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FEDERAL WORKERS COMPENSATION PROGRAM:

ARE INJURED FEDERAL WORKERS BEING

TREATED FAIRLY?

HEARING

BEFORE THE

SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,

INFORMATION, AND TECHNOLOGY

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

SEPTEMBER 21, 2000

Serial No. 106–268

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

HELEN CHENOWETH-HAGE, Idaho

DAVID VITTER, Louisiana

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

JAMES C. WILSON, Chief Counsel

ROBERT A. BRIGGS, 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

HEATHER BAILEY, Professional Staff Member

BRYAN SISK, Clerk

TREY HENDERSON, Minority Professional Staff Member

(III)

C O N T E N T S

Page

Hearing held on September 21, 2000 ..................................................................... 1

Statement of:

Dalton, Patricia, Acting Inspector General, Office of the Inspector General, U.S. Department of Labor ................................................................... 60

Fox, Gregory A., American Federation of Government Employees Office

of Workers’ Compensation Program representative ................................... 23

Hallmark, Shelby, Acting Director, Office of Workers’ Compensation Programs, Employment Standards Administration, U.S. Department of

Labor .............................................................................................................. 47

Sydnor, Reginald L., Federal Workers Compensation claimant ................... 7

Walsh, Michael J., Employees’ Compensation Appeals Board, U.S. Department of Labor ......................................................................................... 30

Weiser, C.B., attorney, Weiser Law Offices, Marshall, TX ........................... 17

Letters, statements, etc., submitted for the record by:

Dalton, Patricia, Acting Inspector General, Office of the Inspector General, U.S. Department of Labor, prepared statement of ............................ 62

Fox, Gregory A., American Federation of Government Employees Office

of Workers’ Compensation Program representative, prepared statement

of ..................................................................................................................... 25

Hallmark, Shelby, Acting Director, Office of Workers’ Compensation Programs, Employment Standards Administration, U.S. Department of

Labor, prepared statement of ....................................................................... 50

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

California, prepared statement of ................................................................ 3

Sydnor, Reginald L., Federal Workers Compensation claimant, prepared

statement of ................................................................................................... 12

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

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

Walsh, Michael J., Employees’ Compensation Appeals Board, U.S. Department of Labor, prepared statement of .................................................. 33

Weiser, C.B., attorney, Weiser Law Offices, Marshall, TX, prepared statement of ........................................................................................................... 19

(1)

FEDERAL WORKERS COMPENSATION PROGRAM: ARE INJURED FEDERAL WORKERS

BEING TREATED FAIRLY?

THURSDAY, SEPTEMBER 21, 2000

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

2247, Rayburn House Office Building, Hon. Stephen Horn (chairman of the subcommittee) presiding.

Present: Representatives Horn and Turner.

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

Heather Bailey, professional staff member; Bonnie Heald, director

of communications; Bryan Sisk, clerk; Elizabeth Seong, staff assistant; George Fraser, intern; Trey Henderson, minority counsel; and

Jean Gosa, minority assistant clerk.

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

Today, the subcommittee is continuing its examination of the Office of Workers’ Compensation Program administered by the Department of Labor. This program was established to handle workers’ compensation claims in a non-adversarial manner for civilian

Federal employees. In 1998, however, this subcommittee became

concerned about the numerous complaints it was receiving from

Federal injured workers about management practices and customer

service at the Office of Workers’ Compensation. These concerns include claims of long delays in the adjudication of disputed cases,

lost case files and claims examiners who refuse to respond to inquiries on pending cases.

Unfortunately, Federal compensation claimants, case workers

and attorneys are still contacting the subcommittee, saying that

problems addressed at previous subcommittee hearings have not

been fixed. Meanwhile, these injured employees go without compensation for months, sometimes years, as OWCP attempts to resolve their cases. Many of these workers say the delays have

caused them financial or professional difficulties and often led to

ruin.

In the next few weeks, the subcommittee will be asking the General Accounting Office to conduct a study to further examine the

management customer service practices at the Office of Workers’

Compensation. It is imperative that Federal workers injured on the

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job be fairly compensated for legitimate claims. We will look closely

at the General Accounting Office’s findings and recommendations

for improving, exiling, or reorganizing the program.

I encourage today’s witnesses to present their thoughts on how

to improve this vital program for Federal employees. I welcome

each of you today and I look forward to your testimony. The ranking gentleman, Mr. Turner from Texas, is right on the spot. I yield

to him for an opening statement.

[The prepared statement of Hon. Stephen Horn follows:]

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4

Mr. TURNER. Mr. Chairman, due to my tardiness, I’ll just file my

statement for the record.

[The prepared statement of Hon. Jim Turner follows:]

5

6

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Mr. HORN. No, take your time. It’s a slow day, and everybody has

a cough, I find. Are you OK?

We’re going to swear in all witnesses here, as we have done before. So please stand and raise your right hands.

[Witnesses sworn.]

Mr. HORN. The clerk will note that all six witnesses and the

backup have taken the oath.

So we start with Reginald Sydnor, a Federal Workers’ Compensation claimant, formerly an attorney with the Equal Employment Opportunity Commission. Mr. Sydnor.

STATEMENT OF REGINALD L. SYDNOR, FEDERAL WORKERS

COMPENSATION CLAIMANT

Mr. SYDNOR. Mr. Chairman and distinguished members of the

subcommittee, I 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 the Department of Labor Office of Workers’ Compensation actions for analysis

to improve effectiveness and efficiency.

Upon my graduation from high school, I attended college on an

athletic scholarship and graduated with honors. In 1968, I was

drafted into the military and honorably discharged in 1970. I received an academic scholarship to law school, from which I graduated in 1973. I was in private practice as township solicitor and

administrator for the Law Enforcement Administration, Drug Enforcement Administration Task Force, before I became employed as

a civil rights trial attorney with the Equal Employment Opportunity Commission in September 1978.

I litigated civil rights cases in numerous Federal district courts

and traveled throughout New England, western Pennsylvania, New

Jersey, West Virginia and Georgia. In April 1982, I was promoted

to a supervisory trial attorney. I became responsible for the trial

litigation of eight trial attorneys, traveled extensively throughout

the Federal district courts in western Pennsylvania, West Virginia,

New Jersey, Florida and Georgia.

On July 14, 1992, during the performance of my supervisory trial

attorney duties, I lifted an unsuspecting heavy trial file box and

suffered a freak low back injury. I suffered extensive pain from the

injury, and despite painful efforts, found it difficult to perform the

physical demands of travel in the performance of my supervisory

trial attorney duties and responsibilities.

I worked until August 21, 1992, when my treating physician, a

board certified orthopedist, directed that I cease working until the

back injury could be effectively treated. The DOL OWCP agreed

with my treating physician and placed me on Office of Workers’

Compensation Program benefits, effective August 21, 1992. I never

returned to work for the EEOC after August 21, 1992.

It must be noted, from the time I commenced my employment

with the EEOC until August 21, 1992, my annual performance ratings always ranged from fully successful to outstanding performance. In fact, when I was the Acting Regional Attorney for the

Philadelphia District Office legal unit in 1989, my legal unit reVerDate 11-MAY-2000 10:38 Dec 13, 2001 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 C:\DOCS\74832.TXT HGOVREF1 PsN: HGOVREF1
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ceived an EEOC Chairman Thomas outstanding performance

award.

It must also be noted that after August 21, 1992, I also commenced receiving Office of Workers’ Compensation claim-related

problems. Problem one, my employer’s retaliation and the Office of

Workers’ Compensation Programs’ inaction. Regarding EEOC employment, the Department of Labor approved my Office of Workers’ Compensation claim filed with the Department of Labor for July

14, 1992 job accident, effective August 21, 1992.

Without any governmental business reason or logical explanation, the Philadelphia district office director personally decided

not to cooperate with the Department of Labor in the processing of

my Office of Workers’ Compensation claim. At first, the Philadelphia district director insisted that the Department of Labor cancel

my Office of Workers’ Compensation claim. When the Department

of Labor refused to do so, the EEOC office director refused to complete the standard Department of Labor Form CA–2, and the

granting of my continuation of pay, despite repeated requests by

the Department of Labor to do so.

The Philadelphia office director boldly refused to cooperate with

the Department of Labor regarding my Office of Workers’ Compensation claim. On December 18, 1992, the Philadelphia EEOC office continued disregarding my CA–2 form, ignored my continuation of pay and denied my request for leave without pay, placing

me on AWOL.

Unexpectedly, on December 20, 1992, long after the rating period

had closed, the Philadelphia EEOC office sent me an unacceptable

performance rating for my yearly performance evaluation. This was

the first time since I commenced my employment with the EEOC

that I received a performance rating of less than highly effective.

The Philadelphia EEOC office unsuccessfully tried to convince the

Department of Labor Office of Workers’ Compensation Program

that this is the reason why my Office of Workers’ Compensation

claim should be canceled.

On August 13, 1993, the Philadelphia EEOC office terminated

me from my supervisory trial attorney position for failure to perform his duties and responsibilities due to his disability. Despite

the Department of Labor’s standard request, no light duty or accommodation of my disability was ever offered to me by the EEOC

prior to the Philadelphia EEOC district office terminating me due

to my Office of Workers’ Compensation disability.

In September 1993, I appealed all the EEOC continued administrative patterns of unexplainable adverse personnel actions against

me to the Merit Systems Protection Board. Said appeal was based

upon EEOC retaliation against me for filing a Department of Labor

Office of Workers’ Compensation claim.

In November 1993, prior to my Merit Systems Protection Board

hearing, when all appealed EEOC adverse personnel actions and

EEOC initiated settlement agreement with me to resolve all appealed matters. The EEOC convinced me to enter into an MSPB

settlement agreement in return for my withdrawal of my MSPB appeal. The EEOC agreed to withdraw the Philadelphia district office

1992 unacceptable performance evaluation from my official personnel file.

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Furthermore, the EEOC specifically agreed that neither the

Philadelphia office director nor two named administrative staff

members would be permitted to disclose to any future employers

any employment information related to my employment with the

Philadelphia district office.

The EEOC agreed to be held liable as an agency if either the

Philadelphia district director or his two administrative staff members breached any condition of the MSPB settlement agreement.

Also, as a further incentive for me to sign the MSPB agreement,

on the MSPB record, the EEOC agreed to pay me my continuation

of pay as repeatedly directed by the Office of Workers’ Compensation program and intentionally denied by the EEOC. The EEOC required the Philadelphia district director to sign the MSPB agreement as a gesture of EEOC sincerity.

I later discovered that after he signed the MSPB agreement, the

Philadelphia district officer director initiated an EEOC internal investigation against me for criminal misconduct. The EEOC dismissed all matters alleged by the district director as unsubstantiated.

Furthermore, as an effort to put pressure on the Department of

Labor Office of Workers’ Compensation program to cancel my

claim, the EEOC continued to refuse to process Office of Workers’ Compensation Program Form CA–2, which allowed me to get paid

by Office of Workers’ Compensation benefits on a periodic basis.

Despite my repeated complaints to the Office of Workers’ Compensation Program, months at a time went by without any Office

of Workers’ Compensation benefit payment.

From August 31, 1992 to September 22, 1994, when the Office

of Workers’ Compensation terminated my Office of Workers’ Compensation payment benefits, I received a total of two Office of

Workers’ Compensation lump sum payments for over a 2-year period.

The second problem I encountered was the Office of Workers’ Compensation apathetic second opinions and referee exam conclusions, as well as the Office of Workers’ Compensation extraordinary

time delay in making decisions. Medically, in addition to my July

14, 1992 low back injury, I also suffered from a sudden blood illness diagnosed in September 1992. The file contains a report dated

July 13, 1993, sent to Toby Rubenstein of the Office of Workers’

Compensation program by my doctor, Dr. Swensen, professor of

medicine, section of infectious diseases at Temple University School

of Medicine. Dr. Swensen related the etiology of my illness and concluded that the illness may well have been brought on or related

to Feldene and muscle relaxants I was prescribed for my back.

