Reform Agenda -- FedupFeds
Report of Injured Federal Workers
Submitted at the hearing of the
House Government Reform and Oversight Committee,
Government Management, Information and Technology Subcommittee, May 28, 1999
http://fedupfeds.org/reform.htm |
FAILURES OF OFFICIAL
"CUSTOMER SERVICE" REPORTS
| "customer service" |
The alleged OWCP "Customer Service Plan" is found at http://www.dol.gov/dol/esa/public/aboutesa/cust-serv-pln/owcp/fecacsp.htm
. But none of the "customer service" surveys or audits have asked how well
claimants are actually getting the protections that Congress intended in passing the
law. In fact, these official reports do not even acknowledge that to be a valid
goal. Nor have they surveyed the large percentage of claimants who have given up on
appealing their claims when first denied, to get feedback on their reasons for not
appealing. Mr. Perez has questioned the reason for official indifference to this.
Their own evidence shows that they focus on how long it
takes OWCP to answer the phone, how much money they are saving the agencies on injury
claims, how much may be wasted, and how many claimants are being returned to work.
OWCP is quite sensitive to the needs of the employing agencies, because they consider the
agencies to be their "customers".
OWCP's alleged "customer service" plan
apparently is based on a 1995 survey, and they find only three points for possible
improvement --" Two of these involve communications and one pertains to the
adjudication of occupational disease claims." They fail to see a single
one of the problems that our survey indicates is systemic.
However, OWCP admits injured workers aren't told how
to satisfy their burden of proof, in their Customer Service Plan: ". . . we need to
do a much better job of informing injured workers what the adjudication process entails,
the type of evidence they need to supply, and the target timeframes we strive to meet in
adjudicating their claims. Goal: We will begin to notify employees filing
occupational illness claims of these evidentiary requirements, what they can do to speed
the process . . .". "Begin to notify" ? No further proof
of the adversarial nature of the process is needed. |
| Who are their "customers" anyway? |
They consider the employing agencies to be their "customers" on an equal footing
at least with injured claimants: "The program's customers include both injured
workers and their employing agencies". This is found in their Mission
Statement. This seems to be a shortened version of their Customer Service Plan.
The 1994 GAO/GGD-94-67 was done in response to
widespread allegations of doctor shopping by OWCP. While they did not find doctor
shopping as bias against claimants, they were not focusing on second opinions which are
not subject to impartial rotation in the PDS system (page 5 of report). And of
course, second opinions are wrongly used in place of IMEs routinely.
GAO and IG reports and "customer surveys"
were simply self serving, too limited, and not based on independent research or free input
from injured workers themselves as is our survey. The report about Mr. Perez'
testimony was hardly more responsive. Based on reports furnished by OWCP,
the 1998 report from the Subcommittee on Workforce Protections shows they apparently not
aware of any reports of problems with injured workers getting the protections that the law
intended. The only action in 1998 apparently was a minor technical ammendment. H.R.
3096 was signed into law October 9, 1998. It became P.L. 105-247. |
CAUSES OF FAILURE OF THE
SYSTEM UNDER THE FECA
| Lack of accountability |
The FECA as written leaves OWCP accountable to no one for its basic mission, that of
providing certain protections to injured federal workers. Penalties that are
provided for wrongdoing against claimants appear to be unenforceable. Injured
workers have no recourse to the courts to compel their agencies or OWCP to comply
with requirements of the laws or regulations meant to protect them. |
| Agency priorities |
Agencies under pressure to cut costs and meet goals in performing their own missions
automatically come into conflict with the intent of the FECA and needs of their injured
workers. Agency managers are not penalized for violations against their claimants,
for falsification, coercion, delays, or retaliation; rather the incentives work against
reporting injuries and properly processing claims. Bonuses for lowering injury
claims create an adversarial system on a personal level. Claimants commonly report
to us that the mere filing of the claim instantly guarantees a hostile work environment
for them. When OWCP or agency IGs are informed of this, nothing can be done even
though they violate the government employees code of conduct. |
| Burden of proof |
The system places all burden of proof on injured workers --who are not attorneys and must
deal with a complicated bureaucracy-- without informing them as to what is required or
lacking in medical documentation. Then OWCP focuses on preventing
"fraud" (which turn out to be almost zero by their own admission). This is
absolutely adversarial and argues for legal recourse. OWCP and the employing
agencies accept no responsibility whatever for determining whether, in fact, a claim is
valid and medically supported; they consider their role to be finding ways to deny claims
and cut costs for OWCP and the agencies. OWCP does not play a neutral or
objective role in claims |
| Regulatory leeway |
The FECA leaves OWCP (or Secretary, DOL) enough leeway to make CFR regulations and
internal directives that are adversarial for claimants, effectively rewriting the law to
suit the agencies which will ultimately pay the bills. There is no provision in the
law for anyone to challenge these regulations as proper under the law. |
| Bureaucracy |
Unrealistic workloads and poor working conditions in many OWCP offices for those handling
claims below the managerial level. Besides the issue of basic fairness to those
workers, their working conditions cannot foster efficient, timely claim handling, and they
result in endless errors and confusion. |
RECOMMENDATIONS FOR
REFORM
| Rewrite the FECA |
The reports from injured workers themselves indicate the kinds of reforms which are
needed to carry out the intent of the law. Mr. Perez' own recommendations are
well-informed and to the point. However, they cannot be put into practice without
changing the CFR which the Secretary, DOL, has sole authority over under the FECA.
