U.S. GOVERNMENT PRINTING OFFICE

62–686 CC WASHINGTON : 2000

OVERSIGHT OF CUSTOMER SERVICE AT THE

OFFICE OF WORKERS’ COMPENSATION PROGRAMS

HEARING

BEFORE THE

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,

INFORMATION, AND TECHNOLOGY

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

MAY 18, 1999

Serial No. 106–87

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

DAVID M. MCINTOSH, Indiana

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

MARSHALL ‘‘MARK’’ SANFORD, South

Carolina

BOB BARR, Georgia

DAN MILLER, Florida

ASA HUTCHINSON, Arkansas

LEE TERRY, Nebraska

JUDY BIGGERT, Illinois

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

JOHN T. DOOLITTLE, California

HELEN CHENOWETH, Idaho

HENRY A. WAXMAN, California

TOM LANTOS, California

ROBERT E. WISE, JR., West Virginia

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

CHAKA FATTAH, Pennsylvania

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

HAROLD E. FORD, JR., Tennessee

JANICE D. SCHAKOWSKY, Illinois

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

DAVID A. KASS, Deputy Counsel and Parliamentarian

CARLA J. MARTIN, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT, INFORMATION, AND TECHNOLOGY

STEPHEN HORN, California, Chairman

JUDY BIGGERT, Illinois

THOMAS M. DAVIS, Virginia

GREG WALDEN, Oregon

DOUG OSE, California

PAUL RYAN, Wisconsin

JIM TURNER, Texas

PAUL E. KANJORSKI, Pennsylvania

MAJOR R. OWENS, New York

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California

J. RUSSELL GEORGE, Staff Director and Chief Counsel

BONNIE HEALD, Director of Communications/Professional Staff Member

MASON ALINGER, Clerk

FAITH WEISS, Minority Counsel

(III)

C O N T E N T S

Page

Hearing held on May 18, 1999 ............................................................................... 1

Statement of:

Balen, Beth, administrator, Anchorage Fracture and Orthopedic Clinic;

John Riordan, first vice-president, Council 220, American Federation

of Government Employees; James Linehan, lawyer, James R. Linehan,

P.C.; and Tina Maggio, field representative, Office of Representative

Michael F. Doyle ........................................................................................... 46

Chamberlin, Thomas, former agent of Federal Bureau of Investigation;

Dianne McGuinnes, former employee of Social Security Administration;

and Matthew Fairbanks, Special Agent/Pilot, Drug Enforcement Agency .................................................................................................................... 8

Dalton, Patricia, Deputy Inspector General, Office of Inspector General,

Department of Labor, accompanied by Amy Friedlander, Evaluations;

and Shelby Hallmark, Deputy Director, Office of Workers’ Compensation Programs, Department of Labor, accompanied by Sharon Tyler,

District Director, San Francisco Regional Office ........................................ 221

Letters, statements, et cetera, submitted for the record by:

Balen, Beth, administrator, Anchorage Fracture and Orthopedic Clinic,

prepared statement of ................................................................................... 49

Chamberlin, Thomas, former agent of Federal Bureau of Investigation:

Letter dated April 26, 1996 ...................................................................... 10

Prepared statement of ............................................................................... 18

Dalton, Patricia, Deputy Inspector General, Office of Inspector General,

Department of Labor:

Customer service survey ........................................................................... 340

Prepared statement of ............................................................................... 223

Program performance review ................................................................... 315

Fairbanks, Matthew, Special Agent/Pilot, Drug Enforcement Agency, prepared statement of ........................................................................................ 38

Hallmark, Shelby, Deputy Director, Office of Workers’ Compensation Programs, Department of Labor:

Information concerning budget history ................................................... 247

Prepared statement of ............................................................................... 235

Horn, Hon. Stephen, a Representative in Congress from the State of

California:

Prepared statement of ............................................................................... 3

Statement of John D. McLellan, Jr. ........................................................ 344

Linehan, James, lawyer, James R. Linehan, P.C.:

Additional information concerning a conversation ................................. 206

Prepared statement of ............................................................................... 172

Maggio, Tina, field representative, Office of Representative Michael F.

Doyle:

Letter dated August 4, 1998 ..................................................................... 184

Letter dated October 29, 1998 .................................................................. 180

Prepared statement of ............................................................................... 194

McGuinnes, Dianne, former employee of Social Security Administration:

Transcript of a taped conversation .......................................................... 27

Prepared statement of ............................................................................... 31

Riordan, John, first vice-president, Council 220, American Federation

of Government Employees, prepared statement of .................................... 165

Turner, Hon. Jim, a Representative in Congress from the State of Texas,

prepared statement of ................................................................................... 5

(1)

OVERSIGHT OF CUSTOMER SERVICE AT THE

OFFICE OF WORKERS’ COMPENSATION PROGRAMS

TUESDAY, MAY 18, 1999

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,

INFORMATION, AND TECHNOLOGY,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room

2154, Rayburn House Office Building, Hon. Stephen Horn (chairman of the subcommittee) presiding.

Present: Representatives Horn and Biggert.

Staff present: J. Russell George, staff director and chief counsel;

Matthew Ebert, policy advisor; Bonnie Heald, director of communications/professional staff member; Mason Alinger, clerk; Faith

Weiss, minority counsel; and Earley Green, minority staff assistant.

Mr. HORN. The Subcommittee on Government Management, Information, and Technology will come to order. We are here today

to learn how well the Office of Workers’ Compensation Programs

at the Department of Labor is treating Federal workers who are injured on the job.

The Federal Employees Compensation Act authorizes Federal

agencies to compensate Federal employees when their injuries are

sustained on the job. The act was intended to develop a nonadversarial arrangement whereby Federal employees would be compensated in a fair and equitable way while reducing the Federal

Government’s exposure to tort liability.

Concerned by allegations that the process is unfair and structurally flawed, the subcommittee held a hearing in Long Beach,

CA, on July 6 of last year to evaluate and discuss these issues. The

complaints involved delays in medical authorizations, payments for

medical treatment and the lack of judicial recourse. Some of these

delays were so serious that one injured worker testified that the

waiting period left him financially devastated and nearly cost him

his life.

What was especially evident in all of the testimony were concerns with the customer service issues at the Office of Workers’ Compensation Programs [OWCP]. It was alleged that it is very difficult for a claimant to make contact with the office and that the

response rate is very poor. Testimony suggested that when a claims

examiner has been reached, the Federal worker receives little or no

2

guidance. It has been suggested time and time again that Federal

workers have to turn to lawyers, unions, and congressional offices

to assist them in getting a simple response.

Union members, congressional offices, lawyers and individuals

who are entrenched in the claims process continue to contact the

subcommittee about their negative experiences with the Office of

Workers’ Compensation Programs, the agency responsible for administering claims for injured workers. Some of these people will

not be able to testify today, but will submit statements for the

record.

Senator Slade Gorton of Washington has expressed his frustration in assisting constituents who are struggling with their workers’ compensation claims.

Mr. Gorton will be submitting a statement for the record, as will

Mr. John D. McLellan, Jr., a former Director of the Federal Employees’ Compensation Programs, a division of the Office of Workers’ Compensation Programs. After retiring in 1985, Mr. McClellan,

a lawyer, attempted for 8 years to assist Federal injured workers

through the FECA appeals process. His testimony is especially revealing, because of his close contacts with the OWCP and frustrations in attempting to guide Federal injured workers through the

process. Mr. McClellan’s statement will also be submitted for the

record.

Today, the subcommittee will examine whether the Office of

Workers’ Compensation Programs is performing its mission of administering the Federal Employees’ Compensation Act in a fair,

timely, and efficient manner. The subcommittee will also examine

how well the agency is doing in developing top-of-the-line customer

service. In addition, we will examine the effectiveness and accuracy

of the agency’s customer service survey.

The first panel will include former Federal employees who have

been injured on the job. These witnesses will describe the nature

of their experiences throughout the claims process and the obstacles they have confronted.

The second panel of witnesses consists of professionals who have

dealt with the Office of Workers’ Compensation Programs while

treating, representing or assisting Federal injured workers through

the appeals process. These witnesses represent a medical clinic, a

Federal union, a law firm and a congressional office.

Panel III will include representatives of the Office of Workers’

Compensation Programs, who will discuss improvements in customer service at the agency, and a representative of the Office of

Inspector General of the Department of Labor, who will discuss its

recommendations for improving the medical authorization process

and the agency’s customer service survey.

I welcome our witnesses today, and I look forward to their testimony.

[The prepared statements of Hon. Stephen Horn and Hon. Jim

Turner follow:]

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Mr. HORN. Let me explain how we will go about this. Since this

is an investigating subcommittee of the Committee on Government

Reform, all of our witnesses are sworn prior to their testimony, and

we will begin with panel I this morning. I see they are in their

chairs.

Mr. Thomas Chamberlin, former agent of the Federal Bureau of

Investigation. Welcome, Mr. Chamberlin. Dianne McGuinness,

former employee of the Social Security Administration. Welcome.

And Matthew Fairbanks, special agent/pilot, Drug Enforcement

Agency. We welcome you also.

So if you will stand and raise your right hands.

[Witnesses affirmed.]

Mr. HORN. The clerk will note all three witnesses affirmed.

We will begin with this panel; and if we have time before 12:15,

we will begin with part of panel II, Beth Balen in particular. She

has come the longest distance, namely Anchorage, AK; and we

want to accommodate her. We will try to go all through panel I and

begin panel II, and at 12:15 we will take a break until 2 p.m.,

when the hearing will pick up again.

So, Mr. Chamberlin, why don’t you tell us in your own words, because we have all read the documents, which are very detailed and

very helpful to us, but summarize for us, if you would, because we

would like to enter into a dialog on this in terms of questions and

answers. So don’t feel you have to read everything.

We are going to give you at least 10 minutes here to get through

your statement; and then we will go to the next person, Ms.

McGuinness, Mr. Fairbanks; and then we will have questions.

So please proceed.

STATEMENTS OF THOMAS CHAMBERLIN, FORMER AGENT OF

FEDERAL BUREAU OF INVESTIGATION; DIANNE

MCGUINNES, FORMER EMPLOYEE OF SOCIAL SECURITY

ADMINISTRATION; AND MATTHEW FAIRBANKS, SPECIAL

AGENT/PILOT, DRUG ENFORCEMENT AGENCY

Mr. CHAMBERLIN. Mr. Chairman and distinguished members of

the subcommittee, thank you for providing me the opportunity to

present the barriers I have encountered in the process of filing a

workers’ compensation claim with the Office of Workers’ Compensation Programs with the intent to provide a synopsis of DOL– OWCP’s action for analysis to improve effectiveness and efficiency.

Mr. Chairman, I previously submitted a statement for the hearing today. Therefore, I will briefly summarize the barriers I have

encountered.

I had approximately 25 years of Federal service when I filed my

claim. I had proudly served with the United States Marine Corps

in Vietnam. Following that, I had a brief construction service, and

then I began my law enforcement career with the Washington, DC,

police, metropolitan DC. Then I followed over as a special agent

with the Drug Enforcement Agency, and I concluded my career as

a special agent with the Federal Bureau of Investigation.

In 1993, after having been identified as a whistle-blower for reporting improper Title III wiretap matters, the FBI targeted me for

a character assassination. This is where the problems erupted.

Subsequently, I was removed from the rolls of the FBI in 1994.

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On October 17, 1995, I filed a claim at the Department of Labor’s

Office of Workers’ Compensation Programs, a claim which has yet

to be finalized. The three barriers I encountered are incompetency,

inaction and an adversarial position. The exhibits I will present

will overlap in these three areas.

I encountered these barriers first during the initial filings of my

claim. In summary, it took 10 months, six mailings, unlimited calls,

and action of the Secretary of Labor to initiate the filing of the

claim.

The first exhibit I present is from Chris Brandstrip, supervisory

claims examiner, Department of Labor; and it is dated April 26th;

and it is to the FBI requesting compliance.

Mr. HORN. Without objection, this letter will be put in the record

at this point.

[The information referred to follows:]

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Mr. HORN. Thank you. Please proceed.

Mr. CHAMBERLIN. It is dated in April, and it states that DOL–

OWCP had a copy of the claim completed by Mr. Chamberlin dated

on October 18th and that they request why the FBI hasn’t began

processing it.

The next memo was a memo from Department of Labor, and it

indicates here, this is approximately 1 year later, my entire package from my file was returned to me. And it states, ‘‘This person

is not a Federal employee. We are returning the materials you

have submitted for your disposition.’’ The memo is not signed, does

not bear a name. It just returned the entire package.

That was what I had encountered in trying to file the claim.

Following that, the second segment was and is going to review

process.

After having filed the claim, I had inquired with William Israel,

the claims examiner, to see if he had received my package. There

had been a total of six mailings, all registered return receipt. This

is exhibit 3. And on that the exhibits are signed bearing a similar

signature from a DOL–OWCP employee, and the dates range from

September 1996 up to and including March 1998.

Of significance is the one on November 25, 1996. This is the reconsideration I had submitted to Mr. Israel, and Mr. Israel had

stated he had not received the package. However, it is the same

signature that the other five bear.

Following this is what I have labeled as the notorious Karen

Mendernach homicidal-suicidal memo. After having been targeted

as a whistle-blower, on July 19, 1993, Special Agent Mendernach

prepared a confidential memo to FBI headquarters and FBI management in Detroit stating, ‘‘Chamberlin may be emotionally or

mentally unstable. Several agents believe he may be a danger to

himself as well as to others. The agents requested anonymity.’’

This report I have been unable to obtain for quite a period of

time. My attorneys, my treating doctors had requested it, and I had

pleaded with the Department of Labor, Office of Workers’ Compensation Programs, to obtain the document, but to no avail. However, it was released on August 5, 1998, through a congressional

inquiry from Honorable David Price. And that is the fifth exhibit.

The final exhibit is a memo from Marilyn Preuit, a hearing representative, and this is the denial of my last reconsideration. And

in that she specifically states, ‘‘If you disagree with this decision,

you have the right to appeal before the Employees’ Compensation

Appeals Board.’’

Additionally, I had talked with Stephanie Stone as well as Deputy Director Sheila Williams in regards to do I have the right to

appeal for a reconsideration. Ms. Williams specifically told me that

she did not have that answer and that she would have to do the

research to find out if I had the right for reconsideration.

Concluding, the DOL–OWCP also maintains the position it is a

security matter. I challenge this, for during the Merit Systems Protection Board in December 1994, Administrative Law Judge Nina

Puglia had informed my attorney that it was an open court matter

and that it was open to the public. Additionally, OWCP claims security, while the FBI has only produced approximately 20 pages,

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while the claimant has submitted over 1,000 pages of FBI documents, all of which are unclassified.

In conclusion, Mr. Chairman and distinguished members of the

subcommittee, I would again like to personally thank you for allowing me to participate in this hearing.

