to bottom and routinely denies injured employees due process before terminating their benefits. Allow me to provide several examples to illustrate what I mean.Section 8123(a) of the FECA clearly states that the government is required to have an injured employee examined by a third physician when the physician examining him for the government disagrees with the injured employee's own treating physician. This requirement is also contained in § 10.408 of the regulations. However, the Federal (FECA) Procedure Manual states that having the injured employee examined by a third physician is a time consuming process which is not always necessary, a rationale which provides no basis to deny an injured employee due process.

Mr. Markey, and members of his staff, routinely travel around the country, to DFEC District Offices, encouraging Claims Examiners to ignore the due process requirements of § 8123(a) of the FECA. He does this by encouraging Claims Examiners to find that the opinion of the physician examining the injured employee for the government (the so-called "second opinion" physician or SECOP) has more weight than the opinion of the treating physician. Mr. Markey knows that this is not true. He also knows that District Offices, relying on the opinion of the SECOP, routinely deny claims for compensation, where such opinions are deeply flawed.  He obtains this knowledge by reviewing the decisions of Hearing Representatives who hold hearings, under §8124(b) of the FECA, to consider denied claims. These decisions routinely overturn the denial of benefits where a third physician's opinion was not obtained.  According to the most recently available statistics printed in OWCP's Annual Report to Congress, an average of 45 percent of denied cases are set aside after an injured employee requests an oral hearing. Before arriving at my conclusions that this policy is contrary to the plain language and purpose of the FECA and its regulations and based upon questionable case law, I engaged in considerable legal research. When I circulated a draft copy of my legal memorandum, Mr. Hallmark's special assistant, Dennis Mankin, came to me and told me that this sort of research was not what I was Hired to do. He also questioned whether I was neglecting my assigned work to do this research. I interpreted this as a veiled threat to stop inquiring into these matters.

The unforeseen, but nonetheless significant, result of this use of the SECOP's opinion to deny benefits has been to reduce the pool of available physicians.  Claims Examiners, in an effort to enhance the opinion of the SECOP, routinely send follow-up questions to the doctor. These questions are often leading and just as often designed solely to elicit information which then can be used to deny the claim for compensation. Many physicians consider these questions to be an intrusive burden. Indeed, they consider the whole process to be of questionable impartiality. Because of these concerns, many doctors have stopped treating Federal workers' compensation patients. Thus the pool of available doctors has shrunk to those who will give the District

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Offices the opinion they want. This undermines the impartiality of the system and is another reason why the District Offices should follow the statutory mandate to obtain the opinion of a third physician.In addition to these apparent direct violations of the FECA and established procedures, Mr. Markey, with the complicity of Mr. Hallmark, has established a system which regularly denies injured employees due process. Let me explain. Mr. Markey and Mr. Hallmark have 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. Upon first review, the Claims Examiner writes to the injured employee to advise him or her of the evidence necessary to perfect the claim for compensation and gives the employee 30 days to respond. At the end of this period or when the time standard requires a decision, the Claims Examiner will deny the claim if the information has not been submitted (a so-called "burden of proof" denial). An employee may ask for a hearing to appeal the burden of proof denial of the claim. In the period between the time the claim is denied and the time the case is transferred to the Branch of Hearings and Review, the requested evidence may come in. I have seen cases where the information is received in time but is not put into the case file quick enough to prevent the burden of proof denial. However, unless specifically
asked to do so, the District Office Claims Examiner will not reconsider the denial. It appears to be directly contrary to the purpose of the FECA to quickly deny benefits on a procedural basis (burden of proof denial) without at the same time trying to quickly consider the merits of the claim when the evidence is submitted.

