As noted above, in commenting on the development of the evidence, the Employees' Compensation Appeals Board (ECAB) has stated that proceedings under the FECA are not adversarial in nature and that DFEC is not a disinterested arbiter.(*129) While a Claimant has the ultimate burden of persuasion, DFEC shares the responsibility in going forward with the evidence, particularly when such evidence is of the character normally obtained from the employing establishment or other government source. DFEC has an obligation to see that justice is done. The ECAB has also stated that once DFEC has begun investigation of a claim, it must pursue the evidence as far as reasonably possible.

     In addition to eliminating any discussion of the "true doubt" rule, the revised chapter has also de-emphasized the Claims Examiner's responsibility to assist in the development of the evidence and the obligation to see that justice is done. Prior to its revision the SOAF chapter contained the following explicit instructions regarding the responsibilities of the Claims Examiner in developing and evaluating the factual evidence:

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(2)   In the absence of evidence to the contrary, the statements of the Claimant are to be accepted as factual. The fact that the Claimant is an interested party who stands to benefit from the acceptance of the claim may not be used to discredit his/her statements. Credible contrary evidence may consist of testimony from others who are in a position to dispute the facts as presented by the Claimant or by internal logical inconsistencies in the Claimant's statements when compared with the known circumstances of a claim.

(3) Given two sets of conflicting testimony of equal probative value, the examiner should find the facts to be those which give the benefit of the doubt, as to which is the more accurate account, to the Claimant.(*131)

     The revisions to the SOAF chapter have allowed this document to change from a written summary of the evidence into a biased evaluation of the facts. This effort is directly contrary to established case law and is another example of how DFEC does not treat Claimants in a fair and equitable manner.

     DFEC's response to requests from Claimant's and their attorney to review the SOAF and questions being sent to the second opinion physician (SECOP) is revealing. In an October 21, 1997, letter, Director, DFEC Markey wrote:

the [SECOP] procedure does not contemplate that a copy of the Statement of Accepted Facts or questions asked of a second opinion physician be provided to a Claimant or representative as a matter of course. Such a provision may result in needless questions, confusion and sometimes disputes, thereby slowing the adjudication process and delaying, in some cases, timely payment of due compensation.

It appears to be a distinction without a difference to distinguish the period before the preparation of the SOAF from the period after its preparation, for purposes of obtaining Claimant input. If providing Claimants with an opportunity to review the SOAF would be helpful in "ensuring that the facts are known to the parties . . .[and] refining the issues for the CE," what is the objection? Giving Claimants this opportunity is especially important since "[t]he SOAF is one of the most important documents a Claims Examiner (CE) prepares.'

     However, Director Markey states that doing so may result in needless questions, confusion and sometimes disputes." What questions are needless when their purpose is to clarify the factual evidence? What disputes are needless when their purpose is to insure that the SOAF is accurate and complete? Because the outcome of a claim may depend on its completeness and accuracy, the SOAF must clearly and fairly address the relevant information." (*134) Fairness and equity demand that every effort be employed to guarantee this.

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     Director Markey also alleges that legitimate questions and disputes will slow the adjudication process and delay the timely payment of compensation. This concern is strange coming from a program which routinely engages in practices which slow the adjudication process and delay the timely payment of benefits.

     The flawed procedures employed in developing SOAFs also have significant repercussions on development of the medical evidence since

[t]he SOAF provides a frame of reference for the physician reviewing the medical evidence and/or examining the Claimant. It allows the physician to place the medical questions posed in the larger context of the mechanism of injury, the requirements of the Claimant's job or the conditions which prevailed in the workplace. It may also provide the physician with a chronology of events after the injury.(*135)

Manipulation of the Medical Evidence

     DFEC's handling of medical evidence is unfair and inequitable. It weighs the medical evidence to determine which opinion has the most probative value. However, as noted above, DFEC routinely discounts medical evidence submitted by Claimants since 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. DFEC has adopted its questionable policy by ignoring a clear statutory mandate

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     As presently written, § 8124 of the Federal Employees' Compensation Act (*136) states: "[i]f there is disagreement between the physician making the examination for the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make an examination.

     However, when passed in 1916,(*137) § 22 of the Federal Employees' Compensation Act read: "[t]hat in case of any disagreement between the physician making an examination on the part of the United States and the employee's physician the commission shall appoint a third physician, duly qualified, who shall make an examination." (*138)

     This language remained undisturbed until 1966, when Title 5, United States Code, was re-enacted "codifying the general and permanent laws relating to the organization of the Government of the United States and to its civilian Officers and employees."(*139) As recodified, § 22 became part of 5 U.S.C. § 8123(a). It then read:

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Section 7, of Pub. L. 89-554, stated:

(a) The legislative purpose in enacting sections 1-6 of this Act is to restate, without substantive change the laws replaced by those sections on the effective date of this Act. .

(e) An inference of a legislative construction is not to be drawn by reason of the location in the United States Code of a provision enacted by this Act of by reason of the caption or catchline thereof. (*140)