The Federal Employees' Compensation Act (FECA)(1) is administered by the Department of Labor's Division of Federal Employees' Compensation (DFEC). Organizationally, DFEC is within the Office of Workers' Compensation Programs (OWCP) which is within the Employment Standards Administration.

     The Employment Standards Administration is headed by an Assistant Secretary. OWCP is headed by a Director, whose title is Deputy Assistant Secretary for Workers' Compensation. The Branch of Hearings and Review (H&R), an FECA appellate body which conducts oral hearings,(2) is in a peculiar position. H&R Hearing Representatives conduct hearings as delegees of the Secretary, but, organizationally, H&R is located in DFEC.

     For long periods of time, OWCP had no Director. During these periods, OWCP was headed by Mr. Shelby Hallmark, who was the Acting Director, OWCP. Mr. Dennis Mankin was Mr. Hallmark's special assistant. DFEC is headed by Mr. Thomas M. Markey, who is the Director, DFEC. H&R is headed by Mr. Robert Barnes assisted by Mr. Edward Duncan who is the Assistant Branch Chief.

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to make provisions for their financial liability since jury awards were unpredictable. Before 1910, the laws determining employers' responsibility for industrial injuries in almost every State had been handed down from the pre-industrial period in England and the United States. Under these laws an injured worker's only recourse was through the courts where the common law rules of liability attempted to determine who was at fault.

     Under the common law, the employer was deemed to have certain legal duties of protection which he owed to his employees. These duties were: 1) to provide and maintain a reasonably safe place to work, and safe appliances, tools and equipment; 2) to provide a sufficient number of suitable and competent fellow employees to permit safe performance of the work; 3) to warn employees of unusual hazards; and 4) to establish and enforce proper safety rules.

     Under the law of negligence, failure to use that degree of care which was reasonably necessary to protect another person from injury constituted a cause of civil action. To sustain this action, the injured party had to prove damage and a natural and continuous sequence, uninterruptedly connecting the breach of the duty of protection with the damage as cause and effect. If the employer properly performed all of its duties of protection, it could not be held liable for an injury to an employee arising out of his employment.

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     Furthermore, an employer had several defenses under the common law which deflected responsibility for work-related illnesses, injuries, and deaths from the employer to the affected employee, or to other employees: the principle of contributory negligence; the fellow servant doctrine; and, the assumption of risk doctrine. With the expense of litigation added to these defenses, the worker faced almost insurmountable obstacles in pressing a claim.(3) However, if the employee was successful, the jury award could be very large.

     Workers' compensation differs from tort liability in a number of important ways. The basic test of liability in workers' compensation is work connection rather than fault. Thus, the test is not the relation of an individual's personal fault to an event, but the relationship of an event to employment. Under workers' compensation, unlike tort, the only injuries compensated for are those which produce disability and thereby presumably affect earning power. For this reason, some classes of injuries which resulted in verdicts of thousands of dollars at common law produce no award whatever under a compensation statute. This addresses some of the employers' concerns.

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enable the disabled worker to exist without being a burden to others. In summary, tort litigation is an adversary contest to right a wrong between the contestants; workers' compensation is a system, not a contest, to supply security to injured workers and distribute the cost to the consumers of the product,

     Workers' compensation, therefore, represents a covenant. Under workers' compensation law each side gives up something that is available to it under the common law, but simultaneously receives something as well. The employer relinquishes the defenses enjoyed under the common law, but this loss is offset by a known level of liability for work place injuries and deaths. The employee gives up the opportunity for large settlements provided under the common law, but receives the advantage of prompt payment of compensation and medical bills. These tradeoffs make the workers' compensation system acceptable to both parties.(4) However, where either party does not receive the benefits of this covenant, the system becomes unacceptable.

DFEC's Mission

According to DFEC's Mission Statement

[t]he purpose of the Federal Employees' Compensation program is to provide Federal employees who sustain work-related injury or disease with adequate and timely benefits for medical care and wage loss replacement, as well as assistance in returning to work where necessary.(5)

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     Injured employees can also expect assistance in returning to work.

     Although various OWCP and DFEC documents state that the interests of injured employees are paramount, an analysis of the data published by OWCP, together with the enormous numbers of complaints from injured employees suggests otherwise. These complaints, together with the implications of OWCP's data, pose the question: is DFEC properly carrying out its mission?

     According to its current Strategic Plan, DFEC has the following vision

[a]s the country's largest self-insured employer, the Federal government is uniquely situated to find the best ways to take care of people affected by workplace injuries. And as one of the longeststanding workers' compensation programs in the nation, FECA can be a laboratory for excellence in the field. It takes pride in its return to work success, its swift benefit delivery its cost-effective and peopleoriented administration, and its low friction costs and nonadversarial procedures for adjudicating and managing claims (emphasis added)

     DFEC wants "Federal employees who experience work-related injuries of illness to know that they can rely on the FECA program to provide them with the best assistance and services possible." To implement this vision, DFEC has established, among others, the following Strategic Goals and Objectives

     In 1993, the Office of Workers' Compensation Programs (OWCP) first submitted a report to Congress regarding administration of the Federal Employees' Compensation Act by its Division of Federal Employees' Compensation (DFEC).(9)