Failures of previous reports

      The alleged OWCP "Customer Service Plan" is found at  http://www.dol.gov/dol/esa/public/aboutesa/cust-serv-pln/owcp/fecacsp.htm .  But none of the "customer service" surveys or audits have asked how well claimants are actually getting the protections that Congress intended in passing the law.  In fact, these official reports do not even acknowledge that to be a valid goal.  Nor have they surveyed the large percentage of claimants who have given up on appealing their claims when first denied, to get feedback on their reasons for not appealing.  Mr. Perez has questioned the reason for official indifference to this.

        Their own evidence shows that they focus on how long it takes OWCP to answer the phone, how much money they are saving the agencies on injury claims, how much may be wasted, and how many claimants are being returned to work.  OWCP is quite sensitive to the needs of the employing agencies, because they consider the agencies to be their "customers".

        OWCP's alleged "customer service" plan apparently is based on a 1995 survey, and they find only three points for possible improvement --" Two of these involve communications and one pertains to the adjudication of occupational disease claims."   They fail to see a single one of the problems that our survey indicates is systemic.

       However, OWCP admits injured workers aren't told how to satisfy their burden of proof, in their Customer Service Plan: ". . . we need to do a much better job of informing injured workers what the adjudication process entails, the type of evidence they need to supply, and the target timeframes we strive to meet in adjudicating their claims. Goal:  We will begin to notify employees filing occupational illness claims of these evidentiary requirements, what they can do to speed the process . . .".  "Begin to notify" ?  No further proof of the adversarial nature of the process is needed.

       They consider the employing agencies to be their "customers" on an equal footing at least with injured claimants:  "The program's customers include both injured workers and their employing agencies".   This is found in their Mission Statement at http://www.dol.gov/dol/esa/public/aboutesa/mission/owcp/fecamiss.htm .  This seems to be a shortened version of their Customer Service Plan.

        The 1994 GAO/GGD-94-67 was done in response to widespread allegations of doctor shopping by OWCP.  While they did not find doctor shopping as bias against claimants, they were not focusing on second opinions which are not subject to impartial rotation in the PDS system (page 5 of report).   And of course, second opinions are wrongly used in place of IMEs routinely.

        GAO and IG reports and "customer surveys" were simply self serving, too limited, and not based on independent research or free input from injured workers themselves as is our survey.   The report about Mr. Perez' testimony was hardly more responsive.  It is online at http://www.oig.dol.gov/public/reports/oace/perez.htm .   Based on reports furnished by OWCP, the 1998 report from the Subcommittee on Workforce Protections shows they apparently not aware of any reports of problems with injured workers getting the protections that the law intended.  The only action in 1998 apparently was a minor technical ammendment. H.R. 3096 was signed into law October 9, 1998. It became P.L. 105-247.  The subcommittee report is at http://frwebgate.access.gpo.gov/cgi-bin/useftp.cgi?IPaddress=162.140.64.21&f
ilename=hr836.105&directory=/diskb/wais/data/105_cong_reports

Causes of the failure of the OWCP system

       The current OWCP system under the FECA as presently written appears to suffer from several shortcomings:

A.  Lack of accountability.  The FECA as written leaves OWCP accountable to no one for its basic mission, that of providing certain protections to injured federal workers.  Penalties that are provided for wrongdoing against claimants appear to be unenforceable.   Injured workers  have no recourse to the courts to compel their agencies or OWCP to comply with requirements of the laws or regulations meant to protect them.

B.   Agency priorities. Agencies under pressure to cut costs and meet goals in performing their own missions automatically come into conflict with the intent of the FECA and needs of their injured workers.  Agency managers are not penalized for violations against their claimants, for falsification, coercion, delays, or retaliation; rather the incentives work against reporting injuries and properly processing claims.  Bonuses for lowering injury claims create an adversarial system on a personal level.  Claimants commonly report to us that the mere filing of the claim instantly guarantees a hostile work environment for them.  When OWCP or agency IGs are informed of this, nothing can be done even though they violate the government employees code of conduct.

C.   Burden of proof.  The system places all burden of proof on injured workers --who are not attorneys and must deal with a complicated bureaucracy-- without informing them as to what is required or lacking in medical documentation.   Then OWCP focuses on  preventing "fraud" (which turn out to be almost zero by their own admission).  This is absolutely adversarial and argues for legal recourse.  OWCP and the employing agencies accept no responsibility whatever for determining whether, in fact, a claim is valid and medically supported; they consider their role to be finding ways to deny claims and cut costs for OWCP and the agencies.   OWCP does not play a neutral or objective role in claims.

