As noted above, the U.S. Postal Service, with the complicity of DFEC officials, has filed false information in cases and has failed to submit required reports and induced injured employees to forego the filing of necessary reports. The U.S. Postal Service is not the only agency involved in this type of behavior. DFEC should be more aggressive in addressing agency abuses.

     Consideration should be given to strengthening § 1922 by including the following language, taken from 33 U.S.C. § 931(c):

A person including, but not limited to, an employer, his duly authorized agent, or an employee of an insurance carrier who knowingly and willfully makes a false statement or representation for the purpose of reducing, denying, or terminating benefits to an injured employee, or his dependents ... shall be punishable by a fine not to exceed $10,000, by imprisonment not to exceed five years, or both.

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Provide More Realistic Time Frames for Submission of Evidence

     It is obvious that the 30 day time frame for submitting evidence in response to deficiency notices and termination notices is too short. Since the 30 day period is not mandated by statute, and since it has caused significant numbers of claim to be improperly denied, it appears that selection of this 30 day period was arbitrary and capricious and represents an abuse of DFEC's discretion.(*186)

     DFEC should monitor how long it actually takes to send deficiency notices and receive the requested information. DFEC should also monitor how long it takes to submit evidence in response to a termination notice. Based upon this data DFEC should establish a more realistic time frame for submission of evidence. This will eliminate premature decisions which inevitably result in remands. It will also prevent injured employees from being wrongfully deprived of benefits.

     Since the Statement of Accepted Facts (SOAF) is one of the most important documents a Claims Examiner prepares and since the SOAF has a profound impact on the development of the medical evidence, Claimants should have more opportunity to comment on the accuracy of this document.

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     DFEC routinely contracts with the same physicians to provide second opinion medical reports (SECOP), It then relies on the opinions from these physicians to reduce or terminate benefits. This does not appear to be fair or equitable. Section 8123(a) of the FECA requires DFEC to obtain a third opinion when the opinion of its SECOP disagrees with the opinion of the Claimant's physician. The legislative history of this provision does not reveal its purpose. However, this provision may have been put in the Act to protect Claimants by preventing the Government from denying claims using medical evidence it obtained using its vastly superior resources, This interpretation is certainly consistent with the Act's humanitarian purpose and also is consistent with the well established rule that the FECA, as a remedial statute, should be broadly and liberally construed in favor of the employee to effectuate its purpose and not in derogation of the employee's rights.(*187)

     DFEC should comply with the statute and appoint a third physician when there is any disagreement between the SECOP and the Claimant's treating physician, This will remove even the impression manipulation of the medical evidence.

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Take Steps to Prevent Erroneous Decisions

     As noted above, in a significant number of pre-hearing remand cases evidence has been submitted between the date of the District Office's decision and the date of the remand. A better utilization of resources would have the more than 450 District Office Claims Examiners(*189) resolve these cases, prior to the hearing date, rather than H&Rs 25 Hearing Representatives. As noted above, these cases represent 2.6 person years of work for H&R; however, having District Office Claims Examiners handle these cases would involve, at most, 2 additional cases(190) per Claims Examiner per year.

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     The process for handling cases where a hearing request has been received should be modified as follows:

a. All requests for a hearing would be forwarded to H&R, where they would be recorded by date and hearing city. The case would remain in the District Office.

b. Approximately 1.5 months prior to the date the case is assigned to a Hearing Representative for a hearing, the case would be requested from the District Office.

c. District Offices would be obligated to reconsider its decision based upon any evidence submitted prior to sending the case to H&R. This would be required in every case.(*191) and not just those in which the Claimant specifically requests a reconsideration.

d. In order to monitor compliance, the DFEC Accountability Review Standards should be specifically modified to include a standard dealing with pre-hearing remands.

     DFEC's Strategic Plan should be modified to include the following Strategic Goal and Objectives

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     Based upon data contained in OWCP's Annual Report, and summarized in Table 5 above, H&R needs additional staff to handle the existing workload. In the alternative, the incoming workload must be reduced. Otherwise, the backlog, which would have taken 16.4 person years to eliminate at the end of FY 1996, will only increase. The H&R backlog has, in fact, increased by an average of 807 cases per year over the past 5 years. Reengineering the adjudication process, as recommended above, will help address the increasing H&R backlog and allow the hearing process to be completed in less than the 8 months it currently takes. Resolving contested cases sooner will also lessen the amount of work needed to maintain the case pending resolution.

     DFEC officials routinely interfere with the impartiality of the hearing process. Regional Directors and District Directors call Director, DFEC Markey and complain about decisions. California Regional Director Donna Onodera called Director Markey to complain about my decisions which severely criticized abuses in the San Francisco District Office. She reportedly told Director Markey that she never wanted me to come to California to hold hearings. Thereafter, Director Markey began harassing me. This is clearly inappropriate.

     Director Markey should be prevented from interfering with the hearing process. He should be prevented from reviewing the decisions of Hearing Representatives. To prevent DFEC interference, the Branch of Hearings and Review should be moved to the Office of the Secretary of Labor. This is where the Employees' Compensation Appeals Board is located. This would remove even the impression of improper interference with the hearings process.

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     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. As noted above, DFEC officials who are dissatisfied with the decisions of Hearing Representatives simply have the decision reversed. This clearly subverts the impartiality of the hearing process. The authority of the Director, OWCP, as delegee of the Secretary of Labor, "to review an award for or against payment of compensation at any time' should not be redelegated to DFEC. This authority should remain with the Director which would remove even the impression of impropriety.

     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.