The Federal Employees' Compensation Act (FECA) is the exclusive 'remedy by which Federal employees may obtain disability, medical and/or survivor benefits from the United States for workplace injuries. FECA is administered by the Department of Labor's Division of Federal Employees' Compensation (DFEC).

     Workers' compensation law arose out of the frustrations employees and employers experienced with the common law remedies for workplace injuries and deaths. These frustrations were due to the difficulty employees had in obtaining an award for workplace injuries under the tort system; and the inability of employers to make provisions for their financial liability since jury awards were unpredictable.

     Workers' compensation, therefore, represents a covenant. Under workers' compensation law each side gives up something that is available to it under the common law, but simultaneously receives something as well. The employer relinquishes the defenses enjoyed under the common law, but this loss is offset by a known level of liability for work place injuries and deaths. The employee gives up the opportunity for large settlements provided under the common law, but receives the advantage of prompt payment of compensation and medical bills. These tradeoffs make the workers' compensation system acceptable to both parties. However, where either party does not receive the benefits of this covenant, the system becomes unacceptable.

When the FECA was amended in 1974, Congress stated

[i]t is essential that injured or disabled employees of an covered departments and agencies, including those of the United States Postal Service, be treated in a fair and equitable manner. The Federal Government should strive to attain the position of being a model employer.

     However it appears that the Division of Federal Employees' Compensation (DFEC), the agency charged with insuring that injured or disabled employees are treated in a fair and equitable manner, is guilty of misfeasance.

     DFEC's Strategic Plan states that "[flt takes pride in its return to work success, its swift benefit delivery, its cost-effective and people-oriented administration, and its low friction costs and nonadversarial procedures for adjudicating and managing claims." However, DFEC's actions belie this statement. In fact benefits are not swiftly delivered, the administration of the FECA is not people-oriented and DFEC acts in an adversarial manner toward injured employees. Despite the covenant which underlies the workers' compensation principle, and the stated intent of Congress, DFEC has sided with employing agencies, and against injured employees, to lower compensation costs. DFEC has implemented flawed procedures to reduce or terminate benefits and has processed claims in a rigid and inflexible manner.

     To reduce the number of Claimants receiving continuing disability payments DFEC created the Periodic Roll Management (PRM) project which began in April 1992. The function of this Project is to screen the long-term disability roll for cases needing medical examination, medical and vocational rehabilitation, including job training and placement.

     In 1993, DFEC instituted new case management procedures which it called Quality Case Management (QCM). These procedures are aimed at those cases where the Claimant has not returned to work within 45 days of the injury. A registered nurse, under contract to DFEC, works with the injured employee, the treating physicians and the employing agency to clarify the nature and extent of injury-related disability and arrange for the Claimant to return to work as soon as possible.

     Implementation of the Periodic Roll Management Project and Quality Case Management procedures and early nurse interventions have resulted in a 22% increase in the number of hearing requests. Although increased implementation of these procedures have increased the number of decisions appealed, the quality of these decision is poor. The remand rate from OWCP's Branch of Hearings and Review (H&R) has averaged 45% over the past 9 years. Also, there is a considerable backlog in H&R which delays the timely resolution of improperly denied cases.

     In addition to the PRM and QCM procedures which appear flawed, DFEC has established and enforced time standards on the District Offices which result in premature denials of benefits. These time standards require a District Office Claims Examiner to render a decision on a claim within 45 days and to act on a proposal to terminate benefits within 30 days.. These time frames are too short, and are too rigidly enforced, to permit appropriate consideration of the merits of claims.

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     For example, after the initial review of a claim a Claims Examiner will write to the injured employee and advise him or her of any evidence necessary to perfect the claim for compensation. The injured employee is typically given 30 days to respond.  However, when the Claims Examiner drafts the deficiency letter it is not received the same day it is dated. The letter spends some time in the District Office waiting to be mailed. The letter also takes time to reach the Claimant by mail. Therefore, a Claimant actually receives the letter several days after it is dated. Claimant then prepares a response which takes several days to reach the District Office. In fact, when a decision is rendered 30 days from the date of the letter, Claimant has not received "at least 30 calendar days" to respond as required by the regulation.

     Similar problems plague the procedure for terminating benefits. While it may take months for a District Office to develop evidence to issue a proposal to terminate benefits, a Claimant is provided less than 30 days to assemble evidence to rebut the proposal. This imbalance is clearly not equitable. An increase in terminations has also led to an increase in hearing requests. Despite the large numbers of improper decisions, DFEC continues to herald it success in making timely decisions.

     Even though DFEC rushes to deny benefits it is delinquent in resolving improperly denied claims, While a District Office gives a Claimant only 30 days to respond to deficiency and termination notices it takes more than 90 days to reconsider a denied case, Furthermore, it takes more than 8 months to schedule an oral hearing and have a decision issued. It is neither fair nor equitable to quickly deny benefits without also quickly correcting improper denials. The improper denials are caused by several systemic problems with how DFEC administers the FECA.