[The prepared statement of Mr. Chamberlin follows:]

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Mr. HORN. Let me just pick up one question to clarify the exhibits.

You mention the July 19, 1993, memorandum from Karen Z.

Mendernach to James R. Perez, Equal Employment Opportunity officer. You note that throughout your testimony and call it notorious, and you say they are documenting such an unsubstantiated

allegation. Did this individual, Karen Mendernach, ever talk to

you, ever examine you in any way?

Mr. CHAMBERLIN. No, she didn’t. I had requested this memo;

and, as of August 1993, I had never been able to retrieve it and

the FBI was in denial of the actual document.

Mr. HORN. How large is this document? Is it just this one-page

memo? Are there attachments to it? Or what have you found out?

Mr. CHAMBERLIN. Sir, through various avenues of litigation, I

have determined that there are several other documents surrounding it. I have seen ASAC Stapleton had referred to this; and

during interviews in regard to these agents I have been unable to

obtain any of those documents.

Mr. HORN. So, you feel those documents do exist. People have

based judgments on them, and yet you cannot get a copy of that,

even though it concerns you. And, you would think if they are

going to give a psychiatric exam, you would remember it?

Mr. CHAMBERLIN. Yes, sir.

Mr. HORN. And they didn’t give a psychiatric exam.

Mr. CHAMBERLIN. Correct. On two occasions, I believe it was September 17th and October 6, 1993, FBI management in Detroit had

requested a psychiatric exam, unbeknownst to me. And I don’t

know what documents evolved from that, and I was never required

to submit for a psychiatric exam, and they refused to present any

of the documents. And my doctors have made over 20 requests, as

well as the attorneys, to obtain documents relevant to it; and the

FBI refused to comply.

Additionally, I have pleaded with the Department of Labor, Office of Workers’ Compensation Programs, for assistance. And

claims examiner—I believe it was Gloria Watson had informed me

that she had obtained sufficient documents, and that would be

roughly these 20 pages from the FBI, and that they were not going

to require them.

Mr. HORN. Do you know if Karen Mendernach is an M.D.?

Mr. CHAMBERLIN. No, she is an FBI agent with a Bachelor’s degree.

Mr. HORN. So she doesn’t have a medical degree.

Mr. CHAMBERLIN. Correct.

Mr. HORN. She is not a registered, board-certified psychiatrist; is

that correct?

Mr. CHAMBERLIN. Correct.

Mr. HORN. And yet she is making these judgments.

Mr. CHAMBERLIN. Correct.

Mr. HORN. Do you know if she ever interviewed people that

worked around you and have a list of those interviews somewhere?

Mr. CHAMBERLIN. To my knowledge, she did interview, just referring to the memo. But they requested anonymity. And I addressed

Rita Harrington, the Employees’ Assistance Coordinator, pleading

for these while I was an agent, stating that the FBI was letting me

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carry a loaded weapon around the office with these allegations, but

they all refused.

Mr. HORN. I would think it is a little difficult for agents to request anonymity if they can simply libel a fellow worker, and I

can’t believe that kind of stuff would go on. I am surprised the FBI

would permit that.

If they want to go to board-certified psychiatrists or psychologists, that’s one thing, but just to have particular views of fellow

workers and think you should give that any credence boggles the

mind.

So, you don’t know about any more attachments to that. Presumably, those would be where they say several agents believe he may

be a danger to others as well as to himself. The agents requested

anonymity. Well, you are saying there’s probably a file there somewhere and you have never been allowed to counter that file; is that

correct?

Mr. CHAMBERLIN. Correct, sir. During my dismissal with the

Merit Systems Protection Board we were able to obtain documents

where the ASAC had referred to interviewing a number of agents

and various documentations, as well as to request for the two psychiatric evaluations. However, the FBI has refused all of our requests.

Mr. HORN. Now, you say on page 3 of your testimony the claimant was never ordered to undergo a psychiatric evaluation by the

FBI. Did they ever ask you to undertake such an evaluation?

Mr. CHAMBERLIN. Never, sir.

Mr. HORN. You note that Congressman David Price, one of our

most esteemed Members here, successfully obtained the notorious

memo to which we have referred here; and in August 1998, after

5 years of requests by the employee, treating doctors, attorneys,

and Senators, the FBI continues to withhold several other relevant

documents. Such as what? What do you surmise they still have?

Mr. CHAMBERLIN. Such as the interviews in regards to these

agents. Such as all the documentation—when FBI management in

a division requests a psychiatric evaluation, they must submit written documents to support their request for the psychiatric evaluation and, in turn, FBI headquarters will respond back to them in

a written document.

And so, therefore, there were two requests, and I have been unable to obtain the documents pertaining to the two requests, the

documents that would support the two requests, as well as FBI

headquarters documents that would either support the request or

deny the request.

Mr. HORN. Well, thank you.

Mr. HORN. We will now move to Ms. Dianne McGuinness, former

employee of the Social Security Administration. Ms. McGuinness.

Ms. MCGUINNESS. Thank you. I wish to thank you for the honor

of being here today. I am here to tell you about my frustrations

with customer service at the Office of Workers’ Compensation Programs. There are a few concerns I wish to discuss today, and while

these are only two or three concerns, the magnitude is far greater.

Mr. Kenneth Hamlett, Regional Director of the New York Office

of Workers’ Compensation Programs, threatened to deny my claim

over and over if I went to my Congressmen. He told this to Miriam

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Madden, Director of Senator Alphonse D’Amato’s office, on September 18, 1996; and she called me to tell me so. I submitted a

copy of her statement for the record.

Title 5 U.S.C. 7211, Employee’s Right to Petition Congress,

states, ‘‘The right of employees, individually or collectively, to petition Congress or a Member of Congress, or to a committee or member thereof, may not be interfered with or denied.’’ There are times when I needed congressional assistance and assistance from my union representatives. These times arose when I

could not get through on the telephones at the OWCP because they

were either busy, the mailbox was full, or nobody returned my calls

or answered my letters.

I had problems getting copies of my file. Every few months I

would ask for the current part of my file that I did not have. My

informal requests were ignored, and my formal requests under the

Privacy Act were ignored. I was even referred to as a liar by a

claims examiner when my union explained the need for my file so

that I may address my pretermination appeal.

When I finally did get a copy of my file, there were 97 pages of

someone else’s doctors’ reports, memorandums, personal letters, et

cetera, in my file. I contacted the other Federal injured worker, in

another State, 1,500 miles away and in a different region, to tell

him what I had found. I also contacted his Congressman, and we

both contacted Congressman Horn’s office to complain. Someone

may have parts of my file in their file. I also found a job re ́sume ́

and several pages from a third person’s file. This leads me to believe that my file wasn’t worked. If my file was worked, the claims

examiner would have found these documents.

I was told that the unit supervisors do the filing. I called Jonathan Lawrence, District Director of the New York office, and I explained how difficult it was to get through on the telephones. Often

I would get told from Customer Service they would take a message

and a claims examiner would call me back within 3 days. Mr. Lawrence told me in this conversation that if people can travel and go

here and there and do everything else, there is a possibility that

they are not totally disabled. They can travel and do certain other

things but they can’t work, and that doesn’t make sense to me. If

a doctor says a person is unable to work, then they should be unable to leave their homes, he said.

I submitted a tape recording of this conversation to the subcommittee and wish it to be made part of the record.

Mr. HORN. Without objection, it will be put in the record at this

point.

[The information referred to follows:]

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Ms. MCGUINNESS. I was also sent to an OWCP doctor for a neurological examination. I had my shoes on, all my clothes on, and

the doctor told me he was in a rush. He did not touch my upper

extremities or lower extremities during his examination. He did not

perform any clinical tests to determine injuries to my upper extremities except for me to have him squeeze his hand. His bill for

this examination was $285. The examination was less than 4 minutes, and it seemed that his charge was—he was being paid $75

a minute for this service. His examination resulted in a conflict of

medical opinion.

I submitted a tape recording to the subcommittee of this examination, and I wish it to be made part of the record.

Last, it was Mr. Kenneth Hamlett, Regional Director of the New

York office’s treatment of me when I went to the office with my

union president for a prescheduled appointment. The Regional Director told me that he was denying my physical therapy, sending

me back to work very soon, sending me for a referee examination,

ignoring my pretermination appeal, refusing me the right to participate in the selection process of an impartial physician, and denied me the right to see my file in person.

I needed that file. I had a few more days left before I could complete my appeal, and I believe that he denied me the right to see

my file so that my appeal would not be as complete as I would have

liked it to be.

He also threatened to have me removed by guards if he ever

found me on the 7th floor without an appointment. I feel that Mr.

Hamlett, in his capacity of Regional Director, was practicing medicine when he denied me my physical therapy; and, based on Mr.

Kenneth Hamlett’s statements, I assert that the outcome of my

claim was predetermined so that I couldn’t collect my legitimate

benefits. He violated my rights, and the processing of my claim was

at the direction of Mr. Hamlett.

I defer any further testimony to Mr. John Riordan, then union

president of AFGE 3369, who was present during my encounters

with Mr. Hamlett.

And I would like to add one thing: this statement took longer

than Dr. Bloom’s examination. I thank you and I welcome your

questions.

Mr. HORN. Well, thank you very much.

[The prepared statement of Ms. McGuinness follows:]

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Mr. HORN. We now move to Mr. Fairbanks, Matthew Fairbanks,

Special Agent/Pilot, Drug Enforcement Agency.

Mr. FAIRBANKS. Chairman Horn and members of the subcommittee, thank you for the opportunity to testify today on the

topic ‘‘Oversight of Customer Service at the Office of Workers’ Compensation Programs.’’ My name is Matt Fairbanks, and I am currently employed as a

special agent with the U.S. Drug Enforcement Administration. Although I am an employee of DEA, I am appearing today as a private citizen, not as a Department of Justice employee or a DEA

employee.

My current duties are that of aviation specialist. I’m a pilot for

the DEA. The job requirements in this position have taken me all

over the United States and into Central and South America.

On September 25, 1998, I was involved in a training flight accident. The flight was a beginning to transition myself into the helicopters. During the flight, my flight instructor demonstrated a very

aggressive maneuver. As the terrain rushed up toward our OH 6

helicopter, I knew we were in serious trouble. With a loud crash,

my instructor was killed; and I found myself trying to escape the

burning wreckage. I wanted to get my instructor out also, but the

flames finally drove me out of the inferno.

I was life-flighted to Parkland Hospital, where I remained for 2

weeks, for which I have little or no memory. Upon arrival at the

hospital, my blood pressure was dropping; and I was severely

burned over 56 percent of my body. The emergency room physicians discovered that my spleen had been lacerated beyond repair

and had to remove it in order to save me from bleeding to death.

I then spent 4 weeks in the Burn Intensive Care Unit. While in

the BICU, I had four operations in which viable skin was painfully

harvested from unburned areas of my left arm and chest. This was

accomplished via a high-tech cheese grater and a press. The tissue

is now in place on my right arm and legs, and it continues on its

18-month journey to mature as grafted skin.

After 6 weeks in Parkland Memorial Hospital, I was able to return to my home. My wounds were still open, and my care necessitated a daily nurse visit for IV antibiotics and wound cleaning.

All of this was arranged by my workers’ compensation case worker,

Ms. Sue Maraglino. Additionally, I was required to make a 50-mile

round trip to the hospital on a daily basis for therapy and wound

care. Once again, all the arrangements, down to the transportation,

were taken care of by my caseworker, Ms. Maraglino.

As a nurse, Ms. Maraglino was able to answer all of my family’s

questions and address all of our concerns; and, as a caseworker,

she was also attended to the important doctors’ appointments

which I had. To this day my recovery has not been hampered due

to lack of funding, and I have been carefully informed about what

to expect in the future and future surgeries.

Over the months of my recovery, I have had numerous occasions

to reflect upon my experiences as a DEA Special Agent. I recall my

mission to the Oklahoma City bombing site. I was there as part of

my duties as a Special Agent. However, others were there volunteering, volunteering their time trying to help in a hopeless situation.

36

Various church groups and workers set up dinner banquets on a

daily basis at our base of operations, with no charge. A construction worker, seeing my DEA jacket, approached me just to shake

my hand and thank me for helping them take care of their own.

Schoolchildren made signs and posters which were hanging everywhere. There was one in our bathroom hanging over the mirror

which read, ‘‘You are looking at a hero.’’ A man stood at the entrance to the work area with little bags of cookies. He told us, ‘‘My

daughter made these for you. Please take a bag of cookies. It is her

contribution.’’ Even country singer Garth Brooks made a personal

phone call to the son of DEA Special Agent Kenny McCoullough,

who was killed in the blast. This phone call brightened the day of

a little boy during a very dark time.

These seemingly small acts provided me with great strength and

drive while I was standing on that mountain of rubble, formerly

known as the Alfred P. Murrah Federal Building. I could lift the

next stone and clear the next level of the building in a continuing

search. I did not find anyone alive, but I did find that the great

spirit of America was not dead. I previously thought it was.

The same experience which helped me deal with the broken remains of the Federal building laid a groundwork for me in dealing

with the shattering conditions of my own life. I’m grateful to a

caseworker who provided me with every means at her disposal to

help me pick up the broken remains of my life and prepare to go

on.

While I lay there in my hospital bed, I recall hearing the news

that another teenager in Plano, TX, had lost their life due to an

overdose of heroin. It made me think about an event years earlier

when I was a Dallas, TX, police officer on the streets of Dallas. I

had arrested a poor disoriented junkie. As I checked for weapons,

I came across a paper on which he had written the following:

My name is cocaine, call me Crack for short

I entered this country without a passport

Ever since then, I’ve made scum from the rich

Some have been murdered and found in a ditch

I’m more valued than diamonds, more treasured than gold

Use me just once and you too will be sold

I’ll make a school boy forget all his books

I’ll make a beauty queen forget her good looks

I’ll take a renowned speaker and make him a bore

I’ll take your own mother and make her a whore

I’ll make a school teacher forget how to teach

And I’ll make a preacher not want to preach

I’ll take your rent money and get you evicted

I’ll murder your babies, or they’ll be born addicted

I’ll make you rob, and steal and kill

When you’re under my power, you’ll have no will

Remember my friend, my name is ‘‘Big C’’

If you try me one time, you may never be free

I’ve destroyed politicians, actors and heroes

I’ve reduced bank accounts from millions to zeros

I’ll make shooting and stabbing a common affair

Once I take charge, you won’t have a prayer

Now that you know me, what will you do?

You’ll have to decide, it’s all up to you

The decision is one to sit in my saddle,

It is one that no one can straddle

Listen to me, and please listen well

When you ride with cocaine, you ride straight into hell.

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My life, my job, my responsibility to you collectively is about removing these soul-destructive elements from our society. Ms. Sue

Maraglino’s job is to get me back to health so that I can perform

that task. She did her job, and as of Tuesday of last week, I am

back to do mine.

