During this whole period a Claimant is keep in the dark. However, when the proposal to terminate or reduce benefits is finally released, a Claimant is provided less than 30 days to assemble evidence to rebut the proposal. In many cases, a Claimant cannot even see a physician during this period, let alone have a medical report written and submitted. Since the opinion of the Claimant's treating physician is often discounted, a Claimant is at a further disadvantage since he or she must try to arrange an examination by a totally new physician. This imbalance is clearly not equitable and DFEC's rationale for its inequitable procedures is revealing.

     When confronted with the fact that Claimants are not receiving 30 days to correct deficiencies in their claims as required by the regulations, Director, DFEC Markey stated(*88)

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     When numerous decisions are set aside because of evidence later submitted, Director Markey's characterization of requests for extension as "frivolous" appears baseless. Although the data supports the conclusion that these requests are not "frivolous" Director, DFEC Markey states that "the office's high standards for timely adjudication militate" against them. From this comment it appears that, in today's world of lowered expectations, it is more important for Director Markey that adjudication gets done at all, let alone done well. In light of the enormous remand rate, it is obvious that adjudications are not being done well. There is no doubt that a remand rate of 45% represents a significant DFEC Failure.(*90)

     Director, DFEC Markey also makes the following conclusory statement: "[i]t does not appear that the 30-day overall time frame for requesting and submitting information has been burdensome to Claimants." He does not provide any basis for this assertion. However, when 55% of remanded cases are remanded prior to hearing it means either that the initial "timely adjudication" was incorrect or that additional evidence has come in between the date of the decision and the date of the remand. This places Director Markey on the horns of a dilemma. if in fact Claimants are provided sufficient time to submit requested information, then 45% of these "timely adjudications" were incorrect when rendered. An amazing statistic. If, on the other hand, these "timely adjudications" are in fact rendered before the requested information can be submitted, then there is something fundamentally wrong with the arbitrary and capricious time standards.

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     Director, DFEC Markey's January 27 memorandum also acknowledges that the current system does not provide a Claimant with at least 30 days to respond as is required by the regulations.  Incredibly, he then states: [t]he draft revision to OWCP's regulations addresses this point by stating that 'the Claimant will be allowed up to 30 calendar days to submit the evidence required."' Under the current regulations, Claimant's are granted a minimum of 30 days to submit evidence. Under the draft regulations, Claimant's are granted a maximum of 30 days.(*91) Perhaps I am misunderstanding, but how does granting Claimants less time, address the problem of insufficient time to submit evidence?

     The 30 day period appears to be DFEC's attempt to guarantee procedural due process. However, the 30 day period is not mandated by statute and, in light of the enormous remand rate, appears arbitrary, capricious and an abuse of discretion. It is clearly unfair and inequitable to allow a mechanical application of procedural due process to deprive injured employees of the more fundamental right to substantive due process (*92)

     Even though many incorrect decisions are set aside and the cases remanded to the District Office for remedial action, this is not an equitable result. While DFEC has not provided data on the length of time it takes to remand a case prior to hearing, it is reasonable to assume that it takes several months. In addition, Acting Director Hallmark has testified that it takes an average of 8 months to have a hearing and receive a decision. Of course deserving Claimants, who would otherwise be receiving benefits, are without benefits for this period,

     A more equitable way to address this problem would be to reengineer adjudication process to insure that decisions are correct when rendered and, of equal importance, to quickly revise incorrect or premature decisions.

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Claimants Do Not Receive Timely Resolution of
Improperly Denied Claims

     Section 8124(b)(1) of the FECA states that "[w]ithin 30 days after the hearing ends, the Secretary shall notify the Claimant in writing of his further decision and any modification of the award he may make and of the basis of his decision." The notice sent by Hearings and Review (H&R) to Claimants who request a hearing states: "[i]f you have requested an oral hearing, and it is determined that the case is in posture for such, you can expect the case to appear on a hearing docket in approximately six to eight months." Hearing Representative have 75 calendar days from the date of the hearing to release their decisions. Therefore, Claimants are not receiving notice of the results of the hearing within 30 days of the hearing.(*93)

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     As noted in Table 5 above, H&R has an enormous backlog of work, This backlog has materially contributed to the substantial delay in the hearings process. Pre-hearing remand cases represent a very significant source of this backlog. example, the data in Table 4 establishes that, from FY88 to FY96, pre-hearing remand cases represented, on average, 25% of H&R's annual merit decisions, and 2.6 person years of work. Similarly, as documented in Table 5, from FY92 to FY96, pre-hearing remands represented 12% of the total hearing requests received by H&R, and 82% of H&R's annual disposition deficit. In fact, since 1992 the accumulated backlog in H&R has swollen to more than 5,000 cases, representing over 16 person years of work. Pre-hearing remand cases have represented 82% of this cumulative backlog. Diverting scarce resources to this superfluous category of cases means that H&R cannot timely process cases truly needing an oral hearing. Pre-hearing remand cases are superfluous since they represent cases where the decision is so obviously flawed that no additional evidence is needed to reverse it. Pre-hearing cases also contain evidence submitted in response to a District Office request but which has not been processed.

     These facts are well known to Director, DFEC Markey and Deputy Director, OWCP 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, they have chosen to emphasize the timeliness of decisions at the expense of the quality of the decisions. While DFEC can truthfully say, in OWCP Annual Reports, that District Offices are rendering timely decisions, Director, DFEC Markey dishonestly conceals the fact that large numbers of these decisions are wrong.

     It is also easier for Director, DFEC Markey to minimize the enormous backlog in H&R since this is just one Office among many District Offices and since he can emphasize statistics showing that the District Offices are rendering timely decisions. - Nevertheless, the enormous backlog in H&R, swollen by premature and facially incorrect denials, has materially impeded the swift resolution of improperly denied claims,

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     Even when a Claimant receives a decision reinstating benefits, he or she is not made whole. Deprivation of benefits for the extended periods of time associated with delays in the hearing process can have catastrophic effects which cannot be remedied by the mere payment of compensation. It is not unusual for this improper deprivation of benefits to cause injured employees to lose all their resources and sink into poverty.

When the FECA was amended in 1974, Congress stated

[i]t is essential 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. The Federal Government should strive to attain the position of being a model employer.(*94)

     However it appears that the Federal Government is not a model employer and the agency responsible for insuring that Federal employees are treated in a fair and equitable manner has neglected its responsibility. Instead of a quick resolution, improperly denied cases often languish for more than a year, both in the District Office and the H&R, until a hearing is actually held and a decision rendered.

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     Furthermore, the reconsideration process is not timely. Although the Procedure Manual states: "[t]he goal for issuing reconsideration decisions is 90 days from receipt of the request." (98) this is not adhered to. In fact the process takes so long that the delay affects a Claimant's other appeal rights. The ECAB will accept appeals filed up to 1 year from the date of the last merit decision. If a reconsideration decision is delayed beyond one year, the Claimant's right to review of the original decision by the ECAB is abrogated.

     A program where many of its decisions are overturned when appealed, where there are significant delays is reversing improper decision and, as result, where there are significant delays in the payment of compensation, is not streamlined to provide customer service.

DFEC Does Not Treat Claimants in a Fair and Equitable Manner

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