D.   Regulatory leeway. The FECA leaves OWCP (or Secretary, DOL) enough leeway to make CFR regulations and internal directives that are adversarial for claimants, effectively rewriting the law to suit the agencies which will ultimately pay the bills.  There is no provision in the law for anyone to challenge these regulations as proper under the law.

E.   Unrealistic workloads and poor working conditions in many OWCP offices for those handling claims below the managerial level.  Besides the issue of basic fairness to those workers, their working conditions cannot foster efficient, timely claim handling, and they result in endless errors and confusion.

Outline of FedupFeds recommendations for reform

       The reports from injured workers themselves indicate the kinds of reforms which are needed to carry out the intent of the law.  Mr. Perez' own recommendations are well-informed and to the point.  However, they cannot be put into practice without changing the CFR which the Secretary, DOL, has sole authority over under the FECA.   We do not feel this will be done voluntarily.  The needed changes reported by injured workers as well as Mr. Perez must then be written into the law, the FECA and related laws, as required.  (The use of the words "should", "can" and "must are used interchangeably here since all these recommendations must be writen into the law itself, without misinterpretation.)

       Further, the right of the worker to enforce the law through the courts is not available under present law, and this recourse must be made available if the law is to have meaning.   The present system demonstrates how much the law means without it.  Simple fairness dictates the need for legal recourse in any denial of due process, claim or treatment denial, or lack of reasonable accommodation for medical conditions on the job, without the years it takes to exhaust the administrative processes.  While informal hearings should be retained,  waiting for ECAB or EEOC is not a credible alternative, and justice delayed is justice denied.   (This does not involve reverting back to a fault-finding system of all or nothing.) 

      Managers and officials directly responsible for regulatory violations against a claim should be held personally liable under the law.  Realistic attorney arrangements must be a part of the reforms if legal recourse is to be realistic, with damages under appropriate circumstances.  Actual agency negligence should be actionable in court separately subject to damages, attorney fees, and court costs, as should agency discrimination on the basis of handicap, or refusal of reasonable accommodation as defined by current regulations, without exhausting administrative channels.  Claimants must have the right to challenge any CFR rules or policies in court as contrary to the intent or letter of the law.

       Ideally, no one should need an attorney so long as officials and agencies follow clear procedures and requirements.  But the threat of civil recourse is needed to enforce the law and procedures.  Since everything is too complicated in the present system, the civil recourse needs to be based on a simplified process with all options, requirements, and legal obligations clearly explained in writing to injured workers at every step, as well as their employers and medical professionals. 

       OWCP must be given the specific obligation to investigate and appraise both sides of claims equally to determine the merits for and against claims.  This extends to their use of second opinion doctors and IMEs.  The "rehab nurse" program should be outlawed immediately. R.I.P.  Mr. Perez discussed this in the context of the FECA.

       OWCP authorizations and health insurance arrangements and laws must be changed so that no one has testing, treatment, or pain relief delayed for months or years awaiting the outcome of a claim.  Insurance should pay pending the outcome, with the costs charged back to OWCP upon claim approval, with interest.  This should help to avoid the "cost shifting" and place the responsibility for injuries and occupational exposures where they belong, with the agencies.  It should also stop the flight of competent physicians from OWCP cases.   The prompt payment law should apply to treating physicians.  Under this system, claimants should continue filing routinely as needed for treatment under their insurance, with all accepted claims and costs charged back to the employing agency or OWCP as appropriate.  The insurance companies should be the "gatekeepers" of what is reasonable and necessary tests and treatment in each case, not OWCP.  (We can't approve of all the problems with insurance coverage, but the injured shouldn't get less than they would under their insurance if it were not job related.)  Claimants should not be billed for deductibles or copayments unless and until claims are denied and appeals exhausted.

      Would this create an adversarial system between the health insurance companies and OWCP? NO, because it's already an adversarial system between OWCP and the lone, isolated injured worker.  It would just level the playing field, with the big boys on your team.