I’m familiar with the bureaucracy, and I’ve seen my share of government workers that are professionally ‘‘less than anxious.’’ Although others could have had an experience different than mine,

I can say that if all caseworkers were as prompt and professional

and courteous as mine, nothing more could be expected. Thank you.

Mr. HORN. Thank you very much. That is a very moving statement and quite a poem, I must say.

[The prepared statement of Mr. Fairbanks follows:]

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Mr. HORN. The gentlewoman from Illinois, the vice chairman of

the subcommittee, will start the questioning.

Mrs. BIGGERT. Mr. Fairbanks, about how long did it take you to

resolve your case, then?

Mr. FAIRBANKS. Everything was resolved on an ongoing, an asneeded basis, and there was never any—I had constant contact

with my caseworker throughout each operation and each new

phase, and so there was never anything that was unresolved.

Mrs. BIGGERT. Was it in a reasonable amount of time, then, as

you moved along? I’m wondering if it was before anything started.

Did you have to wait a long time?

Mr. FAIRBANKS. No, no, there were no waits. And during a large

percentage of the time I was helpless and drugged up and incapacitated in the hospital. But, nevertheless, everything was always

taken care of immediately; and there were no worries that my family or friends or the other agents that were helping me had.

Mrs. BIGGERT. And, Ms. McGuinness, did you find the same

prompt service?

Ms. MCGUINNESS. No, ma’am, I did not. There were always

delays. I couldn’t get materials that I needed. If I needed assistance or I had a question, if I needed a copy of my file, it was denied

all the way through.

Mrs. BIGGERT. Do you know other people that felt the same way?

Ms. MCGUINNESS. Yes. Yes, I do. A lot of people.

Mrs. BIGGERT. And Mr. Chamberlin?

Mr. CHAMBERLIN. It took 10 months to get the file just accepted

for review, and it was a letter to the Secretary of Labor. And then,

following that, it has been approximately 5 years; and the case remains pending.

Mrs. BIGGERT. Was there a problem with having correct forms in

your package? Was that a part of the delay, that you didn’t fill out

the forms correctly or the right forms?

Mr. CHAMBERLIN. No, it appeared that OWCP personnel just did

not review the entire package. And, additionally, I had a number

of doctors as well as the accompanying FBI documents that I was

able to obtain submitted. However, the OWCP personnel would

continuously almost misinterpret, be it intentionally or inadvertently, what the doctors were saying.

The reports were there, and I would continue to submit it. And

on one occasion, Mr. Israel, the claims examiner, had indicated

that he was going to speak to Gloria Watson in regards to the fact

he felt the entire facts were submitted for the case and the claim

should be accepted, but nothing came to it.

Mrs. BIGGERT. So did the FBI fulfill their end of the bargain and

did they complete the forms properly that had to go for the workers’ comp?

Mr. CHAMBERLIN. Absolutely not.

Mrs. BIGGERT. And do you know why?

Mr. CHAMBERLIN. No, I’m unable to provide an explanation.

Mrs. BIGGERT. So did the Office of Workers’ Compensation Programs ever ask the FBI for these forms?

Mr. CHAMBERLIN. They did back in August of, I believe it was

1996; and said they submitted the minimum amount of documents.

I have been attempting to obtain, as I indicated previously, 5 years

43

to obtain the documents in regards to the allegations of me being

homicidal, suicidal, and all the documentation surrounding it, and

the FBI refuses to produce it.

Mrs. BIGGERT. Was this the Mendernach homicidal-suicide

memo?

Mr. CHAMBERLIN. That is one of the documents, yes.

Mrs. BIGGERT. So the Office of Workers’ Compensation Programs,

were they willing to pursue these documents from the FBI?

Mr. CHAMBERLIN. No. In a FOIA request to OWCP, I had asked

if they had any additional documents, other than the ones I had

received from the FBI; and OWCP’s position was, we have not communicated with the FBI nor do we intend to nor is there a need.

Mrs. BIGGERT. And you got help from a Congressman?

Mr. CHAMBERLIN. Yes, Congressman Price.

Mrs. BIGGERT. And so he helped you obtain that document.

Mr. CHAMBERLIN. Yes. He had submitted several inquiries on it

and asking for specifically that document. And on their first release, they had provided a document to Congressman Price that

was nonrelated, but it was written by Karen Mendernach on that

same date, and that was just an action of their intentional deceit.

Mrs. BIGGERT. What then was the reaction of the Office of Workers’ Compensation Programs to supplying the document for the

case file?

Mr. CHAMBERLIN. Following the submission of the——

Mrs. BIGGERT. Yes.

Mr. CHAMBERLIN. The first time I had submitted it, which was

last August and September, the report from OWCP completely ignored it. They did not address it and did not acknowledge receiving

it. I had sent it to them, I had faxed it to them, and they had acknowledged receiving the fax. And I followed it up within the next

5 weeks with communications asking that it be forwarded to the

appropriate claims examiner to ensure that they had it.

On the decision by Ms. Preuit, they just did not address it. It is

currently before them right now, and it is 128 days pending the reconsideration.

Mrs. BIGGERT. But they have acknowledged the memo?

Mr. CHAMBERLIN. They have acknowledged receipt of the memo

at the time I faxed it. They have not acknowledged the memo in

their memorandum to the Director on the denial of the reconsideration.

Mrs. BIGGERT. And you mentioned in your testimony that you

are on your fourth reconsideration now?

Mr. CHAMBERLIN. Yes.

Mrs. BIGGERT. And how long have you been waiting for a response to that?

Mr. CHAMBERLIN. 128 days.

Mrs. BIGGERT. Did the workers’ comp group issue a date in which

they stated the decision on your claim would be provided?

Mr. CHAMBERLIN. They have indicated that it would be in 90

days.

Mrs. BIGGERT. You also stated in your testimony that you struggled to confirm your appeal right from OWCP. Why was this difficult to do?

44

Mr. CHAMBERLIN. Well, I had received the last, and now Ms.

Preuit’s letter specifically stated to take it to ECAB. Following

that, I had inquired if I had the right to file a reconsideration. Specifically, I did not want to go to ECAB without the homicidal-suicidal memo as part of the package. Included in the letter was for me

to contact, if I had any questions, a Ms. Stone in Washington, DC,

with OWCP. Her response was to just follow the appeals rights.

She would not address if I did have the right to file a reconsideration.

Following that, I talked with Sheila Williams. She informed me

that was an interesting question and she would have to do research

to find out if I would have the right for a reconsideration. She informed me that she would be traveling the week of, I believe it was

November 16th, and that she would get back with me, and she had

never followed up a return call.

Mrs. BIGGERT. So she just thought that was an interesting question and that is as far as it went?

Mr. CHAMBERLIN. Yeah. She did not have the answer if I had the

right to file a reconsideration.

Mrs. BIGGERT. So, has this process been financially draining to

you?

Mr. CHAMBERLIN. Well, at the time I was dismissed from the FBI

I lost my house. My wife had a stroke. We’ve had four different

residences since. We have been moving around. We’ve lived in two

abandoned farmhouses and just fixed them up.

I have applied for several hundred jobs, over 60 in the State of

North Carolina. I have two master’s degrees, course work completed for a Ph.D., and 25 years of government experience and applying for a job of $22,000 and up, and I have been unable to obtain full-time, permanent employment.

Mrs. BIGGERT. So do you have a source of income?

Mr. CHAMBERLIN. I have retirement now from the OPM.

Mrs. BIGGERT. Thank you very much.

Thank you, Mr. Chairman.

Mr. HORN. Well, thank you.

Mrs. Williams was mentioned, and you said she did not get back

to you. Was she cooperative when she talked on the telephone?

Mr. CHAMBERLIN. Sir, I guess it could be—I wouldn’t want to

make a biased statement to say that she was uncooperative or she

was passive. She just felt it was an interesting question; she would

have to do the research.

And then I still had not had the answer, and I had checked with

Congressman Price’s office and she was very concerned, Ms. Gay

Eddy, of whether I should file—she was emphasizing to file with

ECAB because of the 90-day restriction for ECAB. And then I had

submitted it within the 90-day period, and if that wouldn’t suffice

I was going to go to ECAB.

When I submitted it, I followed it up with a phone call. And Ms.

Williams stated, well, we have it; I guess it will go. She did not

elaborate.

Mr. HORN. Do you remember what her position was in the Department of Labor?

Mr. CHAMBERLIN. I believe she is the Deputy Director, or was the

Deputy Director.

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Mr. HORN. For the region or a district or what?

Mr. CHAMBERLIN. I was under the impression for the entire

OWCP.

Mr. HORN. I see. So she is in Washington, not in the field?

Mr. CHAMBERLIN. Correct.

Mr. HORN. What was the region that you dealt with on most of

your activity and claims?

Mr. CHAMBERLIN. When I initiated the claim, I was told to file

with Jacksonville, FL; and I began to make the filings with Jacksonville, FL. And, unbeknownst to me, as the time progressed, this

is where they had sent the files to the FBI and had returned the

packages on two occasions saying they were not processing the

claim.

Following that, I submitted the letter to the Secretary of Labor,

Honorable Robert Reich. And as a result of submitting it to him,

I’m making the assumption he had forwarded it to the Washington,

DC, office. I believe it was the security office, OL 9. So OL 9 actually processed the claim.

Mr. HORN. So you were working with the Florida region, I assume?

Mr. CHAMBERLIN. Initially, yes.

Mr. HORN. But also with the national headquarters?

Mr. CHAMBERLIN. Yes. Somehow, in other words, in trying to get

the claim filed initially with OWCP, it was with the Jacksonville,

FL, office. And then, as a result of the Secretary of Labor’s actions,

it was submitted to Washington, DC.

Mr. HORN. Did the OWCP pursue the missing documents from

the FBI?

Mr. CHAMBERLIN. They were not of any assistance at all. They

specifically told me that they had sufficient documents from the

FBI and that they had no need to further communicate with the

FBI nor did the FBI have a need to communicate with them.

Mr. HORN. So they had seen or had held the documents. It is just

you that didn’t see them.

Mr. CHAMBERLIN. No, they said they never received—or they had

no acknowledgment. The documents that they had provided me

under the FOIA, of the documents that were submitted to OWCP

by the FBI, were very limited, approximately 20 pages.

Mr. HORN. Ms. McGuinness, what region was it primarily with

whom you dealt?

Ms. MCGUINNESS. New York region.

Mr. HORN. The New York.

How about you, Mr. Fairbanks? What was your region that was

helping you on the case?

Mr. FAIRBANKS. The Dallas, TX, region.

Mr. HORN. Dallas, TX, region.

Well, thank you. Are there any other points you would like to

make?

I think you have a very full record here. And we, I might say,

out of the three of you, we have hundreds of files that have been

sent to us over the last few months; and some of them are just very

tragic and similar to some of your cases in terms of the lack of,

shall we say, proper handling in the sense, I don’t want to use the

word handling particularly, but just that people on the government

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payroll ought to realize that they are there to serve the people; the

people are not there to serve them. And it comes up again and

again in office after office that we have real problems with in that

area.

I’m glad to hear Mr. Fairbanks had a very positive experience.

That hasn’t been the tenor of a lot of the files that have come in

from all over the country, and that’s what started me on this in

Long Beach about 3 years ago when I had 60 people under the Federal injured workers situation. And I just went right down the line

and I said, tell me your story; and I came back filled with 60 stories, most of which either the government agency or this program

had been less than helpful, to put it charitably.

So I thank you for getting this on the record, and we appreciate

it, and thank you very much for coming.

We will now start with panel II, if they will come forward.

Beth Balen, administrator of the Anchorage Fracture and Orthopedic Clinic; John Riordan is first vice-president, Council 220 of the

American Federation of Government Employees; James Linehan is

an attorney; and Tina Maggio is field representative for the Office

of Representative Michael F. Doyle.

If you would stand and raise your right hands, please.

[Witnesses affirmed.]

Mr. HORN. The clerk will note all four witnesses have affirmed

the oath.

We will begin with Beth Balen. Thank you for coming all that

distance, Ms. Balen.

STATEMENTS OF BETH BALEN, ADMINISTRATOR, ANCHORAGE

FRACTURE AND ORTHOPEDIC CLINIC; JOHN RIORDAN,

FIRST VICE-PRESIDENT, COUNCIL 220, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES; JAMES LINEHAN, LAWYER, JAMES R. LINEHAN, P.C.; AND TINA MAGGIO, FIELD

REPRESENTATIVE, OFFICE OF REPRESENTATIVE MICHAEL

F. DOYLE

Ms. BALEN. Thank you. My name is Beth Balen, and I’m the administrator of the Anchorage Fracture and Orthopedic Clinic,

which is an eight-physician orthopedic group in Anchorage, AK. I

would like to, I guess, apologize for the length of my statement that

I submitted. Unfortunately, most of it is numbers, so there’s a lot

of backup documentation there.

Federal workers’ compensation claims, paid through the U.S. Department of Labor, have been a long-term problem for our clinic

and other Alaska providers in general, and these difficulties have

led many offices in the State to refuse to accept USDOL patients.

Our physicians want to be able to treat sick and injured patients,

but it’s difficult to deal with all the USDOL guidelines which, really, the government relationship or the government regulations are

interfering with the doctor-patient relationship. They’re sort of getting right smack in the middle of it.

In the past 3 years, our office as well has pretty much stopped

accepting appointments from USDOL patients due to the low reimbursement rates and the amount of staff time involved to obtain

payment. We will see the patient, but frequently we make them

self-pay, particularly if a case number has not been issued yet, beVerDate 11-MAY-2000 08:54 Apr 11, 2001 Jkt 010199 PO 00000 Frm 00050 Fmt 6633 Sfmt 6602 E:\HEARINGS\62686 pfrm01 PsN: 62686
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cause we don’t have time to deal with the headaches of billing the

USDOL.

And I would like to stress that this doesn’t apply if the patient

comes to us from the emergency room when we are on trauma call

for the city, in which case we take any and all patients and whatever insurance coverage they may or may not have.

The problems that we experience with U.S. Department of Labor

patients include, No. 1, the low fee schedule. I have included a

number of examples in my statement which show the actual patient bills for some of our recent USDOL patients, starting on page

3 in my statement. I have shown you our charge, the amount Alaska Workers’ Compensation would have paid if it had been State

workers’ comp, and the amount the USDOL actually paid. For example, a carpal tunnel release that we charge $1,428 for,

Alaska Workers’ Comp actually allows more than we charge. They allow $1,733, but the USDOL paid $691. For a laminotomy, back

surgery, we charge $5,227. Alaska Workers’ Comp pays $4,608. USDOL paid $2,107. Frequently, it’s less than 50 percent of the

charge. We end up writing off considerably more than we get paid.

The second major issue that we have a problem with are the

forms. The forms that a USDOL patient comes in with are lengthy,

they are time consuming, and in the amount of time it takes a physician to complete his part of the form he could have seen another

patient. The forms are also redundant, because the information

that they request is standard in medical office visit dictation, which

is always attached to the claim anyway.