I was given a CT scan dated September 9, 1992, as a result of

the blood illness. The CT scan was prescribed by my infectious disease doctor to scan my abdominal and pelvic areas for liver damage. The results of the CT scan were normal.

The mentioning of my blood illness is relevant in my case for two

reasons. First, it became part of the DOL Office of Workers’ Compensation Program medical record. In this case, because the EEOC

tried to use my blood illness as a reason for the Department of

Labor to cancel my job related low back injury Office of Workers’

Compensation Program claim. Second, and more importantly, both

10

the Office of Workers’ Compensation Program’s referees used the

September 19, 1992 normal liver scan to support their medical report conclusions that there is no objective evidence of my low back

injury.

Concerning my July 14, 1992 low back injury, after July 21,

1992, I continued treatment under my treating orthopedic physician. My treating physician referred me to a board certified

physiatrist who conducted EMG and NCV studies on August 31,

1992, which showed abnormal findings. My treating physician also

referred me to a board certified neurologist on November 10, 1992,

who found neurological abnormalities consistent with my subjective

complaints. A CT scan of the cervical and lumbar spine was conducted on January 23, 1993, which revealed evidence of abnormalities in the lumbar region, including generalized bulging of the

disks at all levels from L–3 to S–1.

Compared to a pre-job injury February 9, 1991 MRI scan, no evidence of lumbar abnormalities existed before the July 14, 1992 Office of Workers’ Compensation claim. In March 1993, my treating

physician referred me to an anesthesiologist and pain management

specialist, who confirmed all previous findings and suggested a

course of treatment. In May 1993, my treating physician requested

authorization from the Office of Workers’ Compensation to conduct

CT scans to be followed by a second one. The Office of Workers’ Compensation rejected the recommendation of my treating physician and scheduled me for a second opinion.

From May 1993 until September 22, 1994, when my claim was

rejected by the Office of Workers’ Compensation Program, the Office of Workers’ Compensation Program refused to authorize any

further diagnostic testing. The Office of Workers’ Compensation

Program second opinion was rendered 9 months after my treating

physician concluded, after a cursory examination, that the abnormal lumbar findings were congenial and conservative treatment of

physical therapy should be favored over the discectomy. My treating physician disagreed with the Office of Workers’ Compensation

Program second opinion, and the Office of Workers’ Compensation

Program requested a referee exam regarding the issue of

discogram.

Since May 1993, my treating physician expressed his frustration

with the Office of Workers’ Compensation Program in that a course

of treatment he was recommending was being held up and he could

not even undertake further diagnostic testing. In June 1994, my

treating physician requested a new EMG, NCV and MRI studies be

done. The Office of Workers’ Compensation Program advised him

they would not pay for these tests.

In July 1994, the Office of Workers’ Compensation Program

scheduled me for a referee exam to resolve the conflict of the medical opinion in August 1994. The Office of Workers’ Compensation

Program referee exam was a 5-minute physical examination. He

issued a report concluding no need for surgery, my back injury was

not job related, there is no objective evidence of a back injury based

primarily on the September 9, 1992 liver CT scan. Finally, the report concluded I was not disabled and should return immediately

to my EEOC supervisory trial attorney job, a job the EEOC terminated me from over a year prior, due to the disability.

11

Based upon the referee report conclusion, the Office of Workers’ Compensation Program terminated all my Office of Workers’ Compensation Program benefits effective September 22, 1994. The Office of Workers’ Compensation Program claim representative affirmed the Office of Workers’ Compensation Program decision, but

modified the OWCP decision to allow medical treatment associated

with the July 14, 1992 injury.

I appealed the OWCP decision to the Federal Employees Compensation Appeal Board. The ECAB rendered an opinion years

later which basically confirmed the Office of Workers’ Compensation Program decision, but remanded the case on the issue of cause

of the injury and the question of disability.

In May 1999, the Office of Workers’ Compensation again referred

the case for a second referee exam. Although the referee admitted

he did not examine me in August 1994, again, the referee concluded I was not disabled in August 1994, he concluded the injury

was related to the July 14, 1992 accident based on the medical

records. However, again, the referee’s report cited the September 9,

1992 CT normal liver scan as a source for concluding no objective

findings of the back injury.

The Office of Workers’ Compensation Program adopted the referee’s conclusion and this time concluded any medical treatment

should also be terminated. The Office of Workers’ Compensation

Program claim representative confirmed the OWCP conclusion.

The case is again on appeal to the ECAB for review almost 6

years to date from the initial Office of Workers’ Compensation Program termination of my Office of Workers’ Compensation Program

benefits.

In conclusion, I believe the underlying decision to terminate my

Office of Workers’ Compensation claim by the Department of Labor

is because of the pressure put on the Department of Labor Office

of Workers’ Compensation to cancel the claim by the EEOC. It was

a lot easier for the Department of Labor Office of Workers’ Compensation Program to terminate the claim rather than deal with

the lack of cooperation and defiance by the EEOC.

The Department of Labor Office of Workers’ Compensation has

sat by while the EEOC has destroyed my character and ruined my

reputation for filing a legitimate Office of Workers’ Compensation

claim. Furthermore, my back injury continues to deteriorate, and

I have developed severe depression from the results of filing an Office of Workers’ Compensation claim 6 years ago, and the Office of

Workers’ Compensation Program’s inaction and delay.

I would again like to personally thank you, Mr. Chairman, and

distinguished members of the subcommittee, for allowing me to

participate in this hearing with the intent to improve Government

operations. Documentation to substantiate my statement is available upon request.

[The prepared statement of Mr. Sydnor follows:]

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Mr. HORN. Thank you very much for laying out that record.

Let me say to all the witnesses that your statements automatically go in the record, all of them. So what we’d like you to do is

to summarize your statements. We have a vote coming on the floor

at 11:30 a.m., and unless we need to take you all over into late in

the afternoon, you’re going to need to summarize your testimony

and not read it.

So we have every one of these papers working in the hearing report that we will send to the full committee and the floor of the

House of Representatives.

So let us now start with C.B. Weiser, the attorney at law from

Marshall, TX. Mr. Weiser, we welcome you here today.

STATEMENT OF C.B. WEISER, ATTORNEY, WEISER LAW

OFFICES, MARSHALL, TX

Mr. WEISER. Thank you, Mr. Chairman, distinguished members.

My name is Clete Weiser, I’m an attorney from Marshall, TX. I

have represented clients before the OWCP since 1992.

I’d like to highlight perhaps two to three areas where I think

there are problems. The first is the Employee Compensation Appeals Board [ECAB], the final appeal process. I’ve highlighted some

cases, but I will address one. And that is a Mr. Dan Gregg, a

former postmaster out of Iowa.

Mr. Gregg had his claims denied by the OWCP out of Chicago,

IL. He appealed it finally to the Employee Compensation Appeals

Board. They will take 24 months to render a decision. I can tell

you, Mr. Chairman and distinguished members, that when I started in 1992, it was 18 months. By 1994, it was 20 months to get

a decision. By 1996, 1997 and to the present, it’s 24 months. If

that’s a timely decision, I’d like to know.

But in Mr. Gregg’s case, they waited 23 months. On the 23rd

month or thereabout, they remanded the case back to the district

office in Chicago. And the reason given is the district office never

provided them the OWCP file. It was remanded back, we were

given no opportunity for input to the decision. I knew what the decision would be, it would be another denial, which it was.

It was then appealed back to ECAB and we got the standard response, you’ll have another 24 months. This gentleman, Mr. Gregg,

has been waiting, he will wait 2 years to get a decision, unconscionable in my view.

But more important, if the district office failed to give the file,

in my view, that should have been determined in the first 30, 60,

90 days when the appeal went in, not wait 24 months and then remand it back. His is not one case, there are more.

The other area I’d like to talk about briefly is the area of the

OWCP offices, especially Jacksonville, FL. I have here today Mr.

Bobby Kunkel, former station manager, supervisor with the Postal

Service. It took 18 months to get a decision in his favor.

What happened? We took the initial claim to OWCP in Jacksonville. It was supported by documentary evidence, it was supported

by witness statements, clearly, clearly a case that should have been

decided at the district office. What did the district office do? They

not only denied the claim, saying there’s no evidence to support it,

but in addition, they added two alleged work factors that Mr.

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Kunkel had never said occurred, work factors that you could never

get approved, such as a disciplinary action, unless you show abuse

or error. He never claimed that.

Yet they added those. Why? Because the agency gave it to them.

We took it on appeal to the Branch of Hearings and Review, and

to be fair, to the process, the Branch of Hearings and Review did

a fair hearing. They looked at the exact same evidence that we had

presented to the OWCP office in Jacksonville. No new evidence,

other than two witnesses who testified.

The Branch of Hearings and Review reversed. But it took Mr.

Kunkel 18 months to get that decision. He suffered economic loss

and he suffered additional depression, which is what he had. It is

clearly a case that should never, never have gone outside the Jacksonville office.

The third case I’d like to at least address comes out of the Dallas

office. It involves Mr. Bill Oates, a former employee of the Pine

Bluff Arsenal, Department of Army. Mr. Oates suffered an on-thejob injury, he fell from a ladder. He suffered shoulder, neck, and

head injuries. Yes, his claim was approved. However, within 6 or

7 years of that, it went to a referee examiner who saw him for 20

minutes. Did not examine him, according to Mr. Oates, found that

he was completely, had no residuals, he was completely over the

problem, it was denied. We took it all the way to the Branch of

Hearings and Review. They denied.

But what they said was, you’re making three or four claims with

regard to additional injuries, which would be consequential injuries. These are injuries that would flow from the original injury

that was accepted.

In November of last year, we filed a consequential claim injury.

We never got a decision. We went through Congressman Dickey of

Arkansas, who is the representative of Mr. Oates. He attempted to

get one. We just got in last week an alleged letter that was sent

to me by Mr. Martin Walker, the district director, unsigned, that

said, this is the decision. We never got it.

Now we’re going to have to take an appeal to ECAB, 24 months,

and who knows where we come.

My time is up, I will be happy to take any questions the chairman or distinguished committee members may ask. Thank you.

[The prepared statement of Mr. Weiser follows:]

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Mr. HORN. We will definitely have questions. So stay with us.

We now have Mr. Greg Fox, a representative from the American

Federation of Government Employees for OWCP claimants. Go

ahead, Mr. Fox.

STATEMENT OF GREGORY A. FOX, AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES OFFICE OF WORKERS’ COMPENSATION PROGRAM REPRESENTATIVE

Mr. FOX. Thank you, Mr. Chairman and distinguished members.

In the beginning, the Office of Workers’ Compensation was originally designed to be a non-adversarial entity. Unfortunately, over

the years, particularly since 1994, totally the opposite has occurred.

It is very adversarial, as you have already heard.

The claimants, from the time of injury, the agencies label them

as crooks, thieves, and too lazy to work. This is a very common

practice at the agency level. Nothing, sir, could be farther from the

truth. These are hard working, well tenured employees that simply

want to come to work and do their job.

Why? Initially, it’s because of over-zealous agency supervisors,

compensation specialists, and human resources personnel. If the

claimant has committed a crime, it is simply that they have hired

on with the Federal Government.

Claimants go through, and as I represent them, I see these

things, on a fairly regular basis, claimants go without pay, they

have unpaid medical bills, and as a result, they have agencies chasing them to get these bills paid. Fairly difficult to do when you’re

not even getting paid.

They are forced to file bankruptcy and experience foreclosures of

their homes. Utilities, water, gas, electricity, telephones are cutoff.