However instead of a quick resolution, the case often languishes for more than a year, both in the District Office and the Branch of Hearings and Review, until a hearing is actually held and a decision rendered. As noted above, 45 percent of District Office decisions are overturned when appealed. This is true for both the Branch of Hearings and Review and the Employees' Compensation Appeals Board (ECAB). This results in extensive delays in the payment of compensation, which is directly contrary to the government's efforts to reinvent and streamline operations. The delays also force injured employees into poverty which is directly contrary to the purpose the FECA. It is not unusual for injured employees to wipe out their life savings and lose their houses and he forced into bankruptcy because of lack of timely benefits. These facts are well known to both Mr. Markey and Mr. Hallmark since they receive a steady stream of complaints from members of Congress and others. Although they are aware of the problems caused by premature denials, both Mr. Markey and Mr.Hallmark have chosen to emphasize the timeliness of decisions at the expense of the quality of the decisions. While they truthfully say that the District Offices are rendering timely they dishonestly conceal the fact that 45 percent of these decisions are wrong.  It is easier

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for Mr. Markey and Mr. Hallmark to minimize the enormous. backlog in the Branch of Hearings and Review since this is just one office and since they can point to the statistics showing the District Offices are rendering timely decisions. The enormous backlog in the Branch of Hearings and Review, swelled by premature and facially incorrect denials, has substantially increased the work load of Hearing Representatives (more about this later) and has materially impeded the swift resolution of improperly denied claims. Justice delayed is justice denied. I have heard Mr. Markey and members of his staff brag that 95 percent of claims are paid timely. However, this statistic is no doubt high because the vast majority of injuries are uncomplicated and easily handled. The more serious injuries, and therefore those in which the need for compensation is the greatest, are not handled as quickly. Furthermore, those entitled to continuing benefits regularly have those benefits terminated by the improper use of SECOP's opinions which I have previously explained. Mr. Markey has advised me that 40 percent of injured employees, whose continuing benefits are terminated, never respond. I have trouble believing that all of these employees are not entitled. I find it more believable that a significant number of these employees are tired of fighting with the District Offices and simply give up. I know this is true in a least some of the cases because when I have scheduled hearings the injured employees have told me so. This system is dishonest, and is an abuse of the authority vested in Mr. Markey and Mr. Hallmark to see that injured employees are promptly paid the compensation due them, so that they are not forced into poverty.

Since I am a Hearing Representative, and an attorney, I am more familiar with Mr. Markey's and Mr. Hallmark's violations and abuses in connection with the hearing process. Section 8124(b) (1) of the FECA grants an injured employee, dissatisfied with denial of his or her claim, the right to a hearing before a representative of the Secretary of Labor. This authority has been delegated by the Secretary, through the Assistant Secretary of Labor for Employment Standards, to the Director, OWCP. The Director, OWCP, in turn, has delegated the day to day administration of the FECA to the Director, DFEC and has delegated the hearing responsibilities to Hearing Representatives who Hold § 8124(b) (1) hearings on behalf of the Director, OWCP. However, organizationally, the Branch of Hearings and Review is located in DFEC. I am sure that you can see there is an inherent conflict of interest in this arrangement.

Because of this arrangement, Mr. Markey routinely violates the integrity of the appeals process. As the top official Involved with 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 Mr. Markey has established and their successful performance is measured in part by how often their decisions are overturned. Mr. Markey routinely reviews the decisions of the Hearing Representatives. This is a clear violation

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of the independence of the hearing process since Hearing Representatives are delegees of the Director, OWCP. Furthermore, Mr. 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. The majority of these decisions are in favor of the injured employee since those are the only decisions Mr. Markey and members of his staff closely scrutinize.

As I previously mentioned, in addition to interfering with the issuance of fair decision, Mr. Markey also reverses decisions in favor of injured employees which have been issued. He does this by abusing the authority granted to the Director, OWCP under §8128(a) of the FECA. The Employees' Compensation Appeals Board (ECAB) has criticized this practice of overturning hearing decisions.