From 1988 through 1991, our office didn’t see any USDOL patients, which was following a sting operation engineered by the

U.S. Department of Labor which targeted Alaska physician offices.

In 1991, we started seeing these patients again, after we worked

out an arrangement with the USDOL in Seattle that we would bill

with our chart notes and our standard forms and not use the

lengthy forms, which we continue to do today, but we’re constantly

hounded by the patients and their employers that the form has to

be filled out.

Another problem is the delay that we have as the patient obtains

their case numbers. Our experience has shown it takes at least 30

to 45 days for a claim number to be issued by the USDOL, and

there is absolutely no way in the meantime to bill a claim to the

USDOL without a case number on the bill. It’s returned immediately to our office saying there’s no case number on file.

It doesn’t appear that there’s any way for the USDOL to enter

the claim in their computer and wait for a claim number to be

issued, and it also doesn’t appear that they are willing or able, one

of the two, to put in a patient’s name and look and see if there’s

a case number on file. They won’t look it up.

Many times we have a claim number, we have it written on the

bill, and the claim still gets rejected for no claim number. It looks

to us, although we have no way to prove this, that it’s possible for

a claim number to exist in one part of the USDOL’s computer but

not in another part, namely the claim payment portion.

Frequently, claim numbers are issued without the proper medical

condition attached to them, then the claim gets denied, saying that

the billed services are not related to the accepted condition. If the

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claim gets rebilled three or four times with no changes made to it,

eventually it gets paid because something gets updated in the computer. So rebillings are just a constant—it is almost a given with

the U.S. Department of Labor. You do not get paid the first time

you submit the bill. You have to do it several times.

There seems to be very poor communication between Federal employers and the USDOL, and I question whether this is because the

employers are not properly instructed in the process or whether the

process is just so complicated that nobody could possibly follow it.

And I have given you an example of this attached, which almost

seems like it belonged in the testimony for the first panel, where

this employer authorized the claim and the USDOL issued paperwork but it took more than 8 months from the date of this patient’s

surgery plus hours of staff time to get the claim paid.

The automated telephone system presents a problem. It’s not

possible to call and speak to a person if you are having problems

with the claim. You punch numbers, you leave a message, the message process that you have to follow to get information or leave a

message is very long, and you never know if you are going to get

a call back or not. Although I must say that recently we did get

a call back on a claim. I don’t know if that’s a fluke or a sign of

improvement.

The time involved to work these accounts in order to receive payments has become a serious issue to us, and typically the amounts

of reimbursement we get is not worth the effort.

The Federal Government is the largest employer in Alaska.

Many of our friends and relatives work for them. My husband

works for them. Our doctors want to be able to treat all of the sick

and injured patients that need it and come to us, but the USDOL

rules make it virtually impossible to do so. The combination of low

reimbursements rates, the difficulties we have had in obtaining

payment, and the past history we’ve had in dealing with USDOL

just doesn’t make treating USDOL patients good business sense.

Thank you.

[The prepared statement of Ms. Balen follows:]

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Mr. HORN. Let me just question you on one point. I want to make

sure I understand on the chart, the write-off. Is that essentially

your agency’s write-off on it?

Ms. BALEN. That’s the amount that we have to write off, because

you cannot bill Federal worker for the difference in what the

USDOL pays and what our charges are. So, yes.

Mr. HORN. That mounts up to quite a bit. Of these particular operations you note here, was there ever any attempt to get the agency to change the fee, particularly based on the cost of living in

Alaska, which is probably the highest in the United States, isn’t it?

Ms. BALEN. Pretty close.

Mr. HORN. If not the State of Washington. The two of them usually have been the highest cost of living.

So have they ever adjusted their fees based on concerns from

you?

Ms. BALEN. They have never adjusted the fees, to my knowledge.

We have tried appealing, and in fact we appeal to commercial insurances periodically using some of the documentation that I have

attached in my statement. An appeal to the USDOL is typically a

waste of time, though. The only response we get is that’s their fee

schedules and that’s it.

Mr. HORN. Well, I thank you. That’s a very helpful document and

series.

And we will now move to Mr. John Riordan, first vice president,

Council 220, American Federation of Government Employees.

Mr. RIORDAN. Mr. Chairman and members of subcommittee.

Thank you for this opportunity to address the topic of customer

service at the Office of Workers’ Compensation Programs by the

Department of Labor.

My name is John Riordan. I am first vice president of the American Federation of Government Employees, AFL–CIO, Council 220

which represents approximately 25,000 Social Security employees

in field offices throughout the country. I have been employed by the

Social Security Administration for over 25 years. And as a union

official, I have represented many SSA employees that have been injured on the job and who have applied for workers’ compensation.

I am currently representing four employees. None of these employees are receiving compensation benefits at present, although

they applied for benefits many months ago. I encounter difficulties

contacting agents because of the voice mail system. You are no

longer able to speak with an agent. Instead I have to leave voice

recorded messages. When I receive no response, I have to write to

them even though I work in the same building, 201 Varick Street,

New York City, where they are located.

They imposed a policy restricting visitors to their offices a couple

of years ago. I want to recount briefly an incident which occurred

on September 16, 1996, when I accompanied a customer who wanted to deliver some documents to the OWCP office at 201 Varick

Street. The customer who I accompanied is Dianne McGuinness

who testified earlier before the subcommittee.

Ms. Diane McGuinness came to my office and reviewed some of

the documents she wanted to submit to OWCP. Ms. McGuinness

wanted to deliver her appeal of the denial of the continuation of

her workers’ compensation benefits. I was, at that time, president

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of AFG Local 3369 which represents Social Security field office employees in New York City, Long Island, and Westchester County.

We took the elevator from the 11th floor to the 7th floor where

OWCP is located. The door to the office was locked and there was

no mail slot.

While searching for a place to deliver the appeal, a man appeared at the end of a long corridor and started shouting. I tried

to ignore him, but Ms. McGuinness said to me that he was shouting at us. As the man approached he was still shouting, indeed it

was directed toward us.

We attempted to explain to him why we were there, but he didn’t

stop talking so he could hear our response. He told us to leave the

building immediately. He said we had to have an appointment to

be there. I told him that I had called to make an appointment earlier, but no one responded to our calls. Ms. McGuinness and I told

him that we were Federal employees. The man responded that he

didn’t care whether or not we were Federal employees and that he

would call the security guards to remove us if we did not leave.

Ms. McGuinness had made an appointment through the Senator’s office to deliver the appeal, but she was not able to tell the

man this because he would not let her talk. The man was visibly

upset and disturbed by our presence. Ms. McGuinness asked him

if he were Mr. Kenneth Hamlett, the New York Regional Director

OWCP, and he said he was. Ms. McGuinness introduced herself to

him and Mr. Hamlett replied, ‘‘Oh, Ms. McGuinness, we’re going to

get you back to work real soon.’’ I introduced myself to Mr. Hamlett. I told him that I worked in

the building and was not told that the 7th floor was restricted. We

asked Mr. Hamlett to accept the appeal and he took it. When Ms.

McGuinness asked him to sign a receipt, he did, I was shocked to

learn that the man shouting at us was the OWCP Regional Director.

Two days later, September 18, 1996, Mr. Hamlett called me at

my office to hold a conference call with Ms. McGuinness. Mr.

Hamlett told us that Jonathan Lawrence, District Director, Kevin

Kates, senior claims examiner, and another claims examiner were

on the call with him. However, only Mr. Hamlett spoke during the

conversation. Mr. Hamlett angrily stated that his staff was presently engaged in responding to Congressman Ackerman and others

concerning Diane McGuinness. He accused Ms. McGuinness of calling all over the country. Mr. Hamlett said he had heard from his

head office about her calls.

Ms. McGuinness asked him if she could see her file and Mr.

Hamlett responded that he would furnish her the part of the file

she does not have already via mail. However, Mr. Hamlett said she

would not be permitted to visit the office to review her file by going

to room 740. Mr. Hamlett said that Ms. McGuinness would be referred to a referee for a decision on her disability. He said he came

to his decision without the use of the appeal Ms. McGuinness had

presented to him September 16. He said that Ms. McGuinness’ appeal was not right.

Ms. McGuinness asked him about her physical therapy being disallowed, and Mr. Hamlett said he made the decision based on medical evidence. I asked him to continue the physical therapy at least

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until OWCP makes a decision on her pending disability and he said

no. I did not understand his reasoning to stop the physical therapy

prior to the decision of the referee. Even the second opinion doctors

had recommended that she be provided with physical therapy for

at least 12 weeks.

Mr. Hamlett replied that she was injured too long ago to benefit

from physical therapy. It was only effective early in the injury, he

contended. I said that his decision was inconsistent with the medical evidence and that the physical therapy should be supported

until there is a decision on the disability. Mr. Hamlett said no.

Ms. McGuinness asked if she could participate in the selection

process of the referee. Mr. Hamlett said he selected the referee and

that Ms. McGuinness can have no participation in the selection

process. Ms. McGuinness protested stating that regulations permit

her to participate in the selection process. Mr. Hamlett said, no,

they don’t.

Mr. Hamlett stated that he had alerted the building management that anyone found on the 7th floor without an appointment

with his office would be escorted out of the building.

During the entire conversation, Mr. Hamlett spoke in an angry

and loud tone of voice. Ms. McGuinness asked him not to shout.

Mr. Hamlett maintained his angry and loud tone throughout our

conversation.

Mr. Hamlett concluded the call by stating that he would send

Ms. McGuinness her file from June 21, 1996, to the present, that

is the part of the file she did not already have.

I also want to make a comment on two other issues that are serious drawbacks in dealing with the OWCP for employees I have represented. The first is that it takes too long to receive payment after

filing a claim after having submitted complete and necessary medical evidence.

The earliest case which I have handled as representative was

paid in about 3 months. But the norm for the cases I have handled

is at least 6 months or even much longer. Employees encounter severe hardship waiting to be placed in payment status. Often there

are delays because the wrong forms or obsolete forms were completed or because employees were not given the correct forms in the

first place by their agency.

For example, I have had many problems with the Social Security

Administration personnel office who take an inordinate amount of

time to process and to send the employee’s workers’ compensation

claim to OWCP.

The second issue which I mentioned earlier is the inability to

reach anyone at OWCP. The voice mail system is frustrating and

often does not work. More often than not there is no call back after

leaving a message. There is insufficient staff to process the workload, and employees seem to have become numb by the backlog of

cases they are not able to get to.

I strongly recommend that you support funding the agency for

more personnel to improve customer service and to clear the backlog of cases.

I just want to mention the status of three cases that I am currently handling. Case A is an employee with carpal tunnel syndrome injury. He filed a claim for his injury, and it was approved.

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He later returned to work and asked for some accommodation so

that he could perform the job without incurring injury.

Social Security Administration denied him the requested accommodation. He had to stop working again due to the pain of the carpal tunnel and tendonitis injuries. He filed for compensation November 17, 1998. He has submitted all required medical evidence,

but he is still awaiting approval of his claim and payment.

Case B is an employee who had stress-related injury, and she left

work in September 1997. She returned to work in June 1998 and

continues to work on the job. Her claim was approved by OWCP,

but she still is awaiting payment for that period.

Case C is an employee who was receiving compensation for an

injury she received in a fall while working. OWCP pressured her

to return to work 1 day a week. She did so, but, due to pain, was

unable to show up for the 1-day a week on most occasions. She

again filed for full compensation and OWCP not only denied that,

they decided to deny her entire compensation. Because the employee could not return to work, she filed for disability retirement

under Office of Personnel Management.

I represented her before the Merit Systems Protection Board and

it was settled with her claim approved. We appealed her denial to

workers’ compensation and was recently reversed on appeal and

awarded retroactively. This award covers the part-time claim, not

the full-time claim she filed. She is still awaiting a payment. She

continues to receive disability retirement benefits while awaiting

workers’ compensation.

Mr. HORN. That’s very helpful and we’re going to pursue some

of the questions you’ve raised with the administration when they

testify. Thank you for bringing those points out.

[The prepared statement of Mr. Riordan follows:]

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Mr. HORN. James Linehan is an attorney. And please identify

where. And proceed with your testimony.

Mr. LINEHAN. Thank you, Mr. Chairman, for the opportunity to

be here. My name is James Linehan, Jim Linehan out of Oklahoma

City area. I am an attorney, solo practitioner. I represent disabled

claimants before FECA, OWCP, Merit Systems Protection Board,

Social Security Administration, and Federal courts.

Basically I have submitted a statement. The statement is out

there. I’m not going to read through it, but I will break it down for

you. I find it rather incredible that in this current city I have never

been here before but I understand this to be a city of attorneys.

There is 11⁄2 million attorneys in the United States, I know of three

or four, including myself, who will be willing to take on these

claims, these OWCP claims. I find it incredible that out of all of

this city you have to find an attorney in Oklahoma to come up and

speak on these claims. I think that speaks loudly for itself.

I also find it not unusual with the testimony that’s just been entered about the medical treatment status. Presently in Oklahoma,

I know of only one to three neurosurgeons, orthopedic surgeons, et

cetera, who will treat or take on Federal workers’ compensation

cases. That’s a couple of weeks ago. I do not think they will take

them on anymore.

That leaves no physicians I know of in the State of Oklahoma

who will take on these claims. I know of no attorney in the State

of Oklahoma beside myself who will represent these claims. The

reason why, other than these are bureaucratic nightmares, I have

broken down further. There’s two general issues. In my opinion,

the main issue is nonaccountability. The OWCP, in my opinion, is

a self-regulating, self-governing agency that answers by law to no

court of law. It has, thus, no incentive to answer to anyone. It has

no incentive to handle these cases in the claimant’s best interest.

I have broken this down in the statement, but in general the

nonaccountability of Fed Comp OWCP is what leads to no attorney

representation. Essentially there’s nothing for an attorney to do.

And how do I handle claims? Basically—and attorneys tell me

never to tell this, but I tell it all the time any way—people pay me

money to tell a government bureaucrat to do what they’re supposed

to do in the first place. That’s what it boils down to.

As a result of nonaccountability, there’s a distinct lack of medical

treatment. In my opinion, as a result of this nonaccountability and

its effect on medical treatment there’s millions upon millions of dollars being diverted from OWCP to private sector insurers to cover

them.

How does this work? In a typical back case that I see, $150,000

is spent for operative physical therapy because of the bureaucratic

nightmare the claimants and doctors have to go through. They

have to wait months on end to get medical treatment authorized,

yet the claimant needs the surgery now. Their doctor says they

cannot wait months. The claimant and I need something. There is

no response from OWCP.

Very easy. The claimant and doctor turn it over to private insurance. Private insurance carries it. They never know it’s Fed Comp.

I see this 20, 30, 40, 50 times a year. Multiply it out, $100,000 per

claim, it’s very easy math. This is in Oklahoma alone.

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I get calls from Hawaii to New York to Florida to Alaska to handle these claims. I see this constantly. Can I prove how much

money is being diverted? No. You would have to go to the medical

establishment. I just say this is what I see.