The divorce rate for claimants is skyrocketing as a result of this.

Chronic pain and depression has led to attempted suicides. And

sadly, some of those attempts have been successful.

Imagine for a moment what the claimant’s family is going

through, as well as the claimant. The Department repeatedly sends

claimants to physician after physician. This is a physician that the

Department chooses, not the claimant, and it is not the claimant’s

primary care provider.

The Department knows that this will contradict the claimant’s

primary care provider’s reports, better known as the wink-wink,

nod-nod effect. This action is for the most part a result of the agency compensation specialist hounding the claims examiners to find

a reason to deny any compensation. Generally if the claims examiner is resistant to the pressure of the agency, the compensation

specialist will simply call the Department director, who will ‘‘fix’’

the problem. This results in the claims examiner being overruled.

Agency compensation specialists brag about claims examiners

being repeatedly called and claiming that they are approving too

many claims. At this point, we simply forget about the merits of

the claim, it does not apply. Simply, they could care less about the

claimant and the negative effect that it has on the claimant and

their families. And believe me, there is a significant effect. I believe

you’re hearing testimony to that fact today from other people.

Imagine that you’ve been hurt. It doesn’t stop there. You can’t

pick up your children. You can’t mow your yard. You cannot parVerDate 11-MAY-2000 10:38 Dec 13, 2001 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 C:\DOCS\74832.TXT HGOVREF1 PsN: HGOVREF1
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ticipate in activities you were able to do prior to the injury. There

is no compensation for this.

As a clinician, I can tell you that it is nearly impossible for a

back injury, upper extremity injury or a soft tissue injury to heal

with this kind of unimaginable stress. We need to keep in mind

that this process was supposed to be, in effect, to protect the employees. That is not the case, sir.

I suspect, from the claims examiners’ perspective, certainly from

talking with them and observing them over the years, that for the

most part, they want to do a good job. However, the agencies do

literally hound them. As a result, they have got to give in somewhere. They get pressure from the agencies, they get pressure from

their own management.

In addition, the agencies do not respect the claims examiners.

This is very clear.

When you couple this with the fact that the agencies are regularly hounding the Department, something’s got to give. The only

result under these circumstances, sir, is the claimant is harmed.

I suspect strongly as well that if these claims were adjudicated

properly at the Department of Labor level that the hearings and

review and the Employees Compensation Appeals Board would certainly have less workload. This would shorten the 2 to 3 year period waiting for ECAB decisions.

There are a great many other issues to be addressed. However,

I can see that time is very short. So I will stop here, with the exception that all injured employees have the right to due process.

This doesn’t happen.

[The prepared statement of Mr. Fox follows:]

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Mr. HORN. Well, we appreciate that testimony, and we’ll continue

with all the three witnesses so far in a Q&A round, when we finish

all of the presentations.

Next is Michael Walsh, chairman of the Employee Compensation

Appeals Board, U.S. Department of Labor. Mr. Walsh.

STATEMENT OF MICHAEL J. WALSH, EMPLOYEES’ COMPENSATION APPEALS BOARD, U.S. DEPARTMENT OF LABOR

Mr. WALSH. Thank you very much, Mr. Chairman.

The agency I represent is 54 years old this year. I’ve been with

the agency for 15 years, both with Republican administrations and

Democratic administrations. Our role is to give independent review

of decisions of OWCP, to make sure that our best efforts ensure

competent and fair decisionmaking. We try to provide the same

level field a court would provide. We do that by having four specialists look at every case.

And the principles that we are bound by are the same principles

that all adjudicatory agencies are bound by, and that is, no ex

parte contacts with claimants or the OWCP. And I can say in my

years that the Secretary of Labor has never tried to intervene in

any case we’ve had, nor has any agency ever tried to influence our

cases, except by filing briefs or by oral argument.

A quick background I think is necessary. In 1908, the first comp

law came into effect. It didn’t cover all Federal workers, only those

in hazardous situations. In 1916, the first act came into being, covering all Federal employees. No review of decision.

In 1948, the Federal Security Agency was created by Congress

and developed two entities: the Bureau of Employees Compensation, and our board, the Employees’ Compensation Appeals Board.

For the first time, there was review of decisions, appellate review

of decisions of workers compensation.

In 1950, the Department of Labor was given the assignment of

handling workers compensation for the Federal Government, divided into two entities, OWCP and the Employees’ Compensation

Appeals Board. OWCP is an agency separate from us. They’re

under the Employment Standards Administration. ECAB is under

the Office of the Secretary.

OWCP does something different than we do. They administer a

program involving 3,225,000 employees, including the 875,000 postal employees. Their job is to administrate for all those people, and

their second job is to do initial adjudication. Our job is to do appellate review of adverse decisions received from the Office of Workers’ Compensation.

ECAB’s review is a de novo review. That is, we look at the case

afresh as if we have the merits of the claim. We do not receive new

evidence. Cases are decided on the record before us or on oral argument. If a majority of a panel assigned to the case finds that the

Office is correct, it’s affirmed. If not, it’s reversed or remanded.

Jurisdiction in our case depends on this: if an appeal is filed in

1 year of a merit review by the Office, we have de novo jurisdiction.

That is, we can look at both the law and the facts. If a decision

is outside a year of the Office of Merit Review, we look at what we

call abuse of discretion, and we’re looking at three criteria: has

there been an error on the part of the Office in the application or

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interpretation of law; has the claimant advanced a point of law or

a point not previously considered; is there new or relevant evidence.

In this case, we’re not looking at the merits, we’re simply looking

to see whether any one of those criteria were abused. If they have

been, we will send the case back for a merit review in the office.

We handle oral arguments, 120 are scheduled per year. We hear

about 70 in panels of three. About 50 are reset or rescheduled. At

those oral hearings, they’re held in Washington, DC, at those oral

hearings, the claimant is normally represented by an attorney, a

union representative, or pro se, by themselves. The Office is represented by the Solicitor’s office. Those arguments usually last

about an hour.

Now, we have an non-adversarial system, as has been stated

here. That is to be differentiated in the State system, where you

have something similar to what we have, you have an administrative process, you have appeals boards, all administrative. And then

the claimant can go into the courts, and he can go up to the lowest

court in the State, up to the intermediate appellate court or up to

the supreme court.

But the difference is this: the employers in State courts can fight

the claim all the way up to the supreme court of any State. The

other distinction is, many of the courts will just look at the law and

not the facts. That can take a long time to go through court system.

Under the non-adversarial system, which was designed by Congress, the agencies are not a party to the action. The agency cannot

appeal an OWCP decision, the agency cannot appeal to us. What

the agency can do is controvert the claim, and they do that by investigation. But they’re not a party to the action. That’s why the

courts, all of them, the appellate courts, the Supreme Court, have

called this a model preclusion statute. And they’ve said that because Congress has been so clear in what can be reviewed. They

say that our decisions cannot be reviewed except for a Constitutional violation.

I’ll have to stop now, but I would like to add one other thing. And

this is how we decide cases. A case is received from OWCP, it’s assigned to an attorney advisor. A preliminary draft is made, and

then the case is assigned to a panel of three board members. Each

one of those board members independently examine the claim.

After that has been done, there’s a conference on each case that

comes to us. If all members agree, the case goes out in that fashion. If there’s a requirement for dissent, there is one, or a concurrence, and the case is recirculated, just like any other appellate

agency. And thereafter, the case is sent out.

Now, approximately 25 percent of the cases that we see are sent

back to OWCP on remand basis or reversal.

I’ll stop there, I’ll be pleased to answer any questions. I would

like to point out one thing, though, Mr. Chairman, this. We start

fiscal year 2001 with 3,600 cases. And that’s down from a topload

of 5,570 cases which we reached in May 1997.

Last year was our highest production rate, 3,332 cases, all written. This year, our goal is 3,450 cases, but it will turn out to be

3,700 cases. That’s an 8 percent increase over our goal, and a 21

percent increase on the pending caseload. We have decreased the

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caseload 900 cases this year. We are currently at about 16 to 18

months, and cases I’m now assigning are about 12 to 14 months.

So I think we’ve had a dramatic downturn in our pending caseload.

I’ll be pleased to answer any questions that the panel has.

[The prepared statement of Mr. Walsh follows:]

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Mr. HORN. Thank you, Chairman Walsh. We will be getting back

to you on the Q&A.

Shelby Hallmark is the Acting Director of the Office of Workers’

Compensation Programs, U.S. Department of Labor. Mr. Hallmark.

STATEMENT OF SHELBY HALLMARK, ACTING DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, EMPLOYMENT STANDARDS ADMINISTRATION, U.S. DEPARTMENT OF

LABOR

Mr. HALLMARK. Thank you, Mr. Chairman and Ranking Member

Turner. It’s always a pleasure to appear to discuss the FECA program.

As you’ve heard today and in previous hearings, this is a very

serious program and one that OWCP takes extremely seriously in

our responsibility for assisting our fellow injured workers. And it’s

an honor for me to be here to represent the just over 900 men and

women who do this work and work extremely hard every day trying to do the best they can.

OWCP, as I’ve described before, and as in my written testimony,

has a very, I think, strong record of trying to improve its performance. We have an ambitious strategic plan which we are continuing

to pursue very diligently. And we have made substantial strides.

We have increased our ability to help people get back to work by

tenfold over the last 10 years. We’re now getting 7,500 people

helped back to work every year by OWCP.

We are in the process, as I said, of implementing a very strong

GPRA plan, and we’re meeting those goals. We’re now helping

agencies increase their timeliness in submitting claims to us, so

that we can get started on the process that you’ve heard about this

morning. And we are working with OSHA to lead the Federal

Worker 2000 initiative that was recently announced as a Government-wide safety and health goal.

Despite all of that, those accomplishments are made at the same

time that we’re addressing what is a very large, unrelenting and

ever more complex work load. And some of the experiences that

you’ve heard from the panel members today result from the fact

that this is a very difficult job for our claims examiners on a day

to day basis.

We’re trying to help our examiners. We have some major computer improvement initiatives which we believe over the next 2

years will in fact help us tremendously in that regard. We’re moving to an electronic imaging case processing system now. We’re

leading an agency effort to create an electronic data interchange

process, so that claims can come to us electronically in the first

place, and thereby speed them as well. And there are a whole raft

of other improvements that we have been working on, and that are

noted in my testimony.

We realize that all of those efforts are not complete, that the

transformation we want to achieve to make this a service oriented,

customer focused organization still has a way to go, and we are especially concerned that our ability to communicate with injured

workers and to show them and explain to them what in fact is

going on in their case is not what it should be. Nevertheless, our

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staff work every day with the tools that they have to try to accomplish the goals of the program, and I think they do a good job.

I’ve noted in my testimony some issues that we specifically have

addressed, following up on previous hearings, and I would point the

committee members to that. I won’t go into it now, but I will say

that communications is a particularly serious concern of ours. We

don’t believe we have the resources that we need to accomplish

what our customers rightfully should expect from us in the way of

access, and our 2001 budget request addresses that, and we hope

that may still be favorably received by Congress.

One of the major focuses today is on our adjudicatory process. We

believe that while the FECA process is unique, it is well tailored

to the system that Mr. Walsh just described, of a non-adversarial

process. OWCP does take seriously its responsibility to be a neutral

arbiter. We do not carry the water, if you will, of the agencies. Although we obviously have to work closely with them if we’re going

to accomplish this program. And we try to be fair to claimants and

to provide benefits to those who are entitled, and in some cases we

have to find that’s not the case. But we believe that we do a quality

job at the front end in making initial determinations. The vast majority of such cases are approved, as they always have been.