Section 8128(a) of the FECA authorizes the Secretary of Labor, at any time, to review an award for or against compensation and revise the award. This authority has been delegated by the Secretary to the Director, OWCP, by regulation. It is readily apparent to any fair minded individual that it is inappropriate for Mr. Markey, as the head of DFEC, to set aside decisions of Hearing Representatives, which go against DFEC. These Hearing Representatives hold hearings as delegees of the Director, OWCP. To interfere with these decisions, which are meant to be de novo decisions, destroys the fairness and the integrity of the hearing process. Mr. Markey should be prevented from interfering with the hearing process and the Branch of Hearings and Review should be placed directly under the Director, OWCP. Furthermore, the regulations, or at a minimum the procedures, should be specifically revised to clarify that the Director, DFEC does not have the authority to modify the decisions of a Hearing Representative under § 8128(a) of the FECA.

Mr. Markey interferes with the fairness of the hearing process with the complicity of the Acting Director, OWCP, Mr. Shelby Hallmark, and members of Mr. Hallmark's staff. Allow me to cite an illustrative example. Mr. Markey, or members of his staff, was dissatisfied with the decision of a Hearing Representative in a particular case. Mindful of the fact that the ECAB has been critical of efforts to interfere with the hearing process, Mr. Markey, or someone at his direction had the hearing representative's decision set aside under § 8128(a) and the injured employee was told that his only appeal right was for another hearing. This is plainly illegal, since an injured employee dissatisfied with a decision, has the right to reconsideration of the decision or the right to appeal to the ECAB. When the Hearing Representative assigned to hold the second hearing objected to this illegal procedure, Mr. Hallmark's personal assistant, Dennis Mankin, inappropriately badgered the Hearing Representative into scheduling the hearing.

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Hearing Representatives object to this interference with the hearing process and at least one has filed a grievance in conjunction with this practice. The handling of these objections illustrate how Mr. Markey and Mr. Hallmark abuse their authority. Mr. Hallmark and Mr. Markey have violated and continue to violate the spirit and the letter of the bargaining agreement. Mr. Markey tries to intimidate Hearing Representatives. I know this because he has tried to intimidate me. This has repercussions on, and has undermined the impartiality of, the grievance procedure contained in the bargaining agreement. Step 1 of the grievance procedure is handled by Mr. Markey, or someone acting under his supervision. Step 2 of grievance procedure is handled by Mr. Hallmark. The inappropriate interference by Mr. Markey in Step 2 of the grievance process, has resulted in numerous grievances going to arbitration. This is due, in large part, because the grievant wants an impartial hearing for the grievance.

In addition to undermining the impartiality of the grievance process, Mr. Markey and Mr. Hallmark routinely retaliate against employees exercising their bargaining agreement rights. This is plainly contrary to Article 3, Section 5 of the bargaining agreement. While this retaliation might appear petty to some, e.g., minute scrutiny of travel vouchers, scheduling of undesirable hearing trips, it is nevertheless relentless and is a further means by which Mr. Markey tries to intimidate employees into doing what he wants. Not only is this intimidation conducted in connection with the grievance process, Mr. Markey, and those under his supervision have tried to intimidate employees into working uncompensated overtime in clear violation of the FLSA.

I am sure you are aware of the continuing dispute regarding whether Hearing Rdpresentatives are entitled to overtime for routine travel required by their assigned duties. This is another example of how intransigence on the part of Mr. Markey and Mr. Hallmark, escalated a grievance into arbitration/ However, the draconian and unreasonable performance standards coupled with the enormous work l/ad assigned to Hearing RepresenTatives has resulted in many Hearing Representatives being forced to work considerable amounts of overtime at night, and on the week-ends. This is done with the!unspoken, but nevertheless full!knowledge of Mr. Markey and members of his staff. A fundamental duty of a manager is to insure that the work assigned can be reasonably
completed in the time allotted. The amount of work assigned, coupled with the unreasonable and inflexible performance standards and the lack of authorized overtime has caused this violation or the FLSA. Mr. Markey, and members of his staff have been advised repeatedly that the performance standards are unreasonable. Allow me to dxplain.