The nonaccountability of the OWCP basically results from the

fact that it answers to no court of law. What does this mean? This

means the OWCP—and I’m always referring to OWCP—can knowingly and freely act in any manner it wants to with the claimants.

This is what you’re hearing testimony before about. This is what

you’re hearing testimony today about. There is no incentive for the

OWCP to respond to a claimant. There is nothing the claimant can

do in response. The OWCP can act as it wants.

In the typical OWCP claim, the claimant is under guidelines to

respond, submit forms this, forms that, within 30 days, 10 days

here, et cetera, if you don’t, Mr. Claimant, your job will be terminated. You will lose benefits, et cetera.

These are real life happenings. They lose benefits, they lose their

home, they lose their car, they can’t feed kids. In return, the

OWCP is under absolutely no guidelines whatsoever to respond in

any timely manner. The claimant has to respond. The OWCP never

has to respond. That’s why you see comment after comment, no return phone calls, no response to filings, et cetera.

The other thing in addition to nonaccountability I have outlined

is unilateral control. As a result of unilateral control that the

OWCP has over these claims, I gave two examples. One is the attending physician rule. Federal courts across this country, the Social Security Administration, et cetera, all recognize the attending

physician rule.

I have put it in my statement. Basically, what this means is that

the claimant’s qualified medical attending physician prevails over

the reports of a hired, paid consultant of the agency. Speaks common sense. The qualified medical practitioner for the claimant

knows him, has treated him for years, et cetera.

The agency is a paid doctor, may not ever examine the claimant,

may only look briefly at reports, if at all, or may examine the

claimant, from what I see and as testimony this morning reflected,

5 to 10 minutes. That’s normal.

In OWCP land, the attending physician rule is the exact opposite. If there’s a contest between medical reports, the paid non-examining, barely examining report of the OWCP doctor prevails over

the attending physician. Thus another incentive for medical practitioners not to take these claims. They can’t get treatment authorized. They are subversive to whoever OWCP can shop around and

find, $250 to pay for a report to say what they want. This is how

it works in real life. I see this daily.

The other example of unilateral control that I see—and this is a

killer clause I call it, Section 8128(a)(1) of the OWCP. This is a

simple clause and it’s a quite deadly clause for Federal employees.

This basically means that the Secretary of Labor—under this

clause if a Federal employee can succeed in gaining benefits on his

or her claim, can gain a scheduled award, whatever she or he gets,

under Section 8128 the killer clause, the Secretary of Labor or his

or her designee, anybody down the road, down to the claims examiner level, can on own motion, without notice, without hearing,

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anything, simply take the award, take the benefits back, demand

repayment. There is no time limit on this. There is—it’s—I just

simply call it the killer clause.

If a claimant is successful, if they didn’t tick the OWCP off

enough, they may get to keep their claim. However, in they’re successful, and they tick the OWCP off, and 8128 can come back in

and say simply hand the money back. That’s it. There is no right

of review.

As a result of this what I see daily in these claims, I have one

recommendation that will solve a lot of problems. These are not

second-class citizens. This Congress looked at VA claims back in

1998. It was the same setup. VA acted unilaterally without control

over veterans benefits for years. Couldn’t get attorney representa- tion. I think the old law was $25 for an attorney.

In 1988, this Congress came in and said enough of this. Veterans

needs to be recognized as full citizens with full rights. They created

the Court of Veterans Appeals. Veterans now get the right to have

Federal court review their claims. They have attorneys now.

The lower administration, the Veterans Administration can no

longer deny claims randomly, can no longer deny due process. They

have to give hearings. They have to provide reports in a timely

manner. They have to act according to Federal court rules.

This is what needs to be done for the OWCP. These people are

not second-class citizens. They need the right, they deserve the

right to have Federal court review.

Whether or not they should have their own Federal court, I leave

this up to Congress. I know you’re going to get into the budget, et

cetera, I’m not concerned with that. My concern is only that somehow there be Federal court review. We could use the present system.

You don’t need the ECAB system anymore. If you’re saving

money, take it away. It’s a useless appeal. It goes nowhere. They

can have their administrative hearing at the lower level, file the

claim, the administrative hearing, much as in Social Security, if it’s

denied there, file a claim in Federal court. It’s very simple.

If the Federal court then sees that the OWCP is not following

due process rules regarding notice, production of documents, everything else you hear constantly in these claims, it’s very simple:

Sanctions. A Federal court will start stomping on the toes that

need to be stomped on. That’s what it boils down to. Until then,

in my frank opinion, nothing will change. This will go on. That is

my recommendation.

I’m open for questions at any time.

Mr. HORN. I never thought I would hear a lawyer’s statement

that I agreed with, so I’m glad you came, because you’re the exception to my rule. I mean, that’s a brilliant statement and I really

appreciate it.

Mr. LINEHAN. Thank you.

[The prepared statement of Mr. Linehan follows:]

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Mr. HORN. Our last one on this panel is Tina Maggio, and she

is the field representative for a respected Member of this body,

Representative Michael F. Doyle.

Ms. MAGGIO. Thank you Chairman Hornman—Horn. Sorry. I’m

nervous. Thank you, Chairman Horn for allowing me this opportunity.

I have been working for Representative Mike Doyle’s district office as field representative for 3 years. As part of my responsibilities, I assist constituents with problems with OWCP as well as the

Social Security Administration, the U.S. Postal Service, Medicare,

and the Office of Personnel Management.

For OWCP cases, a majority of my contact is with the Philadelphia District Office. In looking over the history of my case work,

I have handled approximately 30 to 35 cases.

Since each individual case is different and varies in complexity,

I do not believe it would be fair for me to make a generalized statement regarding the responsiveness of OWCP to congressional calls

or correspondence.

Therefore, I would like to discuss my constituent casework in

which I deal with the Philadelphia District Office. In my written

statement, I outline three case examples in detail which provide a

broader understanding of my correspondence with the OWCP.

The first example is—I first spoke with this individual on March

8, 1999. He has an approved medical claim through OWCP and has

been waiting for a prescription reimbursement since May 1998. He

was referred to seek assistance from Representative Doyle by his

injury compensation specialist at the Postal Service because neither she, the drugstore, nor this constituent could get a response

from the claims examiner.

The constituent told me that he was reducing the amount of his

medication because he could no longer afford to pay for the prescription without getting reimbursed. On March 8, 10, and 16, I

contacted the Philadelphia District Office and left a message for his

claims examiner. On March 17, I faxed a letter to the District Director’s office regarding this matter. On March 25, I called the

Philadelphia District Office and spoke with the assistant in the

District Director’s office. I told her that I had left numerous messages for the claims examiner to call me back, but I had not yet

heard from him. She told me that all congressional calls are supposed to be answered within 1 day.

She put me through to the supervisory claims examiner’s voice

mail, and I left a message.

On March 26, I called and left another message for both the

claims examiner and the supervisory claims examiner. On March

29, I finally received a call from the constituent’s claims examiner.

This was 3 weeks from when I had initially contacted OWCP.

At this point, I asked him if he had received any of my messages.

He told me the only message he received was from the supervisory

claims examiner to give me a call back. Once the claims examiner

did call me back, he explained what this individual needed to do

to resolve his prescription reimbursement problem and everything

was taken care of.

The next case I would like to discuss is outlined in my written

statement pertaining to the determination of benefits.

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I would like to submit the following pertinent documentation for

the record: First, a letter that the individual received from the District Director dated October 29, 1998, in which the District Director

states that all phone and written inquiries received from Congressman Doyle’s office are promptly answered.

[The information referred to follows:]

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Ms. MAGGIO. However, what this letter does not state is the

number of phone messages that were left before my phone calls

were actually returned, nor does it state that the written responses

did not address the issues clearly specified in Representative

Doyle’s letters.

In addition, I would also like to submit the letter sent to the District Director dated August 4, 1998; the response from the District

Director dated August 25, 1998; the letter sent to the District Director dated September 29—or September 9, 1998; and the questions faxed to the District Director on September 29, 1998, after

the individual’s benefits were terminated.

[The information referred to follows:]

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Ms. MAGGIO. These documentations will demonstrate and provide

insight into the attempts made to supply OWCP with the correct

and factual information.

From these examples, I hope I have clearly demonstrated some

of the problems I experienced in assisting constituents with their

claims. To summarize, I often have problems getting my phone

calls returned for constituent matters that are urgent. In addition,

the response letters that I receive usually do not answer the specific questions and issues addressed in Representative Doyle’s correspondence.

During my 3 years working for Representative Doyle, I have

come to realize that most people go to their Congressman for assistance when they have exhausted all avenues on their own in trying to resolve their problems. When they come to the office, they

are frustrated because they cannot get a response from their claims

examiner regarding their specific questions.

Congressional casework entails getting those answers for those

constituents. I feel that I am, at times, inhibited in this duty because of the lack of responsiveness and cooperation from OWCP.

Most constituents want their Congressman’s assistance in guaranteeing that they are getting a fair and equitable determination as

well as getting the benefits for which they are entitled.

When I contact the district office, this is exactly what I’m trying

to ensure. As a congressional caseworker, I’m here to help people

either resolve their problems or answer their questions regarding

OWCP. However, I am only one half of the whole in assisting a

constituent. To do my job effectively, I need to be able to communicate with the responsive agency to ensure that the constituent is

being treated in a fair manner.

Again, thank you for allowing me this opportunity, and I’ll be

happy to answer any questions.

[The prepared statement of Ms. Maggio follows:]

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Mr. HORN. Let me just ask one here. You handle other than

cases such as this. You probably have Social Security cases, Medicare cases, Internal Revenue cases, Immigration cases.

Ms. MAGGIO. Right.

Mr. HORN. As you look at all of those agencies with which you

connect on behalf of Representative Doyle, which is the most responsive and which is the least responsive?

Ms. MAGGIO. The most responsive is Social Security Administration. They have a congressional office in Baltimore that is very responsive. The least responsive is OWCP in Philadelphia.

Mr. HORN. I thought that would be your answer. Without question, I served on the Senate staff in the early 1960’s. Then and

now, I think most of us say the best run organization in the U.S.

Government is the Social Security Administration.

I had an interesting experience when I came back from a long

day of committee hearings about a month ago, I saw a fax from an

attorney in Long Beach, CA, where Social Security hadn’t come

through on the check that they admitted he knew. So, even good

agencies make their mistakes.

So, I wrote out a fax to the Commissioner in Baltimore and within 18 hours he had a response back to me. The check was out

there, and he apologized on the behalf of the agency for the stupidity of one of his members. That’s a very responsive operation.

So thank you for adding that to our record.

I’m now going to have the vice chairman do the questioning, Mrs.

Biggert of Illinois.

Mrs. BIGGERT. Thank you, Mr. Chairman.

Ms. Balen, you talked about the time it takes to get a case number. Is it—what does it entail to get a case number? Isn’t it just

an assignment of a number?

Ms. BALEN. I don’t know.

We’re really not in on that part of the process. All we know is

either the patient comes to us with a new injury that is—they say

is workers’ comp, and they work for the Federal Government and

we know they have these forms. There’s one particular form that

we do fill out, I think it’s the CA–16 that, according to my information, is the form that is required to initiate the process for getting

a case number.

What has to happen beyond that point, I really don’t know. I just

know it kind of takes a long time. Eventually the patient is

issued—we’ve had them come in with a little card with their case

number on it. If we have treated the patient without a case number

and we’re waiting, holding the bill, sometimes the patients don’t realize that as soon as they get that little card with the case number,

that they need to give it to us. I don’t know if it’s not stressed to

them, that you need to go give that to everybody who has helped

you with this. I don’t know what process they’re having to go

through.

Mrs. BIGGERT. Mr. Linehan said that many times since they can’t

get a response from OWCP that they have gone to the private insurance. Do you find that happening?

Ms. BALEN. We typically have not done that because what we

find, at least in my office, all insurances want to know how the injury happened and where you were. And as soon as you say it hapVerDate 11-MAY-2000 08:54 Apr 11, 2001 Jkt 010199 PO 00000 Frm 00206 Fmt 6633 Sfmt 6602 E:\HEARINGS\62686 pfrm01 PsN: 62686
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pened at work, they won’t touch it. I think that’s a good idea if it

would work. We haven’t found that it really works.

Typically what we’ve done if we have a patient who is like the

one in my example in my statement, we usually just go ahead and

do the surgery and try to get the authorization later which means

the patient ends up getting helped, but we end up holding the bag.

Mrs. BIGGERT. Since you’ve had to—the amount of money is so

much lower than other—is it lower than what was paid out in the

State for workers’ comp?

Ms. BALEN. Oh, far lower. Yes, I’ve got that in my statement.

Typically the State Worker’s Comp allows more than what we

charge, which is kind of backward. But, yes, the USDOL typically

pays less than half of our charge, and the State Worker’s Comp allows more than we charge. So it’s a considerable difference.

Mrs. BIGGERT. So you just have to write that off.

Ms. BALEN. Yes.

Mrs. BIGGERT. OK. Mr. Riordan, do you find problems with the

numbers also?

Mr. RIORDAN. Well, the number is assigned once a case worker

looks at a case. I mean, there is a delay. And if you call before

you’re assigned a case number, they can’t help you, they won’t help

you. You have to have the case number. So you just have to sit and

wait until it’s looked at.

Mrs. BIGGERT. Do you find that some people will go through private insurance rather than the workers’ comp, or do you find the

same thing that Ms. Balen said?

Mr. RIORDAN. Yeah, I don’t think they’re covered by—if they’re

injured at work, they have to file for workers’ comp.

Mrs. BIGGERT. OK. Mr. Linehan, why is it that there’s so few

lawyers that are willing—I’m a lawyer also and I’ve never done a

workers’ comp case, but why are there so few that are willing to

take these cases?

Mr. LINEHAN. A carpenter needs tools to work. An attorney needs

a court to work in. There’s no court. There is nothing really for an

attorney to work with.

Basically, I push the claim. I help—claimants come into me after

they have grown so frustrated with the system, they basically come

in to me, throw a file down on my desk that averages a foot thick

and say, ‘‘Take it and run with it. We don’t want to mess with it.

We’ll pay you whatever it takes to handle this. Just do something

to get this moving.’’

That’s where I enter the picture. I don’t enter the picture at the

beginning of the claim. The claimant is hurt and they come to me

rarely, if ever.

Mrs. BIGGERT. Are there States that you know of that have some

access to the courts from workers’ comp cases?

Mr. HORN. Can we move the mic a little closer to each of you.

It’s a little difficult to hear.

Mr. LINEHAN. I don’t understand your—you mean State comp?

Mrs. BIGGERT. Well, since there’s no Federal process to get into

court, are there State courts that take appeals from workers’ comp?

Mr. LINEHAN. Federal OWCP?

Mrs. BIGGERT. No, from State.

Mr. LINEHAN. Oh, every State.