We have improved our timeliness in that regard so that people

do not have to wait excessively, particularly in occupational disease

cases, which are complicated. In the last 4 years, we’ve reduced the

average time there from 97 days to receive a decision to 75 days.

There always are going to be outliers, where there are complex

issues. But they are few and we monitor those. As I said, we approve roughly 90 percent of all incoming cases. And then there is,

as Mr. Walsh started to explain, a complex and extensive appeals

process which includes reconsideration at the district office, which

includes all hearings at our Branch of Hearings and Review, which

you heard something about this morning, and which includes the

final review at ECAB, in addition to constitutional challenges in

district court.

We think those processes work, we think the results that come

out of them indicate that they are objective. And they parallel the

kinds of outcomes that occur in State workers’ compensation systems.

I’d like to just highlight if I can a couple of things that we’ve

done to make improvements in that process. Branch of Hearings

and Review, during the past 3 years, reduced the time it takes for

us to remand cases where we find upon their receipt that a hearing

is not in order, that it should have been resolved before. In 1998,

that took 169 days. This year, it’s going to take an average of 88

days. We’re very proud of that.

We also found that issuing final decisions after oral hearings has

needed to be improved because of the backlog, similar to the concerns that Mr. Walsh mentioned. We’ve reduced that timeframe

from 361 days to 242 days on average this year. And we’re still

working to make improvements on that. And we are working with

ECAB to address issues of coordination. We have shared some of

our technology with ECAB to ensure that we hand cases off properly. Sometimes that doesn’t work, and then there are problems

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that we have, I think, addressed and improved substantially in

that regard.

Finally, we’re trying to ensure that our decisions are quality at

the front end and that we do things right in the first place. We

have an extensive and I think successful accountability review

process that looks at how well we make those front end decisions.

We have a quality index which is one of our GPRA goals, which

is intended to measure how well we can move forward in improving

those initial determinations and ensuring that the decision is right

in the first place.

That goal has been one of our hardest to achieve. But we are

showing success in 2000.

We’re a dynamic organization. We are always glad to hear what

people say about this issue, and we want to work with the committee and with everyone else to try to improve it. Thank you.

[The prepared statement of Mr. Hallmark follows:]

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Mr. HORN. Thank you.

And now the last presenter is Patricia Dalton, Acting Inspector

General, Office of the Inspector General, U.S. Department of Labor.

STATEMENT OF PATRICIA DALTON, ACTING INSPECTOR GENERAL, OFFICE OF THE INSPECTOR GENERAL, U.S. DEPARTMENT OF LABOR

Ms. DALTON. Thank you, Mr. Chairman and Representative

Turner, for inviting the Office of Inspector General to testify on our

work in the Federal Employees’ Compensation Program.

I’m here today in my capacity as Acting Inspector General to

present the views of the Office of Inspector General, which may not

necessarily represent those of the Department of Labor.

Over the last few decades, the OIG has made it a priority to effect positive changes and reduce vulnerabilities in the FECA program. The OIG’s audits, evaluations and investigations have disclosed weaknesses that can lead to inefficiencies, ineffectiveness, or

loss of Federal funds.

Some of our efforts related to customer service, program integrity, and due process issues, which I detail in my full statement,

include: a cross-match between FECA and Social Security wage information that revealed potential claim and fraud and overpayments; a review of 13 Inspector Generals which we coordinated

that found employing Federal agencies generally needed to improve

the management of their workers’ compensation program; a review

of OWCP’s customer service survey, which has led to changes in

the way OWCP handles the survey process; an analysis of timeliness of claimant reimbursement of out of pocket medical expenses

and the authorization of surgical requests; an audit of OWCP’s financial statements, which noted that FECA does not have policies

and procedures in place to ensure the documents are requested and

received on a timely basis; and an audit analyzing improper medical provider billings, which revealed that millions of dollars are

being lost annually because of improper or abusive medical provider billing.

I should note that OWCP has generally been very responsive to

any recommendations that my office made.

The subcommittee has also asked that we provide our views regarding Federal Employee Compensation Act appeals process, and

ECAB specifically. Mr. Chairman, we believe that central to the

success of any compensation program is the need to ensure that the

appropriate amount of benefits be given to the appropriate people

for the appropriate timeframe. Complementary to this is the need

to ensure an effective, timely mechanism to protect the due-process

rights of individuals while protecting the integrity of the program

at the same time.

While our work has predominantly focused on customer service

and program integrity issues, we did briefly look at this issue in

1995. The OIG issued a report which examined a sample of 50

claims that had been appealed to ECAB. In that report, the OIG

recommended that ECAB and OWCP reevaluate the current FECA

claims and appeal adjudication processes to develop an action plan,

including legislative proposals, where necessary, to better capture

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performance of cost information and reduce the costs and adjudication times for these claims.

ECAB recently indicated that it had reduced its backlog and the

average time it takes to adjudicate a case had been reduced from

24 to 16 months. However, we have not audited that information

at this time.

Mr. Chairman, even though OWCP is implementing measures to

increase the efficiency and effectiveness of the program, there are

still issues that need to be addressed. While some of these are administrative in nature and can be resolved by OWCP, there are

other solutions that are legislative and budgetary in nature. Among

the legislative recommendations that we have made over the years

include changes in the continuation of pay period, establishing a

retirement age for beneficiaries, adding a wage reporting requirement for totally disabled recipients, and verifying employment information by the use of other data bases, such as Social Security

information.

In conclusion, Mr. Chairman, our work in FECA and ECAB has

served, I believe, to help the programs to be more effective and to

work more efficiently. As demonstrated by our findings and recommendations, our efforts have focused on helping to improve services provided to FECA claimants and in ensuring the integrity of

the program.

This concludes my oral statement. I would be happy to answer

any questions.

[The prepared statement of Ms. Dalton follows:]

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Mr. HORN. Well, thank you very much.

Let me just ask a general question first. We’ve got the administration and representatives, even the Inspector General, looking at

the whole department. We’ve got the people that are saying, hey,

there’s a problem here, what are you going to do about it. I mean,

do you gentlemen recognize, for example, Mr. Walsh, Mr. Hallmark, that there is a problem?

We have 300 cases that have come to my office. And before I

send them to my subcommittee staff, I’ve looked at every single one

of them. Ms. Bailey, the professional staff member working on this

problem, then gets it. And believe me, she’s read at least 300 cases

also.

So, do we admit in the executive branch that there are problems

here? And if so, is it an attitude problem? Now, some usually say,

‘‘oh, it’s a resource problem, we don’t have enough people.’’ You’ve

got a lot of people. The question is, what’s their attitude? How do

they function? What sort of hierarchy do you have here within your

program? What do you think, Mr. Walsh?

Mr. WALSH. Well, I think timeliness, Mr. Chairman, is a real

consideration. And as I pointed out, you asked us a question in

1998, you wanted to know about what was going on, why we had

the backlog in the first place. May I read you my answer?

Mr. HORN. Yes, it was in your testimony, but go right ahead.

Mr. WALSH. I said from 1985 to the end of 1991, the pending case

load grew approximately 60 cases per year, which was certainly

manageable. In 1991, we had a pending caseload of about 1,000

cases.

In contrast, between 1992 and 1996, the pending caseload increased an average of 791 cases per year, more than we could handle. And ECAB work force remained steady.

Now, what’s happened is, we’ve got more resources, we’ve got

about 51 people now. But we had about 34 then. So from our viewpoint, the most serious question is getting out timely decisions. As

far as the decisions themselves, I feel very good about the decisions. Our attorneys are very industrious, they have high output

and they’re working very hard. And their whole goal, and our goal,

is to reduce this time period to what I think is a manageable time

period, about 10 months.

Mr. HORN. It looks like you’ve made a change and that you’ve

processed more cases. But when you hear in the rest of this organization, they lose files, don’t answer calls, etc? Does that worry you,

as an administrative law judge?

Mr. WALSH. Well, yes, certainly, that would worry me. But I’m

of course concerned and responsible for my own agency. And I said

not too long ago, down in Florida, that in our view, the claimant

is our customer, is our constituent. And it’s our duty to see that

they get a fair hearing. And that’s what we’re pursuing. And our

attorneys are pursuing that to the best of their ability.

Yes, we are, as a board. So I would simply say to you that what’s

most important is that we give a fair decision in the rationale for

the decision.

Mr. HORN. I understand you’re saying it’s below your level, in a

nutshell. You feel you’ve done your best with your appellate actions.

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Mr. WALSH. I can’t comment on another agency. But I think

we’re doing, I’m satisfied we’re doing very good work.

Mr. HORN. OK, I’ll take that for the record. Mr. Hallmark, what

are you doing to straighten it out? Do you admit there’s a problem?

Mr. HALLMARK. I believe my testimony suggests that we understand there are issues that we need to improve. There’s no question

that there are cases where problems arise. Any system that has

170,000 cases per year is going to have some cases where there are

surely going to be disputes and where there are errors made. We

have, as I said, a number of strategic goals to address improvements in a wide range of activities.

One of them has to do with the whole issue of how we communicate and whether or not we are accessible and whether people

can get a phone call back. That is an area that we do believe is

a resource intensive area, because we get 2 million phone calls a

year. Our staff tell us they are pressed to do the basic adjudication

and claims processing work, and adding to that, answering more

and more telephone calls, is a difficulty for them. We have a proposal on the table right now.

Mr. HORN. Excuse us for a minute. We obviously have two votes

on the floor. We were told it would be at 11:30, and they’ve pushed

it up a little. So I’m going to finish my 10 minutes and when we

come back, Mr. Turner will have 10 minutes. And so it will go until

we find out where we’re headed here.

I would ask the Inspector General, when you’ve got a troubled

operation like this one what’s been the investigation procedure, and

what have you done about this one?

Ms. DALTON. Mr. Chairman, we are continually in the Office of

Workers’ Compensation, as with all the other Department’s programs, looking at them from an oversight capacity as well as from

an investigative capacity for specific problem areas.

Mr. HORN. Well, do you think there’s a problem with the program? First, I’ve got to find out if anybody thinks there’s a problem, or are we the only ones in town that think that way?

Ms. DALTON. Certainly our reports have indicated that there are

problems there. The last time I testifited before this subcommittee,

we mentioned our review of OWCP’s customer satisfaction survey,

which I believe was a valid attempt to find out how OWCP was

being received, and how it was satisfying its customers.

We indicated that a number of improvements needed to be made

in the survey, as well as recommended using other tools, such as

focus groups, to gain information on how OWCP was serving its

customers. Certainly there are indications that other improvements

are needed. I know certainly from my own experience in dealing

with people that have called in complaining to us that there are

some very legitimate concerns.

One thing that I think hasn’t been mentioned here, but I believe

is in Mr. Hallmark’s testimony, is a need to communicate more

clearly with claimants. I think there’s a lot of confusion, because

we speak in Government jargon as opposed to plain English. I

think that relates to some of OWCPs problems, I also think the Department needs to do a better job of explaining where we are in

a process, what’s going on, what people can expect, and what do

they need to do.

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Mr. HORN. Well, I think that’s well put. And I might say, Mr.

Hallmark, what bothers me is way down at the bottom entry. Now,

part of that problem is the employing agency. The Post Office, for

example, had a number of cases where they refused to even give

claimants a form. And apparently, middle management types in

the Post Office, think they can keep their salary if they show that

nobody’s injured down there.

Well, that’s nonsense. They ought to give injured employees the

form, and if they don’t, you should be punishing them for not complying with the law.

Now, how do you solve that?

Mr. HALLMARK. Well, it’s clearly the case, and Ms. Dalton’s comments regarding our plans and efforts to improve communication

go to this point. Oftentimes, injured workers don’t know exactly

who it is, where the problem is, and sometimes the problem is

some kind of a block at the agency level, or some kind of failure

to communicate between the agencies and OWCP.

