Monday, October 5, 1998 • Army Times Publishing Co.
Workers' Comp Employee Fears Reprisal
By Christy Harris
Federal Times Staff Writer
A workers' compensation claims examiner says his agency wants to
suspend him in retaliation for supporting injured workers' complaints of
unfair treatment.
The case may open the Office of Workers' Compensation Programs
to renewed questions about the way it handles benefits claims.
The Labor Department, parent agency of OWCP, has proposed a
30-day suspension for Joseph Perez, a GS-13 claims examiner for the
agency's longshore and harbor workers' compensation program in
Washington, D.C.
Perez's case has aroused widespread attention among injured
workers, many of whom say the workers' compensation office has
treated them badly and ignored medical evidence supporting their
benefits claims.
Perez backed the injured workers' charges in testimony before a
congressional panel in July.
On Sept. 17, the Labor Department charged Perez anonymously
released a draft decision he had written in a claimant's case and a
supervisor's memo directing him to change his decision to comply with
evidence and office policy.
Not the First Time
Perez, who testified at a July 6 congressional hearing in Long
Beach,
Calif., believes the proposed suspension is the second personnel action
taken against him in retaliation for speaking out about alleged
mistreatment of claimants.
The first, he said in a Sept. 29 interview with Federal Times,
was his
reassignment to the longshore program about a year ago, from the
branch of hearings and review, which decides federal employees'
claims.
It was while working as a hearing representative that Perez
wrote, in
the summer of 1997, the draft decision at issue.
The congressional panel that held the hearing, the House Reform
and
Oversight subcommittee on government management, information and
technology, since has received a large number of calls and packages
from injured workers, some with similar complaints about the office,
staff member Matthew Ebert said.
The subcommittee does not have the staff to look into each case
and
is encouraging people to contact their own congressional
representatives, he said.
Rep. Stephen Horn, R-Calif., chairman of the subcommittee, is
considering holding a follow-up hearing in Washington, D.C., Ebert
said.
History of Good Ratings
Perez acknowledges releasing the information, but on his lawyer's
advice, he declines to say to whom.
A claimant, Susan Yake, testified at the July hearing that Perez
had
written a decision in her favor that his director criticized and asked him
to change. Yake's case was assigned to another hearing representative
after Perez was transferred, and she received another hearing in
March. Her claim, based on being harassed and assaulted by a
co-worker at the Navy hospital in Bremerton, Wash., is still pending.
"I believe that they're using her to harass me," Perez told Federal
Times. "Her case has been wrongly denied twice because of their
efforts to get to me."
Matt Losak, a spokesman for the Labor Department, has said the
agency cannot comment on personnel actions because of the Privacy
Act.
The agency said the charge against Perez is serious enough to
warrant firing him, but officials considered his more than 20 years of
service and "highly effective" performance ratings with no previous
discipline except counseling, according to the Sept. 17 charging
memorandum from Shelby Hallmark, OWCP deputy director. The
memo is Perez's notice of the agency's proposal to suspend him.
Perez said he has received "highly effective" and "outstanding"
ratings
throughout his career, which has included stints in other areas within the
Employment Standards Administration.
"I've been a valued employee," Perez said.
Backs Tales of Abuse
Perez said the agency, under periodic attack by Congress for the
costs and level of benefits, has lost sight of fairness as it has tried to
control the amount paid out and preserve the office. He said the office
has sacrificed quality decisions for timely ones.
Perez's observations about how claims are handled corroborate
many claimants' complaints going back years about the process.
Witnesses at the hearing alleged being forced to see doctors who
challenged their own physicians' conclusions without examining them.
They also complained about lost paperwork, rude treatment and slow
service.
Once a federal employees' claims examiner himself, Perez said he
does not blame the examiners because they are overworked, in an
awkward adversarial role, and follow policy from management.
Michael Kerr, deputy assistant Labor secretary, said in his testimony
at the hearing, "It is the nature of large administrative systems that
problems develop," but "Our record shows we do a very good job,
and . . . we are evolving and improving in measurable ways."
Only a small percentage of the approximately 170,000 claims
submitted each year is denied, Kerr said. And an even smaller
percentage is appealed, demonstrating a good balance between the
need for prompt response and the development of evidence, he said.
Helping injured people get back to work is not a disguised way of
denying them benefits to which they are entitled, Kerr said.
'Not a Crusader'
Perez questions the timing of the proposed suspension and his
previous reassignment.
Yake made Perez's draft decision part of the record during her
second hearing in March, so management knew then it had been
released. But the agency did not propose suspending him until
September, about two months after the hearing.
"I think the timing of this is very suspect," said his
lawyer, Elizabeth
Newman of Washington. "That has to be something other than
coincidence."
Perez was reassigned shortly after writing the draft decision.
"It was as if I was some kind of thief," Perez said of his
reassignment, when he was locked out of the computer and told to
leave all his cases behind.
Labor's inspector general office, which looked into several of
Perez's allegations and found them unsubstantiated, said it is not
improper for management to review hearing representatives' decisions
because they are not independent judges.
The hearings branch chief explained to Perez when he started that
his decisions would be reviewed, according to the charging
document.But Perez said management has co-opted the impartiality of
the branch, which he said should be under the Labor secretary, not
part of the federal employees' division.
"There's clearly a conflict of interest there," Perez
said.
Perez said the IG office rushed its investigation to have its report
ready in time to be part of the agency's response during the hearing.
Perez has written some decisions critical of the office. But Perez did
not have a reputation as a "softie," prone always to rule in claimants'
favor, Newman said.
Perez's situation has been publicized on an Internet Web site for
a
group of workers' compensation claimants and recipients called "Fedup
Feds." The group describes itself as an advocacy organization. Barb
Sweeney, a retired postal employee, maintains the site, which includes
references to the hearing and Perez, and information about claim forms
and office regulations. The site also serves as a forum for angry
members.
Perez and his lawyer declined to comment on the Web site.
"I'm not a crusader," Perez said. "I'm moving on except to defend
myself."
Perez is required to respond to the charging memorandum within 10
days of receipt, a deadline that he can request be extended.
Kerr then decides on the proposed suspension.
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