     A Claimant for FECA benefits carries the burden of persuasion. and must satisfy this burden by a preponderance of the evidence. However, DFEC has increased a Claimant's burden of proof by requiring the submission of evidence which meets the beyond a reasonable doubt standard. DFEC routinely discredits the medical evidence submitted by Claimants because the report is not "so conclusive as to suggest causal connection beyond all possible doubt in the mind of a medical scientist".

     Similarly, DFEC does not apply the "true doubt" rule to factual evidence submitted by Claimants and gives greater weight to the factual statements of employing agencies. Furthermore, DFEC acts in collusion with employing agencies to reduce or deny compensation by accepting false information.

     DFEC's handling of medical evidence is unfair and inequitable. It weighs the medical evidence to determine which opinion is most probative value. However, DFEC routinely discounts medical evidence submitted by Claimant's because it does not establish causal relationship beyond a reasonable doubt.

     DFEC further diminishes the Claimant's medical evidence by resorting to paid consultants (second opinion physicians or SECOPS) who produce medical reports which include opinions requested by DFEC solely to deny claims. These SECOPs base their opinions on flawed SOAFs and leading questions from Claims Examiners. Although the Act requires DFEC to obtain a third opinion when there is any disagreement between the SECOP and the Claimant's physician, DFEC has characterized this as "a time-consuming process which is not always necessary." It avoids its statutory obligation by investing the SECOP's opinion with exaggerated weight and, through spurious reasoning, by diminishing the weight of the Claimant's medical evidence.

     Based upon this flawed medical evidence DFEC proceeds to establish a Claimant's wage-earning capacity. As with so many of DFEC's procedures, the wage-earning capacity determination process has many areas susceptible to abuse. As discussed above, the medical evidence may be selectively developed and evaluated to show that the injured employee is capable of performing some work. DFEC's Strategic Goal of reducing the number of "lost production days" has made this an important objective.

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     Employing agencies also have a financial incentive to develop medical evidence which establishes that a Claimant is only partially disabled. Based upon this evidence an agency will make an offer of alternative employment. However, although that District Office is required to evaluate whether the position is suitable, it does not do so in many cases. Instead the District Office will rely on the agency's statement that the position is suitable. The employing agency often will not make a written offer of alternative employment. Instead, the agency will assure the District Office that they can provide a position which accommodates the Claimant's residual disability. However, without a written job offer, the agency can, and often does, force the Claimant to perform other, medically unsuitable duties.

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     Not content with the harshness of the present inequitable system, DFEC has proposed regulations which would make it harder for injured employees to receive justice. As noted above, injured employees are not given enough time to submit necessary information. As a result, many of their claims are prematurely denied. Where the current regulations provide a Claimant least 30 days to submit requested evidence, the proposed regulations give the Claimant a maximum of 30 days. It does not appear reasonable to grant injured employees less time to submit evidence when they already have insufficient time. Although it is obvious that 30 days is too short a period and should be extended for good cause, the proposed regulation fails to allow for a good cause extension. The proposed regulation also prohibits any extension in the 30 day period to respond to a pretermination notice.

     The current regulations permit postponement of a hearing for good cause. However, the proposed regulations eliminate postponements. This proposal is another example of how DFEC continues to curtail the rights of injured employees. Congress provided oral hearings as a way for Claimants to present evidence in person. The proposed regulation, denying postponements, appears inconsistent with the intent of the FECA to grant an injured employee the right to an oral hearing.

     Congress has mandated "that injured or disabled employees of all covered departments and agencies, including those of the United States Postal Service, be treated in a fair and equitable manner." However, DFEC does not carry out this mandate. In an effort to mollify agency complaints regarding rising compensation costs, DFEC has implemented procedures, of questionable fairness, designed to reduce costs.  This is plainly inconsistent with the workers' compensation covenant. It is also inconsistent with the purpose of the Act. In fact, DFEC is permeated with anti-Claimant bias.

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     Director, DFEC Markey routinely violates the integrity of the appeals process. As the top official involved with the day-to-day administration of the FECA he has a vested interest in upholding the decisions of the District Offices under his authority and direction. These offices carry out the policies that Director Markey has established and their successful performance is measured in part by how often their decisions are overturned.

     Director Markey routinely reviews the decisions of Hearing Representatives. This is a clear violation of the independence of the hearing process since Hearing Representatives are delegees of the Director, OWCP. Director Markey directly interferes with the rendering of fair decisions in favor of injured employees. He does this by trying to intimidate Hearing Representatives into rewriting their decisions and, when this is unsuccessful, actually overturning the decisions. When Director Markey cannot intimidate Hearing Representatives into rewriting their decisions he has them rewritten.

     DFEC should recommit to its mission of providing "swift benefit delivery people-oriented administration ... and nonadversarial procedures for adjudicating and managing claims." This will insure "that injured or disabled employees of all covered departments and agencies, including those of the United States Postal Service [are] treated in a fair and equitable manner."

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