      Without the different rules for COP and medical authorizations for traumatic and occupational claims, there would be no need for two forms, CA-1 and CA-2, only one.  No CA-16 authorization would be needed from the employer--and no opportunity for obstruction and delay on their part as well.

       All claim forms should be filed directly to OWCP instead of having to go through employing agencies, and OWCP should then requrie the agency information directly from the agency.  These requirements should be posted conspicuously in all federal workplaces, along with hotline numbers to get claim forms as needed.

       To minimize the impact of delays and errors, injured workers should be paid existing income replacement benefits from the beginning of periods of disability, automatically, pending outcome of the claim.  If not accepted when appeals are exhausted, the overpayment can easily be collected from federal workers.  Or as an alternative, claimants should be allowed to borrow against their retirement or FERS in such cases.   Whichever method is implemented, it would minimize the cost-shifting to SSD and FEHB, by not forcing the claimant to go weeks or months without income. This does not entail any increase in actual benefits.

       When an informal hearing does not occur within 90 days from the date of appeal, the claimant should be paid full replacement income and benefits until the date that a hearing is held and decision rendered.

       Schedule awards should be updated to be realistically based on current medical and occupational information, and the means of determining them should be spelled out according to accepted medical standards.

       The time limits imposed on claimants must be flexible to allow them reasonable opportunity under the circumstances to get needed documentation and/or testing to support their claims, at their own option.  This is not the case presently, as Mr. Perez has explained.

       The standards of proof for accepting claims and periods of disability must be made equitable as Mr. Perez has outlined.  The treating physician must be given greater weight, all other things being equal.  Barring serious medical or legal questions to resolve, the treating physician's report should be considered probative. 

      Injured workers should have more leeway to change treating physicians under certain circumstances.  When disabled workers file for all available options,  medical evidence that is accepted for SSD should be accepted for OWCP without the duplicate costs of repeating tests etc.  

      Medical conflicts (when they arise in spite of giving the treating physician greater weight)   must always be settled by IME's, not by a secret process, and they must be chosen by fair and open methods.  For IME appointments, the claimant should be given the same information in writing as the IME, as well as information on the doctor's qualifications.  The same should apply to any second opinion appointment.  As Mr. Perez has pointed out, the worker is cut out of the process when OWCP and doctors have private communications, and the Statement of Accepted Facts can be completely wrong. 

     Second opinions ordered by OWCP should not be the basis for denying claims or cutting off benefits; in medical conflicts, only IME's can be allowed to resolve medical questions, as Mr. Perez has argued.

     Agencies should be barred from requiring fitness-for-duty exams in any OWCP claim or return to work question.

     Rehabilitation services prescribed by the treating physician, at the claimant's option, should be selected at the claimant's option and paid at the prevailing local rate.

     In any hearing, the appellant's complete case file should be sent to him or her a specified number of days before the hearing is scheduled.  We insist that all communications between OWCP, doctors, and employers be required to be in writing with immediate copies to the injured worker by certified mail.  Further, all pertinent information including therapy records must be included in material sent to second opinion doctors and IMEs, and whatever they send to OWCP must be sent to the claimant as well.

       Controversial or questionable diagnoses or treatments should be examined publicly for approval by independent medical commissions (with input of groups affected), and reasonable standards applied in the interest of the patient--the injured worker. The treating physician should be given wide latitude in diagnosis and treatment authorization without delay, and this consideration must override insurance company guidelines by law.

      The easy, cost-cutting excuse of "national security" should not be stretched to withhold crucial evidence of toxic exposure and accidents needed to validate claims.  There is no way under the Kasza case mentality (mosaic theory) to even investigate how many thousands of loyal federal workers have been and will be summarily denied all coverage under the FECA.

       To remedy gross injustices under the present system, a plan should be devised to review and reopen closed cases that had any medical substantiation for the past several years, to consider them de novo under the new regulations and procedures.

       Proper funding and staffing at the clerical level in OWCP offices should be mandated and monitored by the Secretary, DOL in consultation with AFGE.  Working conditions and workloads nationwide should be investigated and remedied, for the benefit of the workers in OWCP themselves as well as the claimants.

       All rights and requirements should be posted conspicuously in every federal workplace, with an ombudsman hotline, and every notice of penalties for fraud should also carry notice of civil liabilities and penalties for managers and agencies as well.  All these reforms written into the law will avoid most drawbacks of the old tort system and the present OWCP system as well.

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