That’s one of the reasons why we have worked much more diligently in the last several years to try to improve our coordination

with the agencies, and to ensure that where problems like the ones

you’ve suggested, and they do occasionally happen, although it’s

against the law, that we have ways of identifying that it’s happened, and then going to higher level management to ensure that

it stops.

The agencies are, including the Postal Service, are increasing the

level of their coordination with us and their support of our programs. But frankly, it is the case that they have troubles as well

as we do.

I think, however, I would take issue with the notion that we are

a program in crisis. I think we are a program that always is going

to have some difficult disputed cases, and that we’re a program

that has not been able to communicate as well as we should with

our customers.

But I think we are fundamentally moving in the right direction,

and I really believe that as the next few years unfold, the projects

and the initiatives that we have in place will start to address a lot

of the problem. You mentioned lost cases. Our imaging process is

specifically addressed at having an electronic control, so that we

don’t have, as we do now, hundreds of thousands of paper files that

in fact do on occasion get lost in the shuffle, as they move around

in offices. We are addressing those kinds of issues.

Mr. HORN. Do you have that kind of system in place now?

Mr. HALLMARK. It’s in place in five of our district offices and will

be completed this year.

Mr. HORN. Have you seen a difference in——

Mr. HALLMARK. Absolutely.

Mr. HORN [continuing]. The five offices versus the others?

Mr. HALLMARK. Well, it started just this past winter, in its early

days. But we see already that problems like a doctor calling in to

say, I need your authorization for a medical treatment, whereas before that call had to be put on hold while somebody went and found

a paper file, now the person on the telephone bank can simply pull

up that case on their screen and say, yes, I see the report you submitted, but you need to give me this additional piece of information

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regarding its relationship to this injury. They can then fax that

piece of information to us and get a decision on the spot. We’ve

seen that kind of improvement already.

Mr. HORN. Mr. Weiser, have any of your customers or clients

been with one of these five offices where imagery is used to get

their files? Or are you just running into the ones that don’t have

this technology?

Mr. WEISER. I don’t know what the five offices are, Mr. Chairman.

Mr. HORN. Well, I take it Jacksonville isn’t one of them.

Mr. WEISER. Well, if it’s in Jacksonville, FL——

Mr. HALLMARK. Jacksonville was our first office. I have to tell

you that this is being implemented with regard to new claims. So

the claim that was filed in 1999, for example, in Jacksonville,

would not currently be imaged. That’s our plan, to move to that

later. Right now, all new claims are being turned into this image

system.

So if a claim was filed in February or March 2000 in Jacksonville, it’s now being handled in that fashion. Also Dallas, San Francisco, New York and Cleveland.

Mr. HORN. Any comments by you, Mr. Sydnor? Have you seen

any change?

Mr. SYDNOR. No, sir, I haven’t.

Mr. HORN. Because you’ve had a rather long experience there.

Mr. SYDNOR. Any change right now would be too little, too late,

as far as I’m concerned.

Mr. HORN. Mr. Fox, have you seen change?

Mr. FOX. No, sir, I haven’t.

Mr. HORN. And your representatives in the field back you up on

that?

Mr. FOX. I believe so.

Mr. HORN. Well, unfortunately, we have to go and vote. So we’re

in recess then, and Mr. Turner, when he comes back, he will have

10 or 15 minutes to ask questions, because that’s what I took. So

we’re in recess.

[Recess.]

Mr. HORN. Recess is over, I now recognize the gentleman from

Texas for questioning.

Mr. TURNER. Thank you, Mr. Chairman.

Mr. Hallmark, you heard Mr. Weiser talk about a gentleman

named Mr. Gregg, his case where they took 23 months before there

was any action on the case. Was that at the initial claim level, Mr.

Weiser?

Mr. WEISER. No, Congressman.

Mr. TURNER. That’s on appeal?

Mr. WEISER. It was at ECAB.

Mr. TURNER. All right, so I need to ask Mr. Walsh. That was 23

months before it was discovered that the file wasn’t complete,

which Mr. Weiser pointed out should have been discovered within

at least 30, 60 or 90 days and been corrected. Instead, it caused

the case to go all the way back, get the trial materials, and then

I guess you had to wait another 20 or so months.

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Mr. WALSH. I’m not sure, Congressman, if he’s talking about a

case that was remanded, is that what you’re talking about, Mr.

Weiser?

Mr. WEISER. Yes, it was remanded this year.

Mr. TURNER. But the reason for its remand was the fact that the

file wasn’t complete, which seems to me to be a ministerial matter,

it should have been determined within at least 30 to 60 days and

corrected.

Mr. WALSH. Yes, if I may—— Mr. TURNER. I guess what I’m getting at here, what kind of a

system do we have? It sounds like every time you appeal, the file

gets a number and it sits over there until somebody 20 months

later decides to look at it and make a decision, have oral argument

or whatever.

What kind of initial screening do you have in place to see if the

basics are there to prevent that kind of problem from occurring?

Mr. WALSH. What happened, it sounds like, in that case, I can’t

speak specifically to it, except it was remanded to OWCP, we initially request when a notice of appeal is filed, we request the case

from OWCP. And they have an amount of time to get that to us.

If in fact they can’t get it to us, then the only thing that we have

available to us is what we call kind of an order to show cause, we

say, get the case to us in 30 days, or we’ll have to remand it for

reconstruction.

Now, we don’t have to do that in too many cases, because OWCP

does the very best they can to get the cases to us. But because of

our backlog, we hate to send the case back, remand it back, even

though we don’t have it. Because once it goes back, OWCP has to

issue another decision. And then it has to be appealed back up to

us.

And so we work with the OWCP to try and get that file. Now,

it could have been lost, a lot of things could have happened. But

of course, we can’t decide the appeal without the file.

So I don’t know exactly what happened in that particular case.

But if there was an order remand, it was an order back to the office

to get the file together, reconstruct it. And your question is, well,

why did it take 23 months? I can’t answer that right off. It doesn’t

happen very often.

But we do give OWCP as much time to get the case to us, because we are reluctant to send it back, Congressman, because it’s

going to have to start back up again. So we make every effort we

can to cooperate with them to get that case.

Now, if it’s lost, there’s nothing we can do about that.

Mr. TURNER. Mr. Weiser, what do you think about that response?

Mr. WEISER. Frankly, Congressman, I don’t find it acceptable. It

was not a matter of reconstructing the file. The remand order was,

we don’t have the file. Get a new decision and then we had to appeal it back.

And it’s not the first case. I had a case called Linda Joray, out

of Oklahoma City, within a month of that. The same thing was

being done. I filed a motion at that point objecting to the remand.

And suddenly, they got the file and a decision was rendered.

Now, I find it hard to believe that you cannot determine within

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mine that you either have or do not have a file from the OWCP

district office. In at least the cases I’ve had, action is not being

done, and these are cases done this year, this is the year 2000, that

action is not being taken as far as remands, or the case, the John

Bright case I mentioned, on the executrix issue, not being done

until the 23rd month. And that’s unconscionable, in my view, for

an administrative office to do that.

Mr. TURNER. How many claimants have benefit of legal counsel

in filing these claims and pursing these appeals?

Mr. WEISER. I cannot tell you, Congressman. I don’t think there

are a lot. Because I know a number of attorneys that I’ve dealt

with that do not want to take the claims. The adjudication process

is too long. And as far as the attorney fees, unlike Social Security

or VA, the client has to pay them from whatever they get. And it

has to be approved by OWCP, you have to send your fees in for approval. You may not get fees in advance. You can get expenses in

advance, but not fees. That’s under the law.

And I don’t have a problem with that. But I don’t think there are

a lot of attorneys representing. Because it is just not an area that

they see quick results from or really a fair process.

Mr. TURNER. What percentage of your practice is involved in

these Federal worker comp claims?

Mr. WEISER. I would say about 30 to 40 percent, maybe, Your

Honor, I do basically Federal employment law, or Congressman, I

do Merit Systems Protection Board, OPM disability, Social Security

and OWCP. So it’s about 30 to 40 percent.

Mr. TURNER. Mr. Hallmark, what percentage of cases have an attorney representing the claimant?

Mr. HALLMARK. I was just looking through my statement. I believe there’s a reference in here somewhere.

My rough understanding is that roughly a third of the cases are

represented at our hearings level and nearly a half at the ECAB

level. Since the process is more streamlined, typically at the district office level, the claimants are represented generally either by

a union representative or not represented at all at the first initial

audience.

Mr. TURNER. Mr. Weiser, I think Mr. Walsh or Mr. Hallmark described this Federal system as a non-adversarial system. Do you

agree with that characterization?

Mr. WEISER. I do not, Congressman. I think that too often it’s the

claims examiner working with the agency to deny the claim. I really believe that they are looking for ways to deny claims. And Mr.

Kunkel’s case is a prime example. They added two work factors

that would never pass muster, because you’d have to show abuse

or error. That would be a disciplinary action. That’s one, I can’t recall the other.

But Mr. Kunkel never alleged that as creating his emotional condition. The agency brought it up. The other was the death of his

sister. That was brought forth by the agency. But in the statement

of accepted facts by the district office, those two appear as work

factors. Unclaimed by Mr. Kunkel.

Now, if a district office is to be fair to the claimant, if they are

not adversarial, why are they adding as work factors that which

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the claimant does not claim, but the agency claims? And work factors that you cannot prevail on? That is my question.

And it’s not just Mr. Kunkel’s case. There are others like that.

I think it’s adversarial. I think, too, the forms, I’ve given up trying to get the forms from OWCP or even from an agency. I go on

the Web site and pull them down and send them to my clients. I’m

waiting for the day when they say, those aren’t our official forms,

that you’ve got to do it on a certain form. That hasn’t happened

yet.

But I had a case in Oklahoma, Mr. Bieger. He was on OPM disability retirement. He had his claim approved. We asked the

OWCP to send us a CA–7. He was a former postal employee. They

said, go to his employer. I said, the postal service isn’t his employer, he’s on disability retirement, he’s making an election to

take OWCP. Why can’t you send the form?

Never got a response back. So I sent Mr. Bieger the form off the

Internet.

But this is the kind of responses I have seen. And I’ll grant you,

I’m not one that handles every case in the country. But in the cases

I have handled, there have been problems.

Yes, we have prevailed in cases. But in many cases, we were

fighting all the way through. And we’re fighting our own OWCP,

we’re fighting an agency because they work, in my view, hand in

hand. They simply do.

Mr. TURNER. Mr. Hallmark, what do you have in place to prevent

undue influence by the agencies over the decisions made by the

people in your office?

Mr. HALLMARK. We have a substantial training program for new

claims examiners. And we have a procedural manual that lays out

in fairly explicit detail how decisions are to be made. I think it’s

very well understood by our claims examiners around the country

that we are an independent body, that we have a responsibility to

be objective, that we obtain communications from the agencies, because they in fact are the ones who know what the circumstances

are, they have information about pay rates and so on which would

be appropriate for filing of wage laws claims.

But we are not guided by agency activity, and we do as best we

can to shield our claims examiners from being hounded, if you will,

as has been suggested here. I don’t believe that our claims examiners in the district offices feel that they must reach a particular result. And I’m not aware of agencies attempting to pressure, or they

certainly don’t attempt to pressure me to come up with a result of

one kind or another on a case. Although clearly, the agencies have

an interest, they have a fiduciary responsibility, and they work to

try to constrain cost.

But that does not yield, in my view, inappropriate discussions of

that kind. Where we are aware that they happen, we address that

as inappropriate.

Mr. TURNER. I see my time’s expired.

Mr. HORN. Go ahead.

Mr. TURNER. One followup question. Do you have a situation

where these claims are actually handled by a representative in

your office in a way that they end up handling the same agency

claims? Do they end up specializing, I don’t mean specializing, do

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they end up handling a disproportionate share of claims from one

agency because of perhaps the location of the district office?

