr. Walsh. No, let me clarify. There are claimants that go
into the Federal court. And they, in my experience, about 35,
40 cases that I'm aware of. The board has normally made
defendant, and the OWCP is made defendant, the Secretary is
made defendant.
To my knowledge, all of those cases have been dismissed on
the basis of summary judgment after review of the case and
affirmed on appeal. And what the courts have said is that we
will not look at an ECAB decision, we will not overturn it, we
will not put ourselves in their shoes, unless there's a
constitutional violation. And that's what they call a
preclusionary statute. They say Congress is very clear what
they wanted. They wanted an administrative agency to conduct
reviews in these cases.
Mr. Horn. Mr. Weiser, you face all those attorneys and
board members in court, and are knocking on doors in
Jacksonville or other areas you practice. What do you think
about the review process?
Mr. Weiser. Let me address the court process, Your Honor.
There is 5 U.S.C. 8128, I believe, (a). The decisions of the
Secretary of Labor in the area of injury compensation cannot be
reviewed by a court, even by a writ of mandamus. That is by
law.
So yes, they will get summary judgment in court, if a
person takes it there. I do not take cases there for that
reason. Because I think 5 U.S.C. 8128 will bar you.
As far as the remand rate, I would say the remand rate from
ECAB and the cases I've handled is perhaps 1 to 2 percent. It
is not up to 25 percent, as I think I've heard overall. But
that's been my experience.
As far as the Branch of Hearings and Review, I do believe
that after your oversight committee looked at the branch, in my
experience, I have seen many more fair hearings and decisions.
They have at least on the pre-hearing side, remanded cases back
where the district has been absolutely wrong. And I think we
are getting fair hearings.
My main concern is with the district offices, especially in
Jacksonville and Dallas. Because I think they are non-
responsive to claimants, completely non-responsive. And I would
add, I've heard that the emotional claims are 6 months to get a
decision. Not in the cases I've had. We are running 11 months
or greater. And that is to initial decision.
And when you inquire why, you can inquire 11 months, 12
months later, say why are we not getting a decision, the answer
is, we're still developing the case. If you can't develop a
case within 6 months, I question. And these are not complicated
emotional condition cases that I'm representing. But every one
of them that I have had, Mr. Chairman, is running a minimum of
11 months for an initial decision from a district office.
Mr. Horn. Well, I want to thank you all. In about 2
minutes, well, even 1 now, under the rules of the House,
subcommittees cannot meet when the full committee is meeting.
And they're downstairs in what would normally be our hearing
room.
I want to thank all of you for coming, and we'll send you
some questions I'd like to see an answer to in the next couple
of weeks. Don't rush it, but if you could do it within the
month, we'd appreciate it. And I know your staff might well
answer some of these questions.
I want to thank Russell George, our staff director and
chief counsel; Heather Bailey is the professional staff member
that is working with this issue. She's to my left, your right;
Bonnie Heald, director of communications, over there against
the wall; Brian Sisk, our clerk; Elizabeth Seong, staff
assistant; George Fraser, intern; and Trevor Pedigo, intern.
And Mr. Turner's staff, Trey Henderson, counsel; Jean Gosa,
minority clerk; and our court reporter, Shari Acosta.
Thank you very much for coming. We're adjourned.
[Whereupon, at 12:29 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
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