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Mrs. BIGGERT. Every State?

Mr. LINEHAN. Yeah. Oklahoma, you have the Oklahoma OWCP

system, it’s appealable to the State Supreme Court up through the

circuit courts, et cetera.

Mrs. BIGGERT. Do you know of any reason why this hasn’t happened on the Federal level?

Mr. LINEHAN. I’m not going to comment, but yeah. It’s just— you’ve got a system that works as it is now for the system. It

doesn’t work for the claimants. From what I see, claimants who

come in are scared to death. They don’t want to buck the system.

They don’t want it to be known that they’re bucking the system.

So the system continues, it grows on itself. And that’s what’s

happened here. Nobody is bucking the system. They’re scared.

Maybe that’s why I’m here. But something needs to change. And

the only change I could see that needs to be done that will really

work—that will end a lot of these problems overnight—is allowance

for Federal court review.

And I don’t know of any reason why these civilians should be

treated any differently from any other injured, diseased or killed civilian in America. But they are. They are. They have no rights.

Zero.

Why is that? That is a question that goes back to the Congress.

Mrs. BIGGERT. Thank you.

Ms. Maggio, have you had complaints about second opinions or

doctors? Is that—— Ms. MAGGIO. Yes. I have a long, involved case. It’s actually the

case example, the termination of benefits in my written statement.

His second opinion exam was about 15 minutes long. The doctor

was supposed to be examining his left ankle, I believe it was his

left. He was examining the right ankle.

And he was also examining another injury that he had—another

work-related injury that he wasn’t supposed to be examining. And

he sent him for x-rays for the wrong ankle, the wrong knee. And

the OWCP based terminating his benefits on it—they put the

weight of the evidence in that doctor’s assessment.

Mrs. BIGGERT. Fortunately they weren’t doing surgery.

Ms. MAGGIO. Right. Right.

Mrs. BIGGERT. In a second opinion, is it usually the same doctor

over and over again in the area that would be giving the second

opinion?

Ms. MAGGIO. You mean many constituents going to the same second opinion?

Mrs. BIGGERT. Yes.

Ms. MAGGIO. I have seen a couple of the same doctors’ names

popping up with different constituents who come to the office. I

don’t know how often—I was told that it’s a revolving process

where it’s kind of they draw a name and they send the constituent

to that doctor.

But I’m not sure how often they go to the same one.

Mrs. BIGGERT. Do you sense, then, that their decisions are predetermined?

Ms. MAGGIO. Yes, I get that feeling. And I believe that—I have

one constituent who knows the FECA manual front and back, and

luckily—because he knows what his rights are. But I think that at

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times OWCP tries to send these individuals to doctors, especially

for a referee exam, you cannot go to a fitness-for-duty doctor for the

employing agency.

And I think a lot of claimants are going to doctors who are also

working for their employing agency, which is a problem. There is

a conflict of interest there.

Mrs. BIGGERT. I know that in so many States the second opinion

is the choice of the injured worker and there has been some movement to change that; to have the employers have the opportunity

to choose the second doctor. So you don’t think that would be a

good idea on the Federal level?

Ms. MAGGIO. No. No.

In my opinion, I deal a lot with postal workers who are injured.

And I think there’s a rush to get people back to work. And I think

that if the employer was able to choose the doctor, the second opinion doctor, that might have some influence on the decision of the

doctor. It’s just my opinion, but I think it would be best if it was

an outside source.

Mrs. BIGGERT. Thank you.

Thank you, Mr. Chairman.

Mr. HORN. Thank you very much.

Is there any additional point you feel has not been made that you

would like to make? This is the last call on that.

Ms. Balen.

Mr. Riordan.

Mr. RIORDAN. Well, one earlier question Congresswoman Biggert

asked was why is there a delay in processing, asked one of the earlier people that testified, why is there a delay.

Well, one of the reasons is the agency has an interest in keeping

the employee off workers’ comp because the agency has to cover the

position for a full year. So they want the employee back to work

because that position is open. And their statistics count against

that employee for production purposes. So they want to pressure

the employee to come back to work.

That’s why the personnel offices have delays, you know, delays

in processing and filling out the forms and completing them and

sending them to OWCP. That’s part of it, any way.

Mr. HORN. Mr. Linehan, anything else you want to say?

Mr. LINEHAN. No. I appreciate the opportunity to be here. And

if you have any further questions of me, I would be happy to answer them.

Mr. HORN. Well, if something comes to mind, if you don’t mind

we’ll do what we do with every other hearing, send you the question and at this point in the record, we’ll give the question and

your answer.

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Mr. HORN. So Ms. Maggio, what would you like to add?

Ms. MAGGIO. I want to state that a lot of the other agencies have

congressional offices that have a staff who handle congressional

calls only.

And OWCP in Philadelphia, they have a congressional phone line

to the District Director’s office, but it’s the claimant. There’s not a

special congressional staff to help. And I know that the claimant— or the claims examiners, they have a lot—you know, their workload

is backed up. And for them to stop and explain something to us,

just delays their work even further. So maybe as a possible suggestion for the congressional point, if there was a staff that we could

communicate with, it might be more effective.

Mr. HORN. That’s a good suggestion, I think for any agency,

frankly.

We are now finished with this panel. And I think I will try to

bring panel III forward, if they’re present. Patricia Dalton, the

Deputy Inspector General, Office of Inspector General, Department

of Labor, will be accompanied by Amy Friedlander, Evaluations

and Inspections.

And the second witness will be Shelby Hallmark, Deputy Director, Office of Workers’ Compensation Programs, Department of

Labor. And Shelby Hallmark will be accompanied by Sharon Tyler,

District Director, San Francisco Regional Office.

Mr. HALLMARK. Chairman Horn, let the record show it’s Mr., not

Ms. here. My name does go both ways.

Mr. HORN. I left it open. Thank you. If there’s any staff behind

you that are also going to advise you, we can save a lot of time if

they stand up too and you take the oath, even if you aren’t going

to do it. But it will save us from interrupting the hearing to give

oaths every 5 minutes.

OK. Would you stand, raise your right hands, and those behind

you.

Do you affirm that the testimony you’re about to give this subcommittee is the truth, the whole truth, nothing but the truth.

[Witnesses affirmed.]

Mr. HORN. OK. I saw seven members, four at the table and three

in the audience.

So let us start with Patricia Dalton, the Deputy Inspector General.

STATEMENTS OF PATRICIA DALTON, DEPUTY INSPECTOR

GENERAL, OFFICE OF INSPECTOR GENERAL, DEPARTMENT

OF LABOR, ACCOMPANIED BY AMY FRIEDLANDER, EVALUATIONS; AND SHELBY HALLMARK, DEPUTY DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, DEPARTMENT OF LABOR, ACCOMPANIED BY SHARON TYLER, DISTRICT DIRECTOR, SAN FRANCISCO REGIONAL OFFICE

Ms. DALTON. Good morning, Mr. Chairman. Thank you for inviting the Office of the Inspector General to discuss customer service

issues within the Office of Workers’ Compensation Programs at the

Department of Labor.

Over the past two decades, the OIG has devoted significant resources to detecting and preventing fraud and abuse within the

FECA program through our audits, investigations, and evaluations.

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The OIG has conducted two recent evaluations of customer servicerelated issues within the FECA program.

The first evaluation examined two timeliness issues that arose

during the July 1998 hearing held by this subcommittee.

[The prepared statement of Ms. Dalton follows:]

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Ms. DALTON. The second evaluation examined OWCP customerservice surveys from 1995 through 1998.

Following this subcommittee’s field hearing last summer, the

OIG reviewed the hearing transcript and the allegations made by

a number of claimants.

Specifically, we focused on two outstanding issues. The first issue

is the timeliness of OWCP in responding to claimant requests for

reimbursement of their out-of-pocket medical expenses.

In examining the issue of claimant reimbursement for out-ofpocket medical expenses, we found that reimbursements to claimants represent only 3 percent of all medical bills. OWCP has established standards for claimant reimbursements at the 28-day level

and the 60-day level.

At 82 percent, OWCP’s own data shows that the agency fails

short of meeting its 90 percent standard for the 28-day period.

However, it does exceed it’s 60-day standard of 95 percent by

paying 96.9 percent of all claimant’s submitted bills within 60 days.

Recently OWCP implemented an automated bill-review system

which they expect will further shorten the bill processing time.

The second issue that arose from the July 1998 hearing concerns

were concerns about the timeliness of surgical authorizations. Our

review focused on OWCP’s handling of requests for nonemergency

surgery since emergency surgery is authorized by the employing

agency.

Our review disclosed that OWCP has now an automated system

to track the time between requests for nonemergency surgery and

authorizations by OWCP. Although some OWCP district offices are

attempting to manually track this information.

While OWCP indicates the claims examiners are working to expeditiously process surgical authorizations, we could not identify an

OWCP or industry standard that is used to benchmark performance. To help improve the system, our report recommends that a

performance standard be established for responding to nonemergency surgical requests. We believe that this would help to reduce claimant uncertainty about the process.

We conducted a second evaluation where we examined OWCP’s

customer-satisfaction surveys from 1995 through 1998 to determine

whether those surveys are useful tools in assessing customer satisfaction.

Our review of the four survey reports identified a number of

problems. We found that the 27-question 4-page survey was too

long and difficult to complete. We recommended that OWCP supplement the survey with focus group data which can contribute to

a more detailed understanding of customer service and concerns.

We found that some of the five sample groups were over sampled

while others were undersampled. Sampling of a virtually equal

number from these groups does not reflect the proportional difference in the national claimant population.

We found that the questions asked in 1-year surveys—survey did

not specifically pertain to the sample that OWCP drew. Consequently, many respondents may not have returned the surveys

assuming that it did not apply to them.

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Finally, we also found that OWCP does not retain any data from

the surveys, thereby precluding its verification and the opportunity

for subsequent research.

As a result of the problems with the survey methodology, OWCP

is unable to fully discern whether Federal injured workers are

being adequately served by the process intended to help them. In

order for the survey to be useful to OWCP and better understand

the concerns of injured workers, we made a number of recommendations to help OWCP in the collection of high quality data

for performance planning and managing customer service to Federal claimants.

Despite the problems associated with the way OWCP surveys its

customers, the OIG believes that OWCP has the ability to make

the necessary corrections to allow for a more useful customer satisfaction survey. These changes, if implemented, will enable OWCP

to have a better strategic planning process and, more importantly,

help the agency to better gauge and address the concerns that injured Federal workers have with the current process.

OWCP has indicated in their response to the evaluation—to our

evaluation report the intent to make a number of changes in their

survey process.

Mr. Chairman, this concludes my prepared statement. I would be

pleased to answer any questions that you have.

Mr. HORN. We’ll hear from the administration then if you can

stay with us, we’ll have a dialog here.

Mr. Shelby Hallmark is the Deputy Director for the Office of

Workers’ Compensation Programs and the Employment Standards

Administration of the U.S. Department of Labor.

Welcome. A number of people, I think, over you were either out

of town or something is what I’m told. So you’re holding the whole

burden. Please proceed.

Mr. HALLMARK. Thank you, Mr. Chairman, for the opportunity to

come in to discuss the administration of the FECA program here

today.

As you say, I’m the Deputy Director of OWCP which is the oversight, the umbrella organization, one of our programs is the FECA

program.

I have with me today Ms. Sharon Tyler who is the District Director in our San Francisco Regional Office and the largest of the

FECA offices. She’s currently acting as the Acting Deputy Director

for FECA here in the National office.

I believe it would be helpful to review how OWCP’s strategic

plan and Government Performance and Results Act goals relate to

this whole issue of customer service that we’ve been hearing about

today and will undoubtedly continue to discuss. I think that provides a framework for what the organization is trying to do. And

I would like to talk a little bit about that this morning.

Obviously my written testimony is longer, and I would refer folks

to that for more detail.

Mr. HORN. Well, take your time. I want to give fairness to the

administration. So take your time. We’re in no hurry.

Mr. HALLMARK. I appreciate that.

Just a general word about the volume of our work. I think that’s

an important context to consider. I believe one of the previous witVerDate 11-MAY-2000 08:54 Apr 11, 2001 Jkt 010199 PO 00000 Frm 00235 Fmt 6633 Sfmt 6602 E:\HEARINGS\62686 pfrm01 PsN: 62686
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nesses indicated the degree to which claims examiners are hardworking and, oftentimes, the issues that are raised in this kind of

context are difficult.

OWCP gets roughly 8 million telephone calls and pieces of mail

each year. With our 950 employees, that factors out to almost 9,000

contacts per each and every individual in this program.

We serve roughly 250,000 injured workers, injured Federal

workers—— Mr. HORN. Let me ask at that point just to make sure the record

is clear, you’re saying they have 8 or 9,000 calls per employee?

Mr. HALLMARK. Per year.

Mr. HORN. Per year. Now, is that based on the voice mail where

somebody might have called 10 times trying to reach a human

being? What kind of data—— Mr. HALLMARK. The 8 million figure represents roughly 21⁄2 million telephone calls, which is our estimation.

We don’t have an exact number. It’s an approximation based on

our telephone systems that provide reports in some cases. We try

to delete from that duplicates of the kind that you’re suggesting.

The other 51⁄2 million items are pieces of mail, medical bills, and

so on.

Mr. HORN. Let me ask the Inspector General, have you ever

checked the telephone numbers?

Ms. DALTON. No, we haven’t, Mr. Chairman.

Mr. HORN. Would you take a look at it, and let us know. Thank

you.

Go ahead, Mr. Hallmark.

Mr. HALLMARK. Yes, sir.

We serve, as I was saying, about 250,000 injured Federal work- ers in any given year. We pay roughly $2 billion in benefits each

year and 96 percent of the cost of this program is delivered to injured workers and their medical providers which makes the FECA

program perhaps the leanest compensation system in the country

in terms of administrative costs.

Most of the injuries of that 250,000 that I’m describing are minor

ones. And OWCP basically is involved only in making medical payments for those individuals.

The major source of difficulty, some of which we’ve heard about

this morning, in those cases—and there are roughly 150,000 of

them each year—comes into play when the Federal agency, the employing agency, fails to send the notice of injury to OWCP timely.

If we have no official notice, we cannot make a payment. The individual who is from a doctor’s facility was reflecting the difficulties

that occur when that happens.

When we do have a case established, we make payments on medical bills. And, as I say, we receive millions of them, and about 90

percent of the time, we pay within 28 days. Roughly 95 percent of

the time, as Ms. Dalton was indicating, within 60 days.

About 50,000 workers are on long-term monthly wage-loss replacement benefits from OWCP. For them, we have a much more

intense involvement. We serve as their payroll office as well as

dealing with medical issues and other assistive services.

A smaller group of individuals receive wage-loss benefits from us

on a part-time basis or interim basis during the year, and then, in

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most cases, return to work. And a smaller group still each year, approximately 18,000 cases, are denied. And, obviously, in those cases

many of the difficulties that some of the previous panels have

talked about can occur where there are obvious differences of opinion regarding the nature of the case.