In other words, would we have a situation where someone in

your office would end up having their caseload being 60 percent

from one agency, simply because of the location of that district office and its relationship geographically to some Federal agency?

Mr. HALLMARK. I understand your question. We have several different methods of assigning work to claims examiners. The predominant method is that cases are assigned on a random basis,

based on the last three digits of the case number. So it is not,

that’s a process which spreads the cases across the office. In some

cases, we do have specialization, with respect to certain types of

cases or certain stages. But even within those specializations, in

other words, initial adjudication, post-adjudication, return to work

efforts, the assignment is on a random basis.

And I think in fact there is no tendency to create that kind of

an overly tight relationship with a given installation.

Mr. TURNER. Did I heard you say earlier that 90 percent of

claims are approved and 10 percent denied?

Mr. HALLMARK. More than 90 percent of what we call traumatic

cases, which are injuries that occur on one work shift, are approved, something like 93 percent. That’s an outcome that has been

fairly consistent over a number of years.

Occupational disease cases, which are more complex, and some

of the cases that Mr. Weiser has been discussing today, where

there are a whole series of different factors which have to be considered as to whether the condition is caused by the work or by

other activities, are less likely to be approved. I think the number

in that case is in the high 60, low 70 percent, and the average between those is around 89 or 90 percent.

Mr. TURNER. Mr. Walsh, from your perspective, you said that

when the case reaches your appellate level that there is no ex parte

communication with the agency at that level.

Mr. WALSH. Yes, we have nothing to do with the agency. We’ve

never been approached by, not in my time, the agency to affect a

case in one way or the other. As I say, it’s non-adversarial. The

agency is not a party. They cannot produce briefs, they cannot

present oral argument. They’re out of it.

Mr. TURNER. But the Solicitor General?

Mr. WALSH. The Solicitor represents the Office of Workers’ Compensation before us, in oral arguments, for example. They are in

effect a party to the case.

But the agencies are not. They are of course self-insured, because

of the chargeback, and they have a vital interest in it, because they

pay the money. But they do not appear before us, nor do they have

any influence upon us.

Mr. TURNER. Well, am I incorrect in stating that the Solicitor

General is in effect standing in for the decision that was made at

the lower level?

Mr. WALSH. Yes.

Mr. TURNER. He is advocating denial of the claim?

Mr. WALSH. Yes, I think that’s right, he does represent the Office

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tem, in that the employer in the adversarial system can fight the

claim all the way through administrative process and into the

courts. Whereas in the FECA system, the non-adversarial system,

they cannot. The employer cannot fight the claim.

What they do initially is they can investigate it, and furnish facts

to OWCP upon which then OWCP will make a judgment. But they

are not a party to the claim. That’s the difference between the two

systems.

Mr. TURNER. Mr. Weiser, that to me sounds like a distinction

without a difference. The Solicitor General is there to be sure that

the decision to deny the claim is upheld. Does that sound like an

adversarial system to you?

Mr. WEISER. Yes, that would be my view. My major concern with

ECAB has been the length of time it takes. And then the procedural way that it’s handled, which I think is highly improper. You

shouldn’t have to wait 23 months to find out that, gee, you don’t

have the case file. And then the case is remanded, and when it

goes back up, now you have another 24 months.

I heard them say that there had been 10 months and 16 months.

I haven’t seen it. And I’m talking this year, 2000. I have not seen

it, with the cases that are pending at ECAB that I have. We are

getting the decisions back in a 23 to 24 month period.

Mr. WALSH. Congressman Turner, if I can just add, if Mr.

Weiser’s through, add to my remarks about the Solicitor. In the

majority of the cases, probably 95 to 96 percent of the cases that

come before us, they simply say, we’re not making any comment,

we’re not filing any brief. Where we see the briefs and what you

might call adversary position is in the oral arguments, where they

file a brief, state the case, defending the decision of the OWCP. But

I wanted to make it clear that in most cases the Office does not

say anything or file anything, they just say, we’re not going to file

a brief in the case.

Mr. TURNER. Well, it sounds to me like our major problem is

time here. I know you have a request in through the President’s

budget for additional funds for additional staff. I know I agree with

the chairman, a lot of times I think we are told the problem is

money, and yet maybe there are other problems that could be

solved. It sounded like some greater initial review of these files as

they come in would be helpful.

Mr. Hallmark, when your people look at these claims, is there

any difference between the processing time, the time from initial

filing of the claim to a decision for those that end up being granted,

that 89 or 90 percent, versus what may appear to be the tougher

cases that you end up denying? Is there some way in the early

stage to make a distinction where you get on a different path, if

you have a relatively clean claim?

Mr. HALLMARK. Well, clearly, the purpose of workers’ compensation is to try to reach prompt decisions on those cases which are

straightforward. So the vast majority of your straightforward slip

and fall events that occur, which is the bulk of the 170,000 claims,

are dealt with very, very rapidly. And medical benefits ensue, and

that’s usually the end of the story.

Where a case has to be developed, or in other words, there are

questions, either the agency has raised a question about the workVerDate 11-MAY-2000 10:38 Dec 13, 2001 Jkt 000000 PO 00000 Frm 00085 Fmt 6633 Sfmt 6633 C:\DOCS\74832.TXT HGOVREF1 PsN: HGOVREF1
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relatedness of the condition, or there is a medical issue about

whether there is in fact a disability as such, those events take

longer. And yes, occupational disease cases, which are more complex, we set a different standard than we do for traumatic injuries,

which we typically, 97 percent of the time, we complete within 45

days.

Occupational cases, we complete simple ones, which are a category we recently created, we do within 90 days. More extended

ones, such as stress cases, we try and accomplish within 180 days.

So there are different gradations. And there always are cases

where the complexity of the development, the evidence is such that

it takes longer than what our standard is. That’s why our goals are

not expressed as 100 percent. We will have a goal of in some cases

90 percent or 80 percent within a certain timeframe. Because we

know that there are always some cases that deserve and should

have more careful review than a particular timeframe.

Mr. TURNER. Do you have statistics that you could share with the

committee that would show us that, specifically for example, if it’s

50 percent of your claims are disposed of within 90 days, and 10

percent take 2 years, that would be interesting information for us

to see. Do you have it broken down in that fashion?

Mr. HALLMARK. We have lots of different data. I don’t know if it’s

in exactly that fashion. But we certainly can tell you at any given

moment how many cases were adjudicated within our timeframes,

the goals that we set, which is 45 days for traumatic, 90 days for

simple occupational disease, 184 extended occupational disease.

And we also can tell you at any given time how many have gone

beyond, say, 1 year. And I think as of June 30th, that number was

50, or thereabouts. We keep track of those cases that are outliers,

because we know by experience, as you look at this kind of process,

it’s easy for a case to fall off the screen, if you will, and become— take too long. So we have reports that tell us, this many cases are

over 1 year in district office X, Mr. district director, will you ensure

that a letter goes out to that claimant every month explaining

where the status of that case is.

That’s part of our process, and part of what we do to ensure that

even though a case may take longer for reasons that are legitimate,

that it doesn’t cease to be a concern for managers and claims examiners.

Mr. TURNER. How many district offices do you have around the

country?

Mr. HALLMARK. We have 12 offices.

Mr. TURNER. And do you develop statistics that show that the

workload is fairly evenly distributed between those 12 offices, or do

we have some offices that have greater workload than others?

Mr. HALLMARK. The offices range rather greatly in size. But we

have the process whereby we allocate staff as based on incoming

caseload. So it is proportionate insofar as we possibly can make it

to the workload that exists in each office.

Mr. TURNER. Have you monitored the length of time that it takes

to process and dispose of claims by district office to see if

they’re—— Mr. HALLMARK. Absolutely. We do that on a quarterly basis to

ensure that problems don’t arise. We look at it, and where there

83

are problems, where an office starts to have difficulty, we have remedial discussions about how to fix it. And that’s something that’s

been done in this program for 20 years, and necessarily so, because

this kind of workload cannot be allowed to be left for a general

process, routine process. You must stay on top of it.

Mr. TURNER. And I assume you do the same for the individuals

who review the claims, to be sure that their performance is at least

up to some acceptable standard?

Mr. HALLMARK. At our appellate level, the hearings and review

level, the data that I mentioned in my statement this morning are

a part of the way we measure those kinds of things. We also look

at standards that each hearing representative has for issuing their

decisions.

And by the way, the timeliness statistics I talked about at the

district office level are also measured at the individual claims examiner levels, so that we can identify problems and fix them right

down at the immediate source.

Mr. TURNER. Well, in conclusion, Mr. Chairman, I think I can see

some evidence of progress here. But it seems like we do have a long

way to go in terms of timely processing. And I think we need to

all recommit ourselves to trying to be sure we solve these problems.

It’s not the way we should treat our Federal employees when they

have an injury on the job. And anything we can do to improve that,

I think both the chairman and I would be very supportive.

Thank you, Mr. Chairman.

Mr. HORN. Well, thank you.

Let me followup on a few things. When you have a case, Mr.

Hallmark, that has been turned down by Mr. Walsh’s operation

and remanded back to OWCP for more information, do you go

through that or have your staff go through it and straighten out

where the errors were made by the various offices? Mr. Walsh, how

many cases do you reject, because of something that’s been done

within the administrative process?

Mr. WALSH. Mr. Chairman, it varies from month to month. But

it averages about 25 percent of the cases are remanded for various

reasons. Either there’s been an error or law or further development

needs to be taken. And the office usually follows those, what we

have in our decision.

Mr. HORN. Well, Mr. Hallmark, does this give you a chance to

straighten out a casefile, or other administrative problems?

Mr. HALLMARK. Mr. Chairman, we do two things with respect to

the cases decided at ECAB. They set precedent for us, and so we

review the decisions that the board makes to ensure that we are

in synch with the view of the law that they establish. And obviously law is, as I’m sure you’re aware, evolves over time and it’s

important for us to make sure that our claims examiners learn that

interpretations have shifted.

So we send out, on a roughly monthly basis, a listing of the most

significant decisions of that kind, where either there has been a

slight shift in the interpretation, or where a systemic kind of interpretation is identified that we need to fix. In other words, the

board has said, we’re seeing this kind of error more frequently. And

we pick up on that and use it as a training device.

84

The second thing we do is that, as each individual case comes

back to us, obviously we have to then correct whatever the issue

has been, we have been directed to do by the board, which may

mean either just simply reversing the decision or proceeding with

further development. Those cases are also reviewed by district

managers to ensure that we understand why the error occurred in

the first place. And again, used as a training device for the specific

staff, so that we don’t repeat them.

Mr. HORN. Mr. Walsh, when you see a case that’s been sitting

around for 2 years in the system somewhere, do you ever expedite

their hearing date? How do you decide whose case comes first? Is

it simply first come, first serve?

Mr. WALSH. Yes, at the outset, to be fair to all appellates.

Mr. HORN. How about the person sitting there for 2 years waiting for their case to come back to ECAB as Attorney Weiser explains? Seems to me you ought to give them a speedy appeal, if the

bureaucracy is not doing anything for them.

Mr. WALSH. Yes, Mr. Chairman, just to address your first point,

to be fair to all litigants, we take them in the order in which they

were appealed. But we do expedite cases. And what we’ve been

doing, since OWCP has gone over their periodic roles, they hired

100 people to do that, which brought a tremendous amount of appeals to us, we’ve been expediting those cases, because we consider

those to be the most important cases.

We also expedite cases that attorneys have requested and given

specific reasons why they should be expedited. We keep track of

every case in the house. And we have a tracking system now that

has been devised where we have an inventory, we know where all

our cases are, we can print out the chronological listing of what’s

happened. And we’re keeping track of what we would call old cases.

