Despite this clear statutory mandate, however, the Procedure Manual contains the following instructions:

[t]he findings or opinions of [the SECOP] will often differ from those of the claimant's attending physician. If of equal weight, the differing opinions would constitute a conflict requiring referral to a third physician. This is a time-consuming process(*143) which is not always necessary. Frequently a decision can be reached, by weighing the medical evidence of record without referral to a referee specialist.(*144)

     Efforts to "weigh the medical evidence" have resulted, by inductive reasoning, in abuses of the impartiality of the system. By seeking to invest the opinion of the SECOP with greater weight, in an effort to avoid the statutory requirement to obtain a third, impartial opinion, Claims Examiners have distorted the meaning of medical reports. Director, DFEC Markey promotes these abuses. He and members of his staff routinely travel around the country, to DFEC District Offices, encouraging Claims Examiners to ignore the requirements of § 8123(a) of the FECA. He does this by encouraging Claims Examiners to find that the opinion of the SECOP has more weight than the opinion of the treating physician.

=============================================================

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 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 response to numerous complaints about DFEC's development of the medical evidence Chairman William D. Ford, of the House Committee on Education and Labor, asked the General Accounting Office (GAO) to review how OWCP obtained and used medical evidence. Even though GAO evaluated DFEC's physician selection process and found it unbiased, its report(*145) was deeply flawed and of questionable relevance.

     GAO identified its universe as those cases which were closed and benefits terminated during fiscal years 1991 and 1992. This resulted in a universe of 4,126 cases. However, during fiscal years 1994 and 1995, DFEC reduced or terminated benefits in 4,900 periodic roll cases. This one category of cases represented a 19% increase in the total terminations during the period evaluated by GAO. Between FY94 and FY95, the number of SECOP scheduled shows a positive correlation with the number of periodic roll cases which had benefits reduced or terminated.

     GAO only analyzed cases in which impartial medical examinations (IMEs) were conducted when determining whether DFEC repeatedly used the same physicians for examinations. However, since DFEC has emphasized that IMEs are not necessary, more terminations are based upon the use of SECOPs. Analyzing which physicians DFEC uses for SECOPs would be more relevant to the determination of whether DFEC repeatedly uses the same physicians.

Page 62

=============================================================

     Finally, GAO restricted its universe to closed cases where benefits wereterminated. This neglects those cases where benefits were terminated based upon the improper use of a SECOP and the termination was overturned on appeal. Cases of this type would still be open. As noted in Table 4, above, the remand rate has averaged 45% over 9 years, This means that a large numbers of these terminations, based upon the improper use of SECOPs, were actually incorrect.

     For these reasons, I believe GAO's conclusions are no longer valid. Furthermore, it appears questionable whether GAO's conclusions were valid when made. As noted above, GAO's universe was skewed and did not present an accurate picture of the total process of using SECOPs. Also, GAO did not sample open cases which had a SECOP. During fiscal years 1991 and 1992, the average remand rate was 47%. Therefore, during those years, where the termination of benefits was based upon the improper use of a SECOP, nearly 50% of the decisions were overturned and benefits reinstated. In addition, since DFEC was encouraging Claims Examiners to avoid using IMEs, GAO erred in only sampling bills paid to IMEs when determining whether DFEC repeatedly used the same physicians.

Page 63

Flawed Wage Earning Capacity Determinations

     If a Claimant is partially disabled, compensation is paid based upon the difference between the date of injury payrate and the Claimant's wage-earning capacity. Wage-earning capacity

is determined by his actual earnings if his actual earnings fairly and reasonably represent his wage-earning capacity. If the actual earnings of the employee do not fairly and reasonably represent his wage-earning capacity or if the employee has no actual earnings, his wage-earning capacity as appears reasonable under the circumstances is determined with due regard to-

(1) the nature of his injury;
(2) the degree of physical impairment;
(3) his usual employment;
(4) his age;
(5) his qualifications, for other employment;
(6) the availability of suitable employment; and
(7) other factors or circumstances which may affect his
wage-earning capacity in his disabled condition.(*148)

     Once a District Office determines, based upon medical evidence which can be unfairly obtained, that a Claimant is not totally disabled,(*149) it will proceed to establish Claimant's earning capacity.

     An employing agency may also develop medical evidence, through fitness-for duty examinations, to establish that a Claimant is only partially disabled. Based upon this medical evidence, an agency may offer the injured employee alternative employment(*150) or limited duty.(*151) The employing agency sends any offer of alternative employment or limited duty to the District Office for a suitability determination. The offer must be in writing and include, among other things, a description of the duties to be performed and the specific physical requirements of the position and any special demands of the workload or unusual working conditions.

Page 64

=============================================================

     The District Office evaluates the suitability of the position taking into account the Claimant's physical condition and the duration of the employment offered. If the position is found to be suitable, the District Office advises the Claimant in writing of the suitability determination and gives the Claimant 30 days to either accept the job or provide a written explanation of the reasons for refusing it. All of. the foregoing is the responsibility of the District Office and cannot be delegated to the employing agency. The Claimant's wage-earning capacity is then determined based upon the wages of the suitable alternative position.