Each Hearing Representatiue takes 9 trips per year with 35 cases assigned each trip, for a total of 315 cases. Dividing these 315 cases by the total number of work hours in a year, derived by excluding holidays and tile actually spent holding hearings, results in little more than 3 hours per case. These 3 hours -ust be used to review the

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case in preparation for the hearing and then write the hearing decision. This is not enough time to do the wori. Management has been repeatedly advised of this fact but makes irrelevant responses. For example, management has disciplined employees for working unauthorized overtime. This is plainly ridiculous. To assign work which requires more than 40 hours per week to accomplish and to refuse to authorize overtime or reduce the work load, while at the same time holding employees to unreasonable time standards, would cause any reasonable manager to realize that uncompensated overtime is being worked in clear violation of the FLSA.

Management has also responded that not all 35 cases assigned each trip actually go to hearing. However, this response neglects to take into account the fact that cases, not in posture for hearing, are being weeded out and, therefore, more cases are going to hearing. In addition, even those cases remanded prior to hearing must be reviewed and a remand decision written. But this response is also irrelevant because it fails to deal with the fundamental fact that more work is being assigned than can be completed within the allotted 40 hour work week. I know that management, upon being confronted with this violation, will promptly issue a memorandum instructing employees not to work overtime. However, this will be another irrelevant response which does not deal with the real problem which is too much work coupled with insufficient time and inflexible performance standards.

I know these allegations seem incredible. I, myself, am stunned by the extent of the abuses. I also know that Mr. Markey and Mr. Hallmark and members of their staff will seek to minimize the problems. After all, they have a vested interest in maintaining the status quo. They have shown themselves quite adept at confusing the issue with irrelevant and misleading statistics. However, I recommend that you obtain input from others involved in the system before you decide whether or not OWCP needs to be reinvented.

Before you begin your inquiries, however, I recommend that you inquire into my background. I am a 20 year employee of the Department. My entire career has been spent in SEA and OWCP. Over the past 13 or more years, my performance has not gone below Highly Effective in the 4 offices I have worked, including a detail to the Solicitor's Office. I personally received the Distinguished Career Service Award from the Secretary of Labor in recognition of "career service marked by sustained high quality and efficiency."

I am well known to members of your staff including Michael J. Wilson, and your former Chief of Staff Corlis Sellers. I worked closely with members of your staff while in the Branch of Legislative and Regulatory Analysis. I have also worked closely with many others in SEA.

In making an evaluation of these allegations you should solicit input from Federal Employee Unions. Not upper level officials but those local

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representatives who actually assist injured employees with their claims. You should also invite comments from attorneys who represent injured employees and physicians who treat injured employees.

I understand that union officials, who represent DFEC Claims Examiners in the District Office, recently came to Mr. Hallmark to complain about the terrible working conditions caused by the unreasonable time standards. I recommend that you obtain comments from these union officials as well as union representatives of DFEC employees in the National Office and also from Hearing Representatives.

I also know the DFEC has conducted customer surveys which have not been widely disclosed. It would be informative to see what injured employees, who must actually use the system, have said.

It is readily apparent that the present workers' compensation system has many serious and fundamental problems. A first step, in correcting these problems, would be to obtain input from the employees actually doing the work, to find out what the problems are and what are the possible solutions. This is what any responsible manager would do. Instead of taking positive steps to address these concerns, Mr. Markey and Mr. Hallmark irresponsibly waste their time harassing employees.

I am already being harassed for raising these issues with Mr. Markey, in person, and through my hearing decisions. I recently had a 2 hour meeting where Mr. Markey repeatedly impugned my honesty and integrity. Mr. Hallmark's special assistant, Dennis Mankin, has already made a veiled threat to take action against me. I fully expect Mr. Hallmark to further harass me. Nevertheless, I feel compelled to bring these abuses to your attention because I am personally appalled by them and also ashamed that I work in an organization that is so blatantly anti-employee. In July I held a hearing in Rapid City, South Dakota. The injured employee pointed to the inscription on the bottom of the Department's letterhead ("Working for America's Workforce") and laughed in my face. She said: "your agency is not working for Americas injured workers. I felt I could not dispute her and sat there in embarrassed silence.

Respectfully Yours,

Joseph M. Perez
Director's Hearing Representative
CC: Mr. Jeffrey Gaskins

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