When I addressed you 2 years ago, we had something like 725

cases over 2 years old. I’m pleased to report that now we’re down

to about 75, and that’s quite a large gap for us to pick up.

So we have a way of expediting cases, and we do.

Mr. HORN. So you can, and you do, you’re saying.

Mr. WALSH. Yes, we do.

Mr. HORN. OK. How many cases do you have who have not seen

a decision in 2 years, or left and never get into the system? I mean,

are there some cases you just reject or what?

Mr. WALSH. There are some appeals we reject, is that your question?

Mr. HORN. Yes.

Mr. WALSH. Yes. Of course, we will reject cases for jurisdiction.

We don’t have jurisdiction to take the case.

We also have numerous cases where after the appeal has been

filed, the attorney or the litigant will ask that the case be dismissed or withdrawn, because they want to proceed back before

OWCP because they have new evidence. So we have a lot of those.

So of the say, this year we’ll have 3,700 disposals, there may be

200 or 300 that are rejected because we don’t have jurisdiction of

the case.

Mr. HORN. In what sense would you not have jurisdiction?

Mr. WALSH. Well, if the case is appealed to us over a year from

the last merit decision, we can’t take jurisdiction of it. Actually, the

85

regulations provide that if the appeal is not made to us within 90

days of the last decision by OWCP, we don’t have jurisdiction. But

over the years, we’ve extended that for good reason. We’ll let them

appeal up to a year. If it exceeds that, we don’t have jurisdiction

of the case. They have to present whatever they have before

OWCP.

Mr. HORN. Well, what happens to them there? Does the process

just stop there?

Mr. WALSH. The claimant is free to go back to OWCP with whatever evidence they have. But for example—— Mr. HORN. Well, this sounds like a catch 22. They go up, they

go back and nothing happens.

Mr. WALSH. Let me explain. If in 1997 they had a merit decision

from OWCP, and they appealed to us in 1999, we could not take

jurisdiction of that case, because it’s over 1 year. That’s all I’m saying.

Mr. HORN. Well, does that make sense?

Mr. WALSH. Well, that’s the regulations. We have to—— Mr. HORN. Is that the law?

Mr. WALSH. That’s the law.

Mr. HORN. Or is that some bureaucrat’s dream?

Mr. WALSH. No, no, that’s the law that we have to follow. If

someone wants to amend that—— Mr. HORN. A law made by Congress, or an agency regulation?

Mr. WALSH. Well, the regulations are promulgated by the Department of Labor and the Secretary of Labor. We are of course

bound to follow those regulations. Now, if they were changed, you

could extend the appeal out as long as you wanted, for a year or

two or three. People could appeal after 5 years after the decision,

presumably, if the regs were changed. But it’s 1 year now, and has

been since 1974, when Congress made some amendments.

Mr. HORN. Well, whose fault is it that cases haven’t been processed, because they’ve missed it by a day or something like that?

Mr. WALSH. Well, the burden is upon the attorney or the claimant to file the appeal. And they have to do that within a certain

period. That would be true of any administrative body or any court.

Appeals have to be filed within a certain time. The burden would

not be on the agency.

Mr. HORN. Mr. Weiser, you ever have any cases like that, where

you’ve missed it for a client because of the 1-year rule?

Mr. WEISER. I’ve not had that, we’ve appealed it untimely. I’ve

had it where people have come to me, Mr. Chairman, and they are

over the 1-year mark. Yes, you can take that back to the district

office, but your review will be under clear evidence of error, under

the present regulations. Very difficult standard. You may bring in

medical documentation, for example, that shows you had a valid

claim. OWCP will reject it and so will ECAB, under clear evidence

of error. I’ve seen very, very few cases that have succeeded under

that standard.

Mr. HORN. Part of the complaints I see that have popped up

when I look through these cases have to do with the availability

of doctors one way or the other. Now, the agency has primary care

doctors, and to some degree, the individual that is injured has doctors. Or do they have to go through the agency doctor all the time?

86

Mr. WEISER. Well, as far as, if you look at initial injury, for example, take a traumatic injury. At a Federal agency like the Postal

Service. That employee, if they do not know their rights, may very

well be directed by that Federal agency to their doctor. I’ve seen

that. They will tell them, we have a doctor, go to this doctor.

They will then get the result they want from that doctor, the

agency will. If the injured employee then goes to their own doctor,

for example, then many times I’ve seen OWCP will take the agency

doctor position.

Now, if you can ever get a claim approved, then they will send,

the OWCP will be sending you to their second opinion doctors and

then ultimately to a referee examiner. And the problem I see in

that arena is, they will always take what their doctors say.

In the Bill Oates case, he was seen for 20 minutes by a referee

examiner, not examined, nothing. His claim was denied because

the referee examiner said there are no residuals.

Why wasn’t his doctor, who sees him on a weekly, monthly basis,

given more credence, credibility than the referee examiner? I think

it should be.

But that is what’s happening, that I have seen, Mr. Chairman.

Mr. HORN. Well, somehow we’ve got to get a system that protects

the public interest and protects the individual interest.

Mr. WEISER. I don’t disagree.

Mr. HORN. In California, we had a real mess in workers’ compensation, where there were lots of lawyers and doctors that were

just saying yes to everything, and they were wrong. Because they

were just milking the system.

So the question is, what kind of a board operation can you put

together and what kind of an agency operation can you put together where you have people of integrity that can give you the

medical data you need to act in a reasonable way? That’s what I’m

curious about, how do you handle that? Are we short on doctors?

Or do we rotate them, or if they go against the agency, do they

never get a case again? Or this kind of thing.

Mr. WEISER. Let me give an example, if I may, Mr. Chairman.

And this is on emotional condition claims, and they are out of three

clients I have in Memphis, TN.

They were sent for second opinion to a psychiatrist in Corinth,

MS. Now, that’s approximately 80 miles from Memphis, TN. All

three of them were sent there.

Mr. HORN. You mean they don’t have any psychiatrists in Tennessee?

Mr. WEISER. Well, that was my question.

Mr. HORN. I’ve got some clients for them. [Laughter.]

Mr. WEISER. It amazes me that Memphis doesn’t have psychiatrists for second opinions. I wrote the claims examiners, after the

third person. Because it didn’t sound right. You’re supposed to rotate.

All I got back was a telephone call, that said, don’t call us back,

but you’re opening a can of worms. And then for the third person,

they suddenly sent them to a psychiatrist in Memphis for a second

opinion.

But what was happening, the Corinth, MS, psychiatrist, on the

two cases prior to the third one, ruled for the OWCP every time.

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Again, the inference I have to draw, it’s a setup. The person is

being sent, being funneled to where they want them to go, knowing

the decision they’ll get.

And in California, you have a doctor called Elliott Ness that they

do that all the time, OWCP does, for second opinion or referee.

That’s all I can answer, is my experience, Mr. Chairman.

Mr. HORN. Mr. Fox, what’s your experience with second opinion

physicians? Do you agree with Mr. Weiser, and do you think the

board is handling claimants the right way in terms unbiased or

time? What are your people saying to you?

Mr. FOX. Same thing. I do have to agree with Mr. Weiser. When

one of my clients goes into a doctor’s office, assigned to them by

the Department, and they’re out in 10 minutes and they’ve got a

back injury, and they’re not physically touched during the examination, or when they would attempt to make comment on what’s

going on, how it’s affecting their lives, they’re told it’s not necessary. And they’re out in 10 minutes.

Mr. HORN. Well, do you tell the Federal program what is going

on with these doctors? Is this guy milking people and OWCP by

bringing clients through their doctor’s office? Is this set up to deny

people benefits?

Mr. FOX. I certainly believe that that’s going on. You’ve been to

a doctor, Mr. Horn, usually there are people waiting in the waiting

room.

Mr. HORN. Yes.

Mr. FOX. Not with these doctors. That tells me as a clinician a

lot about their practice and where they’re getting their boat payments.

Mr. HORN. What about that, Mr. Hallmark?

Mr. HALLMARK. The rotation process that we have in place is a

very strict one with respect to referee examinations. The referee examination is spelled out in law. It is the final resolution of dispute.

And we do everything we can to ensure that there is a rotation

that is fair, given the availability of doctors in an area.

Second opinions are not necessarily rotated in that fashion. Many

of our second opinions are obtained through private sector contracts that provide us with that kind of access. There may be, in

the example that Mr. Weiser notes in Tennessee, maybe that the

contractor who’s providing those second opinion referrals wasn’t

able to find somebody to operate in their system in Memphis.

We are aware of those kinds of issues and we take response

when we have complaints that are cited of the kind that Mr.

Weiser just mentioned. I’ve addressed in my written comments,

and I would point you to those, some of the changes that we’ve

made with respect to our doctor rotation processes and second opinion procurement, since the hearing in Long Beach in 1998. We are

anxious to ensure that this is a quality process and that claimant

violation, that claimant complaints about the quality of a review or

the way they are treated by a second opinion, or a referee doctor,

are treated seriously and addressed.

Now, it has to be understood, though, that these kinds of evaluations oftentimes are brief because the primary involvement of the

second opinion or referee doctor is in reviewing a very voluminous

pre-existing medical record. So the evaluation in person may seem

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to the injured worker to be cursory, when in fact, that’s from the

point of view of his specialist, that which is needed.

And again, if we have evidence that an individual is not providing the kinds of services that we believe are needed, and are of the

quality that we need, we will remove them from our list.

Mr. HORN. Let me just go through a few questions, then I’d like

to submit them on behalf of Mr. Turner and myself to all the witnesses, and it’s going to take a little time. So I think your staff will

want to work with you on that.

Mr. Walsh, the subcommittee received information from OWCP

officials that they discuss cases with board members. Under what

circumstances would officials contact board members to discuss

cases, and would those discussions be considered ex parte communications?

Mr. WALSH. Well, they would be considered ex parte, but I’m not

aware of any such conversations, context.

Mr. HORN. So you’re saying none really happened?

Mr. WALSH. None that I’m aware of, Mr. Chairman.

Mr. HORN. That you’re aware of?

Mr. WALSH. Yes.

Mr. HORN. OK. Now, with all of you, what are you doing to reduce the number of pre-hearing remands? Is that due just to incomplete records or what?

Mr. WALSH. I’m not sure what you mean by pre-hearing remand.

If a case is remanded, it’s remanded after full consideration by the

panel of a case, and they’ve decided to remand that case, and it

comes out in a written decision with rationale, and it directs the

office to do something. So I’m not certain what—— Mr. HORN. Well, I assume you found something that you wanted

as data to make a rational judgment, so you kick it back to OWCP.

Is that it?

Mr. WALSH. Yes. That’s our role. Our role is to review whether

they’ve correctly looked at the facts and correctly looked at the law.

If we disagree on either of those issues, and we find they haven’t,

that would be a basis for sending it back.

For example, we might feel that a case has to be developed, that

they have to send it out for medical, that they’ve only looked at one

side. So we think there’s enough evidence, what we call prima

facie, go back, office and develop the claim, which they will do.

Mr. HALLMARK. Mr. Chairman, you may be referring more specifically to the process at the hearings and review level. We do

have a pre-hearing review process, which again goes to some issues

that were raised in one of the earlier hearings. And this is in my

statement. We have substantially improved that review process to

ensure that if, for example, an appeal was filed from one of our district office decisions, it reaches Washington, but at the same time,

new medical evidence which is pivotal to the decision is received

from the injured worker. We then would quickly remand that case

without making it wait for the scheduling of a hearing. That’s the

data that I mentioned in my oral remarks, that we have reduced

the time for those pre-hearing remands from, I believe it was 160

odd days, to roughly 88 this year.