A little history would be helpful, I think, in evaluating the FECA

program. We fell behind dramatically in the 1970’s in this program

in handling the basic workload, getting cases adjudicated and making payments. During the 1980’s, we instituted a number of initiatives to get a handle on that workload.

We established numerous performance measures and standards

to provide a target, and we held our staff accountable for accomplishing those timeframes. As a result of that, since the mid-to late

1980’s, we have been able to adjudicate our cases as they come in

the door relatively promptly, and we believe the great majority of

cases are, in fact, expeditiously handled.

Roughly 90 percent of all cases coming in the door are approved.

When the GAO and the OIG have audited our programs, they have

uniformly found that our processes are basically fair and reasonable.

However, we recognized at the close of the 1980’s that there were

a number of continuing problems in this program. And the strategic plan that I’m about to describe to you which has evolved as

now being a part of the Government Performance and Results Act

effort, basically was developed to address how this program can

transform itself to address the major issues that we saw.

And those issues really were three major components. One, customers were frustrated with our ability to communicate with them

effectively; two, we found that the individuals on our long-term

rolls were often staying on the long-term rolls even when it appeared that their injury was not totally disabling; and, three, the

costs of the program were escalating.

Analyzing those issues, as I said, we chose to try to transform

this program, and our strategic plan basically amounts to a transformation plan.

The plan basically has four elements. One is return to work,

making injured workers whole by aiding them in getting back to

the work place. We have found that throughout the world the benefit and importance to society, to the individual, to the family, of

individuals being a productive member of society is key.

Two, improving overall customer service. Clearly that’s the topic

of our conversation most directly today.

Three, enhancing fiscal integrity.

And, four, enhancing agency and union partnerships throughout

the Federal Government to accomplish all of the above goals.

That strategic plan was, by the way, established as the partnership activity within our own Department of Labor family.

We believe we’ve made important strides. And my written testimony addresses the accomplishments of the organization in terms

of those specific measures that are identified in our GPRA plan including return-to-work measures, cost-containment measures, and

customer-service measures.

But clearly the customer-service component of our plan is the

most challenging aspect for this program to achieve. We have made

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progress. All three of the measures that we report on for customer

service are showing steady improvement, but we’re not satisfied

with those improvements. And clearly we will continue to make enhanced efforts.

Customer service is, by definition, a labor intensive and very expensive undertaking. And shifting our staff’s central concern or

view of what they do in their job from being an adjudication and

paper-processing operation to being an interactive, dynamic, service-providing operation is a long-term undertaking. We believe it

will take time, it will take improved tools, and it will take training.

We know we have a long way to go, and we’re working hard to get

there.

I cite a few examples of what we’re doing. Let me just give you

a few of the things that are in my written testimony. First, we’ve

gotten more staff. In 1999, we received a 10 percent increase in

staff which had been sought for a number of years. It takes more

people to be more responsive in a program like this. And even with

that 10 percent increase, OWCP has among the highest per FTE

caseloads of any program of this kind.

I mentioned earlier that we get about 8,000, 9,000 calls and letters per person. A 10 percent increase in staff amounts to an 800

or 900 per person per year reduction, and that’s not small.

That will have a major impact on the ability of this program to

meet the needs of the individuals we heard today and all the other

individuals who come to us seeking services.

[The prepared statement of Mr. Hallmark follows:]

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Mr. HORN. If I might point out, just to get it in the record, because it is sort of relevant and I was going to ask it anyhow. You

mentioned the 10 percent increase. We are now in fiscal year 1999,

and we are considering fiscal year 2000. Has your office, program

within Labor, and you personally asked for the appropriate resources in the last 2 years or did you ask even earlier, like 1993–

1994? After our hearing in Long Beach, I would hope that somebody got the message and said, gee, let’s solve some of these problems. Have you asked for those resources at your program level?

Mr. HALLMARK. I believe the record will show that OWCP has

been seeking substantial additional staff resources at least, probably before this but certainly starting with the 1992 budget. A

small number of staff were approved—additional staff were approved in 1992. We renewed those requests. A small additional increment was added in 1995. Unfortunately, in 1996, our resources

were cut; and we were obliged to conduct a reduction in force.

Mr. HORN. Let me ask——

Mr. HALLMARK. So there is a long history of trying to accomplish

that.

Mr. HORN. So your program reports to the Assistant Secretary

for Employment Standards, essentially?

Mr. HALLMARK. Correct.

Mr. HORN. He or she, in turn, reports to a Deputy Secretary of

Labor and the Secretary of Labor. Did they approve your recommendations for more funding to help get at the backlog that Mr.

Riordan mentioned? Where did it go up the line? How far did it go

positively, let’s say, from your standpoint? Did you have the support of the Assistant Secretary and the Deputy Secretary and the

Secretary?

Mr. HALLMARK. I’m casting my memory back over the number of

years that we are talking about here which, unfortunately, now is

7 or 8. My recollection is that, in most of those years, the requests

made by OWCP were, in fact, at least in part passed forward

through the system. I can’t say with certainty that they appeared

as part of the President’s budget in every case, but in most cases,

yes, they did, at least in part.

Mr. HORN. So the Office of Management and Budget, then, made

a decision one way or the other. And then comes the question, did

the Secretary appeal the decision to the President, if it was a cut;

and what eventually happened?

I don’t expect you to carry all those figures in your head right

now. What I want to do is make a little matrix of that and put it

in the record at this point, without objection. Then I would like to

know if the President did make a recommendation and agreed with

your recommendations. What did the Congress do in 1993, 1994,

which was a Democratic Congress, and after that in Republican

Congresses? Did they cut you? Did they add to it? Was there a difference between the Senate and the House?

If you could just get your fiscal people to give us that type of

chart. And staff here will work with you. They will know what I’m

after here. It is sort of my usual management routine of, did you

get it or didn’t you and who sat on it so we can pin a little responsibility.

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If it is Congress’ problem, fine, we will deal with them, the Authorization Committee and Appropriations Subcommittee. If it is

the administration’s problem, fine, we will deal with them. But I

would just like to have that—to the degree to which people asked

for the resources they need and justified it.

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Mr. HORN. Now, in this strategic plan, which was new to all of

the executive branch and was asked for it 5 years before they had

to do it—and I want to go through that now with the Inspector

General. I hope you have a copy of that, do you, of their strategic

plan?

Ms. DALTON. I don’t have it with me.

Mr. HORN. Can we give Ms. Dalton a copy of that? I think the

staff here has it.

What I want to do is just go through those charts that you have

in your appendix, and I would like the Inspector General to take

a look at those and see what they could provide. Because you are

doing the right thing in the sense of looking at the goals you should

achieve in a matter of time and dealing with the cases and so forth.

The gripe I have heard from hundreds of Federal injured workers

is that, too often, they don’t get approval to get the medical therapy

that they need if they are going to get back to work and that, I

think, we have just got to focus on, who sits on those appeals and

who lets them go. I think that is one of the things we need to deal

with.

Here on the Department of Labor’s Strategic Goal 2, A Secure

Workforce; and your Outcome Goal, Protect Worker Benefits. Now,

you say fiscal year 1999 funding, not known. Cost accounting for

discreet GPRA, which is the Government Performance and Results

Act, which we take very seriously up here—I think we have to take

a look at these in terms of the Inspector General for Labor as a

whole and say: Is there something else that can be done here? Does

what you want to do in your strategic goals really relate to what

your fiscal plan is when you send it over to OMB and the President

as to the resources you need?

So I just think we need a little analysis of that. Is this just talk

and hokum or is the money there? As they say, where’s the money?

And we need to know that. And we need to know if the money was

given. Some agencies never put it on computers, they put it on people. Others put it only on computers and don’t put it on people. So

some of what I would like to do is just have your two offices work

it out, put it in the record at this point.

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Mr. HORN. I think the question raised by Beth Balen, administrator of the Anchorage Fracture and Orthopedic Clinic, is a very

good one. To what degree is the power there for the Office of Workers’ Compensation Programs to adjust based on cost of living? San

Francisco is a pretty high living place. Seattle, we know is; certainly Alaska is.

Do you have the authority to adapt those to the point, Ms. Balen,

made in terms of things they just have to write off because it isn’t

reasonable in terms of their own economy?

Mr. HALLMARK. Yes, Mr. Chairman. The OWCP fee schedule is,

in the case for the Anchorage institution, is a relative value fee

schedule which we adopted based on—originally based on the

Washington State Workers’ Compensation Program System and

subsequently modified to follow that used for the Medicare program

as established by the Health Care Financing Administration. It is

geographically based. That is to say, there is a component of the

system that takes into account cost of living, cost of business, cost

of real estate, et cetera, in the different geographical regions.

We are aware that some States have higher fee schedules than

the OWCP schedule; others have lower. Our schedule, at least at

the last review we did, fell almost exactly in the middle. I think

there are 23 States below and 26 or 27 States higher. So we have

attempted to be—to address geographical issues.

Obviously, in the case of Alaska, what we are hearing today is

that, from the perspective of at least this provider, set of providers,

our schedule is too low for that State. It is something that is a part

of our regulatory structure. We can look at it to determine whether

there is a need for adjustment in that regard, and we will do that.

Mr. HORN. Another point Ms. Balen made, which makes sense to

me, is easier access to claim payment office. What are we doing on

that front?

Mr. HALLMARK. If by that she is referring to the issue of telephone calls and of calling in to address ways of resolving problems,

we have a whole series of things we are trying to do to accomplish

exactly that.

I didn’t quite get through my statement, but it addresses some

of the issues that we are trying to work on now in terms of improved communication systems, improved technology. We’re moving

to a fully electronic world which we believe will have a tremendous

impact on customer service.

One of the problems, and cited by some of the panel members

this morning, has been that keeping track of millions of pages of

paper is a very difficult task. We believe that an imaging system,

which we are currently building and expect to implement in 19— I’m sorry, fiscal year 2000 will greatly improve our ability to handle a wide range of these issues and especially medical bills.

All of our offices have communication plans. All are trying to

work on improving the access to telephones. We have, I believe, in

almost every office, if not every office, ways for individuals to call

and receive an individual response. Sometimes, as we have seen

today, that doesn’t work. We’re obviously working hard to improve

it.

Mr. HORN. One of the questions that came up was the difficulty

of tracking a case if you did not have the case number. Isn’t there

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a way to solve that with a master index by name and the last four

digits in the Social Security number or something like that?

Mr. HALLMARK. Mr. Chairman, we have that. I think in the vast

majority of cases, the problems that Ms. Balen was referring to, the

Federal agency hasn’t sent us the claim. If they haven’t sent us the

claim, there’s nothing for us to interface with. We don’t have an

electronic connection to the Department of the Interior or the Forest Service to find out information about an individual who has

been injured. It is only when the notice of injury comes to us that

we can create that electronic record with the name, with the case

number, with other identifiers.

Mr. HORN. On that point, suppose an agency doesn’t give them

the forms? We had testimony to that effect. And certainly, when I

met with a number of Federal injured workers, and it has been

mentioned already this morning, a lot of them are U.S. Postal Service employees, they couldn’t even get the form out of their personnel office. Can’t they apply to your agency and get the forms if

we have got the post office in parts of the country refusing to recognize there’s a problem here?

Mr. HALLMARK. Well, we are certainly aware of the legal requirement that Federal agencies have to do this work and to do it with

speed, and where we see—where we have evidence that is presented to us that, in fact, agencies are knowingly restricting or obstructing this program, we take action, and we take it right to the

top of the agency to try to get it attention and get the problem

solved. In fact, our IG conducted several years ago a joint study

with the Inspection Service of the Postal Service to address and try

to pinpoint exactly that kind of problem. So we are anxious to address that kind of issue, and we do.

I would note, however, that oftentimes we do go back to the

agency, and we heard one individual replying today who had trouble, apparently, getting information from the agency about the fact

that he was an employee. We can only do so much. We can go to

the agency and ask them. We are not an enforcement agency. We

cannot force a Federal agency to hand us materials which they

don’t do.

Obviously, at a certain point we can move to a U.S. attorney and

seek to achieve some sort of prosecution, but our U.S. attorneys are

also busy individuals, and it is difficult to make that kind of case.

Mr. HORN. Other points that Ms. Balen made, which certainly

are those that we have had, less paperwork for the patient, employer and physician to complete, which would speed up the entire

process, make it less prone to error; and she elaborates, overall

simplification of the process by reducing the length and number of

forms; the authorization process, whereby a condition is accepted

as work-related; and improvement in access to the claims office.

There may be States with workers’ compensation systems, such

as the State of Washington, just south of Alaska, which would work

well and might be used as a model. Has the agency looked at some

of the State systems and how they have speeded this up so the

worker is not dangling out there not knowing whether they are

going to be covered or not covered or the medical bills are going

to be paid? What are we doing to just help the average citizen that

is a Federal worker?

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Mr. HALLMARK. We have looked at the information that is available for a number of State systems. There is something of a paucity

of actual performance information about how the different States

work. Some of that information is proprietary because the systems

are private, insurance-driven systems.

We have a number of initiatives in place to do many of the

things that Ms. Balen was referring to.

We have just recently moved to automated receipt and payment

of pharmacy bills. That started in July 1998. We believe that will—

as the IG report indicates, we believe that will significantly improve service to claimants who will no longer be required to make

out-of-pocket payments because the pharmacy can readily and

quickly send the bill to us electronically and receive payment directly from us.

We are likewise working on electronic billing processes for physicians and for hospitals, and we are looking at electronic transmission. We are working with the Postal Service, VA and DOD

right now to ensure that we can get the electronic claim in the first

place.

All of these things will not only speed up the process, they will

cut down the amount of confusion with respect to submitting forms

and other paper. It is understandable that a doctor in Alaska, who

may not deal with OWCP that much, knows the laws and the procedures in Alaska but the OWCP Federal process is different. So

we want to try to smooth that.

I would also note that where we receive the information from a

doctor with regard to the medical evidence that we need, if we receive it in the form of notes or other materials, if it is the information we need, we are not going to send that back and say, no, no,

it must be on this form and you must fill out box 3. We have to

have the claim in the first place, but once we have the claim, we

do our best to try to use the information that we can, in fact, procure.

Mr. HORN. Mr. Linehan noted in his recommendations that we

just allow the Federal employees to have a basic right of Federal

Court review of the workers’ compensation claim and the due process? Has the administration thought of recommending that?

Mr. HALLMARK. I can’t speak for the administration as a whole.

Mr. HORN. Well, let’s say the administration of the agency and

then move it to the administration of the Department and on up.

Mr. HALLMARK. It is OWCP’s view that the FECA program is

structured along the lines of the model workers’ compensation programs as they were created in the early part of this century. The

intent of workers’ compensation was to be a no-fault nonadversarial program. The intent was to ensure that benefits could be delivered quickly to injured workers without the attendant difficulties

that had been experienced in the tort system.