We do not feel this will be done voluntarily. The needed changes reported
by injured workers as well as Mr. Perez must then be written into the law, the FECA and
related laws, as required. (The use of the words "should",
"can" and "must are used interchangeably here since all these
recommendations must be writen into the law itself, without misinterpretation.) |
| Recourse to courts |
The right to enforce the law through the courts is not available under present law, and
this recourse must be made available to the victims if the law is to have
meaning. The present system demonstrates how much the law means without it.
Simple fairness dictates the need for legal recourse in any denial of due process, claim
or treatment denial, or lack of reasonable accommodation for medical conditions on the
job, AND without the years it takes to exhaust the administrative processes. While
informal hearings should be retained, waiting for ECAB or EEOC is not a credible
alternative, and justice delayed is justice denied. (This does not involve
reverting back to a fault-finding system of all or nothing.) Further, claimants must
be allowed to challenge provisions in the CFR they feel are in conflict with the spirit of
the FECA or Constitution.
Ideally, no one should need an attorney so long as
officials and agencies follow clear procedures and requirements. But the threat
of civil recourse is needed to enforce the law and procedures. Since everything
is too complicated in the present system, the civil recourse needs to be based on a
simplified process with all options, requirements, and legal obligations clearly explained
in writing to injured workers at every step, as well as their employers and medical
professionals. |
| Liability for wrongdoing |
Managers and officials directly responsible for regulatory violations against a claim
should be held personally liable under the law. Realistic attorney
arrangements must be a part of the reforms if legal recourse is to be realistic, with
damages under appropriate circumstances. Actual agency negligence should be
actionable in court separately subject to damages, attorney fees, and court costs, as
should agency discrimination on the basis of handicap, or refusal of reasonable
accommodation as defined by current regulations, without exhausting administrative
channels. Claimants must have the right to challenge any CFR rules or policies
in court as contrary to the intent or letter of the law. |
| Fair investigation of claims |
OWCP must be given the specific obligation to investigate and appraise both sides of
claims equally to determine the merits for and against claims. This extends to
their use of second opinion doctors and IMEs. The "rehab nurse" program
should be outlawed immediately. R.I.P. Mr. Perez discussed this in the context of
the FECA. |
| Guarantee medical treatment without delay or interference |
OWCP authorizations and health insurance arrangements and laws must be changed so that
no one has testing, treatment, or pain relief delayed for months or years awaiting the
outcome of a claim. Insurance should pay pending the outcome, with the costs
charged back to OWCP upon claim approval, with interest. This should help to
avoid the "cost shifting" and place the responsibility for injuries and
occupational exposures where they belong, with the agencies. It should also stop the
flight of competent physicians from OWCP cases. The prompt payment law should
apply to treating physicians. Under this system, claimants should continue filing
routinely as needed for treatment under their insurance, with all accepted claims and
costs charged back to the employing agency or OWCP as appropriate. The insurance
companies should be the "gatekeepers" of what is reasonable and necessary tests
and treatment in each case, not OWCP. (We can't approve of all the problems with
insurance coverage, but the injured shouldn't get less than they would under
their insurance if it were not job related.) Claimants should not be billed for
deductibles or copayments unless and until claims are denied and appeals exhausted. |
| Level the field |
Would this create an adversarial system between the health insurance companies and OWCP?
It's already an adversarial system between OWCP and the lone, isolated injured
worker. It would just level the playing field, with the big boys on your team. |
| Combine forms |
Without the different rules for COP and medical authorizations for traumatic and
occupational claims, there would be no need for two forms, CA-1 and CA-2, only one.