So we’ve taken that consideration as something that we really

need to work on and improve to ensure that these cases don’t linVerDate 11-MAY-2000 10:38 Dec 13, 2001 Jkt 000000 PO 00000 Frm 00092 Fmt 6633 Sfmt 6633 C:\DOCS\74832.TXT HGOVREF1 PsN: HGOVREF1
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ger and have to go through the entire process of waiting for scheduling of an oral hearing.

Mr. HORN. Ms. Dalton, in one of our earlier hearings, you testified that the customer service surveys were vague, stating that the

agency was unable to fully discern whether Federal injured workers were being adequately served by the process intended to help

them. And the Inspector General recommended that the agency enhance the accuracy of the data collected in the customer service

surveys by improving survey methodology so OWCP can better utilize the information.

Now, since the agency praises its customer service, why wouldn’t

it conduct customer service surveys?

Mr. HALLMARK. We have done so, Mr. Chairman. We did not

complete a review in 1999 because of the issues that have been

raised by the IG with respect to the technical sampling processing

some of the questions in the nature of the survey. We’ve completed

one just recently in 2000, which incorporated many of the recommendations from the IG report.

We don’t have the final report on that, but we certainly intend

to continue with that process, and to implement some of the other

comments, which were to go a broader series of measures to try to

get more precise information about the real impact and the real

views of our customers.

Mr. HORN. Let me ask you, Mr. Hallmark, does the agency measure the rate of recurrence of disabilities that sometimes occur with

former claimaints? If a recurrence of disability does occur, does the

agency begin calculating a new period of lost production days, or

are the recurrent lost production days added to the previous period?

Mr. HALLMARK. We do keep track of recurrences as a separate

category of case. The particular issue you’re raising with regard to

our measure of lost production days has been handled in the fashion that a particular period of disability is begun when the initial

claim loss claim is filed, when a new recurrence occurs later, after

the person has gone back to work, we treat that as a separate case.

Mr. HORN. My staff, in reviewing this, felt what steps do they

really feel need to be taken to ensure injured workers are cared for

in a timely manner, which is what we’ve seen from some of our witnesses this morning, both within the Branch of Hearings and Review as well as your board, Mr. Walsh. In other words, judicial review, more oversight by the subcommittee and congressional intervention and all that, I understand. But I’d really like to see it done

by the agencies affected.

So what can you say on that in terms of taking those steps to

assist injured workers and work in a timely manner?

Mr. HALLMARK. I believe I’ve already provided some statistics

that show, I think, fairly dramatic improvement in our timeliness

at the hearings and review level, and that we’re also working to

improve quality at that level, and at the first instance, so that

cases don’t need to go to hearing.

Mr. WALSH. Well, Mr. Chairman, as I indicated in my remarks

at one point in time, at around 1996, we were at a level of 5,500

cases. We dropped that to 3,600. By next year, we will be under

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3,000, probably around 2,600, we’ve programmed for. So as we

bring down our caseload, our timeliness is going to improve.

Again, we’ll expedite cases that we think should be expedited,

and certainly, that’s the termination cases. But other than that, we

think it’s fair to take them in the order in which they’re appealed.

Mr. HORN. Well, let me ask the gentlemen on the other side of

the aisle here, do you believe the remand rate is high within the

Employee Compensation Appeals Board and the Branch of Hearings and Review? And I would ask, you gentlemen, what’s the appropriate remand rate?

Mr. WALSH. I’ll respond to that. I think the normal affirmance

rate, if I can phrase it that way, amongst appellate bodies, and this

is courts included, would be about 90 to 92 or 93 percent. The reason ours would be 75 percent, essentially, is because we do both the

law and the facts, we do de novo. Whereas most courts and most

appellate bodies are only looking at the law. They’ll only look,

they’ll look at the administrative law judge’s opinion if there’s any

evidence to substantiate it, they don’t bother with it, they simply

look at the law.

So our remand rate would be a little higher than the typical appellate body, because we review both the law and the facts.

Mr. HORN. I’m interested in the board’s use of attorneys. Does

the Solicitor of Labor assign an attorney to the board?

Mr. WALSH. No, Mr. Chairman. We have 26 staff attorneys right

now. We’re a little short, because we have to hire some. But we

have 3 paralegals, and we have 7 board members, a total of 36 attorneys in the agency. They’re within our agency. They have nothing to do with OWCP. They’re part of our agency. And the cases

are assigned within our agency.

Mr. HORN. Well, what is the Solicitor’s attorney doing?

Mr. WALSH. Well, the only thing the Solicitor does is, after the

case is decided by the OWCP, they apparently review the cases. As

I indicated earlier, in about 95 percent of the cases, they say nothing. They just say, we’re submitting the case, we have no comments

on it.

But, if after the case is submitted, the claimant or the appellant

asks for oral argument, then the Solicitor will prepare a brief. Normally the other side does, too. That’s when they become really into

the case. But other than the oral arguments, they really don’t

make any appearance.

Mr. HORN. Well, you’ve got your own staff attorneys that go

through the case, I take it, and brief it for the members of the

board.

Mr. WALSH. Right. That is true.

Mr. HORN. So why do you need somebody from the Solicitor of

Labor?

Mr. WALSH. We don’t. They’re not part of our organization at all.

They are, on oral argument, they’re defending the Office of Workers’ Compensation decision. They’re not part of our operation. They

have nothing to do with us. Except to argue before us occasionally.

I want to make that clear. Because our attorneys do our decisions.

And our board members do our decisions.

Mr. HORN. Are they worried in some cases that it would lead to

going into the Federal court system, to get a final decision?

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Mr. WALSH. Let me explain, just quickly if I may. The first week

I was chairman I was served with a complaint that contended that

the decision of the board was arbitrary and capricious, etc., and

there was collusion between OWCP and ECAB, etc. About 3 weeks

later I was served with a complaint that the board was issuing decisions with two members, and that their decisions were unlawful.

Now, both those cases went up to Federal court. Summary judgment in both cases, and affirmed on appeal.

Since that time, in 1985, I’ve been served about 25, 30 times as

the board has, in OWCP, with similar complaints. That is, the

board’s biased, the board’s arbitrary, etc., and Constitutional provisions. And all those cases have been reviewed by the courts, they’ve

gone out on summary judgment.

So yes, the claimant can go into Federal court if they’re dissatisfied with our judgment. But the courts have limited it to the basis

of Constitutional violation.

If that answers your question, it can go into the Federal court.

Mr. HORN. Mr. Hallmark, what about the agency? How many

lawyers does OWCP have to look at these cases as they go through

the review process?

Mr. HALLMARK. The Solicitor’s office is an independent body

which is not part of OWCP either. It reports directly to the Secretary. They represent the director of OWCP in selected cases. And

I think there’s a legitimate reason for that, in the sense that, as

I indicated earlier, ECAB decisions establish case law, and result

in the evolving nature of how these cases are addressed. And the

director has an interest in ensuring that straightforward and interpretable kinds of outcomes are reached. And so the Solicitor’s office

in effect is looking at how the case law has evolved and defending,

in effect, the interpretations presented by the director.

Mr. WALSH. May I followup on that, Mr. Chairman?

Mr. HORN. Sure.

Mr. WALSH. I had in my extended remarks that we have had 51

volumes of law published since the beginning of the ECAB. And of

course, we try to strive for stare decisis when we have thousands

of cases coming through. Those volumes, they make up the law.

That’s what the law is for OWCP, for the Solicitor’s office and everybody else. We’re the court of last resort. Those volumes are sent

to law libraries around the country and to public libraries and

they’re produced for the Government Printing Office. And that is

the case law that’s built up over these 54 years now.

Mr. HORN. It was started when?

Mr. WALSH. The board came into being in 1946 through an act

of Congress, of course.

Mr. HORN. So that’s the case law, starting in 1946?

Mr. WALSH. Yes, that is true. And I might point out that these

volumes contain about 150 to 175 cases that we pick out ourselves,

that we think are the most important issues in a given year. And

they become the lead cases that OWCP follows and everybody else

follows, practitioners, lawyers, etc.

Mr. HORN. I want to ask Mr. Weiser, but I want to get a statistic

on the record, as my head slowly thought about all those lawyers

there, I remember that when I was assistant to the Secretary of

Labor under President Eisenhower, Betsy Margolin, the Solicitor’s

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office had a 93 percent appellate win record. She rarely, if ever,

had been defeated.

Do any of those cases go into the Federal courts?

Mr. WALSH. Well, yes, as I just indicated.

Mr. HORN. You do the work for them, I’m assuming?

Mr. WALSH. No, let me clarify. There are claimants that go into

the Federal court. And they, in my experience, about 35, 40 cases

that I’m aware of. The board has normally made defendant, and

the OWCP is made defendant, the Secretary is made defendant.

To my knowledge, all of those cases have been dismissed on the

basis of summary judgment after review of the case and affirmed

on appeal. And what the courts have said is that we will not look

at an ECAB decision, we will not overturn it, we will not put ourselves in their shoes, unless there’s a constitutional violation. And

that’s what they call a preclusionary statute. They say Congress is

very clear what they wanted. They wanted an administrative agency to conduct reviews in these cases.

Mr. HORN. Mr. Weiser, you face all those attorneys and board

members in court, and are knocking on doors in Jacksonville or

other areas you practice. What do you think about the review process?

Mr. WEISER. Let me address the court process, Your Honor.

There is 5 U.S.C. 8128, I believe, (a). The decisions of the Secretary

of Labor in the area of injury compensation cannot be reviewed by

a court, even by a writ of mandamus. That is by law.

So yes, they will get summary judgment in court, if a person

takes it there. I do not take cases there for that reason. Because

I think 5 U.S.C. 8128 will bar you.

As far as the remand rate, I would say the remand rate from

ECAB and the cases I’ve handled is perhaps 1 to 2 percent. It is

not up to 25 percent, as I think I’ve heard overall. But that’s been

my experience.

As far as the Branch of Hearings and Review, I do believe that

after your oversight committee looked at the branch, in my experience, I have seen many more fair hearings and decisions. They

have at least on the pre-hearing side, remanded cases back where

the district has been absolutely wrong. And I think we are getting

fair hearings.

My main concern is with the district offices, especially in Jacksonville and Dallas. Because I think they are non-responsive to

claimants, completely non-responsive. And I would add, I’ve heard

that the emotional claims are 6 months to get a decision. Not in

the cases I’ve had. We are running 11 months or greater. And that

is to initial decision.

And when you inquire why, you can inquire 11 months, 12

months later, say why are we not getting a decision, the answer

is, we’re still developing the case. If you can’t develop a case within

6 months, I question. And these are not complicated emotional condition cases that I’m representing. But every one of them that I

have had, Mr. Chairman, is running a minimum of 11 months for

an initial decision from a district office.

Mr. HORN. Well, I want to thank you all. In about 2 minutes,

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not meet when the full committee is meeting. And they’re downstairs in what would normally be our hearing room.

I want to thank all of you for coming, and we’ll send you some

questions I’d like to see an answer to in the next couple of weeks.

Don’t rush it, but if you could do it within the month, we’d appreciate it. And I know your staff might well answer some of these

questions.

I want to thank Russell George, our staff director and chief counsel; Heather Bailey is the professional staff member that is working with this issue. She’s to my left, your right; Bonnie Heald, director of communications, over there against the wall; Brian Sisk,

our clerk; Elizabeth Seong, staff assistant; George Fraser, intern;

and Trevor Pedigo, intern. And Mr. Turner’s staff, Trey Henderson,

counsel; Jean Gosa, minority clerk; and our court reporter, Shari

Acosta.

Thank you very much for coming. We’re adjourned.

[Whereupon, at 12:29 p.m., the subcommittee was adjourned, to

reconvene at the call of the Chair.]

Æ