Now, many State systems have moved back in the direction of

litigation and the kind of lawyerly process that Mr. Linehan suggested. We don’t believe that’s necessarily the best policy approach.

The reason why OWCP delivers 96 percent of its $2 billion benefits

to the injured workers and their medical providers is because we

have a straightforward, nonadversarial process.

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Now, obviously, we want to make it work better; and we are anxious to make it work better.

Mr. HORN. I guess I would ask, is it really nonadversarial? It

sounds like it is the clientele versus bureaucracy and it is fairly adversarial.

Forget the applause, please.

It just seems to me that the job of the agency must, overall, be

fairness. You don’t have to save the pot of money, and I hope that

isn’t the way you are judged. What you have to do is make sure

that if people have an injury that is work related that they can be

processed and have the benefits that the law provides. And as an

administrative agency, it seems to me, if I were the head of it, I

would be saying, hey, folks, there has to be a turnaround here in

attitude.

It is exactly the same problem that Commissioner Rossotti faces

in the Internal Revenue Service when we had long rows of witnesses from all over America before the Ways and Means Committee and Senate Finance that said, hey, we have been treated

like dirt. We have a problem here. Who is going to do anything

about it? Well, Congress did do something about it. They put an

advisory board in.

Of course, the President hasn’t submitted one name yet, and he

fought us tooth and nail on doing anything to change the bureaucracy, but he signed the bill. And it could be that we need to do that

to a number of agencies, maybe yours included, with an outside

board that could look at and be available for complaints when people aren’t served.

Now, I realize there are a lot of people that don’t deserve the

benefits. I had that under workers’ comp. I understand that. And

there’s a lot of people that think the government owes them a living, and when they retire they decide to figure out some injury to

get additional benefits. I know all of that, and I have been through

it as an employer, as head of a university.

It was very simple. We just told our lawyers, if we are going to

have this nonsense and they are fraudulent claims, let’s make

them know that they’re in for a battle. And once you do that, usually that type of person that thinks they can get a few bucks when

they aren’t injured, or faking an injury, that type of person usually

is going to go somewhere else and not take on the people.

But, again, that becomes an adversarial process. Sometimes it

has to be, and you will let a neutral, such as a judge, decide what

was right here and what was wrong. All I am saying, and I think

all Congress would say is, look, if people who are Federal employees have injuries, we want to treat them fairly. And your administration here of the agency, we have got to deal fairly. And if it

means firing a few Regional Directors and firing a few caseworkers,

I realize that’s hard with the Civil Service, but maybe the whole

thing should be privatized. I don’t know, but you have got to get

responsiveness out of the bureaucracy.

I have found that usually, when you set the goals, the people will

respond if they are fair and want to do the right thing. But there

are always some in every organization, I don’t know about this one,

yours, anyone down the street, that people just don’t get the message that the clients aren’t out there just so they can have a job.

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They have a job so they can help people, and that’s what we need

to focus on here.

I guess I would ask you this: Do you make your Federal Employees’ Compensation Procedure Manual available to injured Federal

workers to help assist them through the appeals process? What is

the policy of the agency on that?

Mr. HALLMARK. Well, we have the Federal procedure on the

Internet. It is available. We have recently updated our regulations

to make them in a question-answer format to make them more usable for injured workers and their representatives as a means for

pursuing their claims straightforwardly.

And I need to take a little issue with Mr. Linehan’s position that

there are no rights for individuals and that no one is looking over

OWCP’s shoulder. We have well-established and multiple avenues

for appeal within the agency and outside the agency to the Employees’ Compensation Appeals Board. It does provide an objective review, and as do the reconsiderations and oral hearings that are

provided within the agency.

In addition to that, an individual who can show or allege that a

violation of their constitutional rights has been effectuated by

OWCP can take their case to the District Court, and some do. So

it is not the case that we are without any oversight. In fact, we

have, as I said, I believe a reasonable process.

Mr. HORN. Well, you have two appeal processes, don’t you?

Mr. HALLMARK. Actually, three.

Mr. HORN. Three? Because I think there is a confusion out there

as to whether these are real appeals. And maybe I’m all wrong on

that, but one does the same thing the other does, and is it really

an outside appeal?

Mr. HALLMARK. The three processes are first, reconsiderations,

which are done within the district office. When a reconsideration

is done, it is done by a claims examiner who has had no involvement in the case previously; who looks at it with fresh eyes.

I don’t have the data right now, but I think that something over

35 percent of reconsiderations, possibly higher than that, result in

the original decision being overturned. So we have good reason to

believe there are fresh eyes being applied.

Second, the oral hearing is done by staff located here in the national office who travel to the site and do a complete review, including presentation of evidence. Something in the neighborhood of 30

plus percent of those cases are overturned and sent back for further processing because they have found that an error was made.

Third, the ECAB, likewise, is an independent organization which

reviews the entire case file as it is presented, and I believe something less than 30 percent of those cases are overturned.

So the process from our perspective, appears to work. Obviously,

we continually monitor it, and we look at the quality of our cases.

We have an elaborate accountability review process, and one of our

customer service measures is to ensure that our decisions that we

are making in the first instance are correct or according to procedure. We measure that very closely, and we report that as part of

our GPRA plan.

Mr. HORN. Let me continue on this appeal process. You were

probably in the room when the Sheila Williams case was menVerDate 11-MAY-2000 08:54 Apr 11, 2001 Jkt 010199 PO 00000 Frm 00340 Fmt 6633 Sfmt 6602 E:\HEARINGS\62686 pfrm01 PsN: 62686
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tioned. She is Acting Director, and Mr. Chamberlin phoned and

said, could you explain the appeal process to me? Now, all I can

say is if it is so simple why would she have to do research to answer Mr. Chamberlin’s question?

Mr. HALLMARK. Well, I can’t speak to the exact circumstances,

obviously, in that particular case. Every single case is different.

The response that one needs to make in a given case may have to

do with the particular appeal rights that were issued by the previous decider. And, in this case, it is possible that the appeal rights

that were issued by the decider were incorrect.

Ms. Williams happens to be in the room here this morning, so

I don’t know whether she can speak, and we are governed by the

Privacy Act in discussing individual case issues, so I don’t want to

go too far down the line of suggesting specifics.

Mr. HORN. We would be glad to have a letter and put it at this

point in the record if she feels she has been misquoted, et cetera.

Mr. HALLMARK. And if I could just beg your indulgence, I would

say that Ms. Williams, who is our Deputy Director for FECA and

is Acting Director right now, in the regular course of her work

talks with hundreds of claimants, their representatives, congressional staff and so on on a regular basis. And she is—I believe we

could find many, many individuals who would tell you that she is

not only gracious and helpful but that she goes out of her way on

every single day to provide the kind of services that I think you

would want if you were an injured worker. I think that is true of

Ms. Williams, who is an extraordinary person; also true of the vast

majority of our staff who are working very hard.

Mr. HORN. Well, as I remember the testimony, it wasn’t that she

wasn’t helpful, it was that she said I’m going to have to do research

on this and never got back to the individual. So we need to

straighten that out with a letter.

Mr. HALLMARK. We will certainly reply for the record.

Mr. HORN. All right. Now, I guess I would ask Mr. Hallmark, the

testimony regarding Regional Director Hamlett, and that has been

confirmed by two witnesses, does the agency plan to have a little—

I guess in China it would be Mao, putting people in the fields to

get right with what they ought to be doing as opposed to what they

are doing. So did that shock you, that the Director would come

screaming down the hall and all that?

Mr. HALLMARK. I had been informed by Mr. Hamlett that this

event occurred. He had advised me somewhat differently about the

circumstances. We will certainly investigate.

Now, having heard in some detail what we heard this morning,

we will certainly investigate to determine what actually happened,

both in the event that occurred in the hallway and on the conference call that was also described at some length in Mr. Riordan’s

testimony.

Clearly, our folks try to be as courteous and sympathetic as they

possibly can be. There are occasions where emotions run high. If

we are discourteous in ways that are inappropriate, we need to

take remedial action. Whether it is a reeducation process, as you

suggest, we will have to determine.

Mr. HORN. With Ms. McGuinness’ testimony there was also the

testimony about District Director John Lawrence, and that has

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been submitted for the record. It will be transcribed and we will

send you a copy of it, and you can ask us, or please file if you think

further comment is necessary on that to clarify it one way or the

other from the agency’s standpoint.

Mr. HALLMARK. Yes, sir.

Mr. HORN. Now let me go to what I regard as a very serious aspect, and that is the subcommittee has learned of adverse personnel actions that were initiated against Joseph Perez, a former

hearing representative for the Office of Workers’ Compensation

Programs. We hope there has not been any negative recourse taken

against Mr. Perez for his whistle-blowing activity or his testimony

before the subcommittee last year. The timing of this has us concerned. Do you know anything about it?

Mr. HALLMARK. As it happens, I do. I’m part of the process that

has been involved in the particular instance you talk about.

Again, under the Privacy Act I don’t know that it is appropriate

for me to get into specific discussions with regard to personnel actions. I certainly would be willing and eager to provide information

for the record, but I certainly don’t want to violate the Privacy Act

in this hearing.

Mr. HORN. Well, we will be glad to insert your comments in the

record at this point without objection.

I will tell you that when congressional witnesses are sanctioned

by agencies when they are telling the truth, it makes us very unhappy up here; and that happiness or unhappiness only goes away

when we cut about half the administration’s office budget and see

how they like that for a while.

But I have told one Cabinet officer if he fires that Inspector General he will be up here quite often under subpoena. Inspector Generals are there to do their duty, and they have done a great job

over the last 20 years, and all I can say is I would not punish a

witness before a congressional committee. That upsets people. And

I don’t care how they cover it up, it looks that way.

And I would just say if you have got an answer for it, great, we

will file it for the record, we will take a look at it, but we don’t

think that’s the way you treat people. We have had that problem

in the Pentagon in spades over the years. So that doesn’t make us

too happy.

Let’s see. We have about one more item, and then I think we can

call it a day. Some of them we will send down to you because it

will take staff work to give us an answer.

The Inspector General’s report on the medical authorizations,

Ms. Dalton. The subcommittee has heard many complaints from injured Federal workers, as I have noted earlier, that it takes an unreasonably long time to receive authorization for a surgery, that

sometimes their immediate injury gets worse during the waiting

period. Does the Office of Workers’ Compensation Programs set

standards to measure how quickly and efficiently it is making decisions?

Now, Ms. Friedlander, I think you are supposed to be the expert

on evaluations for the Inspector General. What can you do to educate us on how do they measure their performance and do you feel

the claimants are well informed through the process?

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Ms. FRIEDLANDER. Mr. Chairman, it appears to us that claimants

are confused at times, and we make this recommendation with the

hope that if claimants get a prompt response, they at least know

that the agency has heard them.

We heard today information confirming that suspicion that we

have, and we think that this first step, if we tried it, and then we

measure the results of that, would tell us whether we need to take

any further steps or whether this is enough.

Mr. HORN. Any comments to add to that, Ms. Dalton?

Ms. DALTON. No, I think I would just concur with what Ms.

Friedlander had to say. As we looked at the data we did not find

serious problems. We had looked at 69 cases out of the Philadelphia region and, on average, an authorization was provided within

26 days. However, there were a number of outliers in that group.

Mr. HORN. On the survey in general, I guess I would ask, as you

looked at the customer service at the Office of Workers’ Compensation Programs, do you find their customer service survey a useful

tool for providing information about customer service? I mean, how

many questions do you need? I’m familiar with this with faculty

evaluations by students, and I have found that really about one or

two questions is all you need to find out what’s really going on in

the classroom. How about you? What’s the situation here?

Ms. DALTON. We found the survey, as I said in my testimony, to

be too long, too complex, and that it certainly could use significant

improvements. And we made a number of suggestions to the Office

of Workers’ Compensation Programs on how to go about that as

well as to improve the way that they are drawing their sample to

get more reliable information. The way it is being done right now

we did not feel it was a good measure of customer satisfaction, and

certainly there is room for improvement.

Mr. HORN. Well, I would agree with you on that, and we have

had submitted to us from people all over the country a lot of different surveys, and we will put an exhibit in the record on those

surveys and what they show us one way or the other. So we thank

you for going over that.

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Mr. HORN. Mr. Hallmark, is there anything you would like to

sum up on? Feel free. We will keep the record open, obviously.

Mr. HALLMARK. I wanted to speak for a moment about the medical authorization issue. We appreciate the work that the IG has

done in this area. Prior to this, we had established in each Regional Director’s performance agreement a requirement that they

begin this year to capture data with respect to the whole range of

medical authorization, following in part on the issues that were

raised last summer in Long Beach.

We intend to look at that data closely and determine what areas,

if any, we think need to have a performance standard and what

that would look like. It is a complex issue because some things can

be done very quickly, other things require a second opinion. If it

is a back surgery and a complex issue, we don’t want to establish

a standard that would, in effect, not fit the circumstance where our

most significant problems are. So that is the tack that we have

taken within OWCP, and we expect to address it.

Again, I would say, in summary, that I think we are aware of

the need to provide much better customer service. We have projects

in place to try to do that.

One of the issues that I believe you mentioned yourself, Mr.

Chairman, about the attitude of workers in this program, is something that we have been working on and are continuing to work on.

As I say, this is an effort on our part to transform ourselves to become a dynamic service entity; that is, to view ourselves as service

providers rather than gatekeepers. We are going to get there, and

we are working very hard to do that.

There are some cases where denials occur, where disputes, oftentimes long-standing disputes, between the employee and their employing agency are intense. They get transferred to the OWCP environment when a denial occurs or information doesn’t change

hands, and we end up with the difficulty of trying to address those

cases. It is a very hard thing for us to do.

I think our folks struggle very manfully—and womanfully—to try

to accomplish it, and we are going to continue to try to make that

performance better.

Mr. HORN. Very good. At this time I would like to place in the

record a statement from John D. McLellan, Jr., a former Director

of the FECA Program. The statement outlines his thoughts concerning the administration of FECA at the OWCP.

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Mr. HORN. I would also like to read into the record the people

that helped develop this hearing besides the Federal injured workers that we heard from from all over the country, which were very

helpful.

J. Russell George, the staff director, chief counsel, who is not

here right now, and that’s for the Government Management, Information, and Technology Subcommittee.

On my left, your right, is the gentleman that prepared most of

the work on this hearing, Matthew Ebert, an excellent senior policy

adviser to the committee.

And Bonnie Heald, director of communications, is back here; and

next to her is Mason Alinger, our clerk for putting this all together.

Faith Weiss, minority counsel, is over here; and Earley Green, minority staff assistant.

We had two court reporters today, Julia Thomas and Pam Garland; and we had two sign language interpreters, Jan Nishimura

and Earl Fleetwood.

We thank you all for your help; and, with that, this hearing is

adjourned.

[Whereupon, at 12:38 p.m., the subcommittee was adjourned.]

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