No CA-16 authorization would be needed from the employer--and no opportunity for
obstruction and delay on their part as well. |
| Filing forms to OWCP |
All claim forms should be filed directly to OWCP instead of having to go through employing
agencies, and OWCP should then requrie the agency information directly from the
agency. These requirements should be posted conspicuously in all federal workplaces,
along with hotline numbers to get claim forms as needed. |
| Comp automatic |
To minimize the impact of delays and errors, injured workers should be paid existing
income replacement benefits from the beginning of periods of disability, automatically,
pending outcome of the claim. If not accepted when appeals are exhausted, the
overpayment can easily be collected from federal workers. Or as an alternative,
claimants should be allowed to borrow against their retirement or FERS in such cases.
Whichever method is implemented, it would minimize the cost-shifting to SSD and
FEHB, by not forcing the claimant to go weeks or months without income. This does not
entail any increase in actual benefits. |
| Hearing in 90 days |
When an informal hearing does not occur within 90 days from the date of appeal, the
claimant should be paid full replacement income and benefits until the date that a
hearing is held and decision rendered. |
| Schedule awards |
Schedule awards should be updated to be realistically based on current medical and
occupational information, and the means of determining them should be spelled out
according to accepted medical standards. |
| Time limits-claimants |
The time limits imposed on claimants must be more flexible to allow them reasonable
opportunity under the circumstances to get needed documentation and/or testing to support
their claims, at their own option. This is not the case presently, as Mr. Perez has
explained. |
| Treating physician |
The standards of proof for accepting claims and periods of disability must be made
equitable as Mr. Perez has outlined. The treating physician must be given greater
weight, all other things being equal. Barring serious medical or legal questions
to resolve, the treating physician's report should be considered probative. |
| Changing physicians |
Injured workers should have more leeway to change treating physicians under certain
circumstances. When disabled workers file for all available options, medical
evidence that is accepted for SSD should be accepted for OWCP without the duplicate costs
of repeating tests etc. |
| Second opinions |
Medical conflicts (when they arise in spite of giving the treating physician
greater weight) must always be settled by IME's, not by a secret process, and they
must be chosen by fair and open methods. For IME appointments, the claimant
should be given the same information in writing as the IME, as well as information on
the doctor's qualifications. The same should apply to any second opinion
appointment. As Mr. Perez has pointed out, the worker is cut out of the process when
OWCP and doctors have private communications, and the Statement of Accepted Facts can be
completely wrong. Second opinions ordered by OWCP should not be the basis for
denying claims or cutting off benefits; in medical conflicts, only IME's can be allowed to
resolve medical questions, as Mr. Perez has argued. |
| Fitness-for-duty |
Agencies should be barred from requiring fitness-for-duty exams in any OWCP claim or
return to work question. |
| Rehab options |
Rehabilitation services prescribed by the treating physician, at the claimant's option,
should be selected at the claimant's option and paid at the prevailing local rate.
No compensation should be stopped for failure to complete rehab or land a job without a
hearing first. |
| Ex parte communications |
In any hearing, the appellant's complete case file should be sent
to him or her a specified number of days before the hearing is scheduled. All paperwork
exchanged by any of the parties in the case must be accompanied by immediate copies to the
injured worker by certified mail. This must include all pertinent information including
therapy records and material sent to and from second opinion doctors and IMEs |
| Medical controversies |
Controversial or questionable diagnoses or treatments should be examined publicly for
approval by independent medical commissions (with input of groups affected), and
reasonable standards applied in the interest of the patient--the injured worker. The
treating physician should be given wide latitude in diagnosis and treatment authorization
without delay, and this consideration must override insurance company guidelines by law. |
| Kasza excuse |
The easy, cost-cutting excuse of "national security" should not be stretched to
withhold crucial evidence of toxic exposure and accidents needed to validate claims.
There is no way under the Kasza case mentality (mosaic theory) to even investigate how
many thousands of loyal federal workers have been and will be summarily denied all
coverage under the FECA. ( 4 stories on it in Las Vegas Sun, just go to that link and type Kasza
in the search box ) |
| Reopen closed claims |
To remedy gross injustices under the present system, a plan should be devised to review
and reopen closed cases that had any medical substantiation, for the past several years,
to consider them de novo under the new regulations and procedures. |
| Give them more help |
Proper funding and staffing at the clerical level in OWCP offices should be mandated and
monitored by the Secretary, DOL in consultation with AFGE. Working conditions and
workloads nationwide should be investigated and remedied, for the benefit of the
workers in OWCP themselves as well as the claimants. |
| Posting the rules |
All rights and requirements should be posted conspicuously in every federal workplace,
with an ombudsman hotline, and every notice of penalties for fraud should also carry
notice of civil liabilities and penalties for managers and agencies as well. All
these reforms written into the law will avoid most drawbacks of the old tort system and
the present OWCP system as well. |
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