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49 Data derived from OWCPAnnual Report to Congress FT 1996, Table A-2..
50 "Total Merit Decisiond' (TMD) represents Total Hearing Dispositions minus the following categories of procedural decisions: dismissals and withdrawals/no shows. TMD also does not include Reviews of the Written Record, for which DFEC has not provided data on remands. It is expected that the remand rate for this category of cases would emulate that of hearing cases.
51Represents 2.6 person years of work. Hearing Representatives must take 9 trips per year containing 35 cases which equals 315 hearing cases per year per Hearing Representative (829 + 315 = 2.6).

     Another telling statistic is that the majority of cases remanded by H&R are remanded prior to a hearing. An analysis of the data published by OWCP in its Annual Reports, and summarized in Table 5, reveals that, in fact, 55% of cases remanded by H&R are remanded prior to hearing. This means that the decision was incorrect at the time it was rendered or that additional evidence sufficient to set aside the decision was received after the decision was rendered but before a hearing.

     With the remand rate so high, and with the number of pre-hearing remands comprising the majority of remands, the process obviously is not streamlined to provide "a fair, swift, and people-oriented compensation system,' as claimed by DFEC officials. As noted above, the most important goal is the reduction of compensation costs. Neither the OWCP Annual Reports, nor DFEC's vision statement and Strategic Plan, identify the reduction of improper denials as a goal.  While DFEC's Strategic Plan, 52, states that "70+% of decisions in the four offices measured thus far are fully supportable on appeal," (53) this figure is contradicted by the data summarized in Table 4.

     The flood of improper denials has also lengthened the time an injured employee must wait for a hearing. In written testimony, presented at a September 30, 1997, oversight hearing before the Subcommittee on Workforce Protections of the House Committee on Education and the Workforce, Acting Director, OWCP

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52 Strategic Plan, Goal 7, Objective 7.2.

53 As explained by Director, DFEC Markey, this statement does not mean that "70+%" of decisions reviewed actually were sustained. This "statistic!' merely represents the opinion of the reviewing team that a decision would be sustained if appealed.

Shelby Hallmark stated: "[t]he time required for a hearing to be held and a decision issued varies depending on where the hearing must be held, but is generally about eight months."(54) This means that, in addition to a high remand rate, injured employees must wait an average of 8 months to have an incorrect decision set aside. In the majority of these cases the injured employee is without any benefits for this period. This fact, together with the enormous numbers of complaints from injured employees, belies DFEC's claim that it provides "swift benefit delivery."

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54 This statement does not appear accurate since the letter sent to Claimants when their hearing request is received by H&R states: "If you have requested an oral hearing, and it is determined that the case is in posture for such, you can expect the case to appear on a hearing docket in approximately six to eight months." Hearing Representatives have approximately 75 calendar days after the hearing to release 70-85% of their decisions and 100 calendar days to release 96% of their decisions..

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Cumulative Backlog - (5171)(59)

Cumulative Pre-Hearing Remands - 4225(60)

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55 Data derived from OWCP Annual Report to Congress FY 1996, Table A-2.

56 Total Hearing Requests (THR). Total Hearing Dispositions (THD)

57 This represents number of cases not disposed of in a given year, which is derived by subtracting THD from THR. The deficit is added to the cumulative backlog.

58 Represents 3.3 person years of work. Hearing Representatives must take 9 trips per year containing 35 cases which equals 315 hearing cases per year per Hearing Representative (1034 - 315 = 3.3). This means that H&R requires additional Hearing Representatives just to stay current. In the alternative, the number of Hearing Requests needs to be reduced.

59 Represents 16.4 person years of work. This means that more than 16 people would have to be assigned to H&R for a year to eliminate the backlog which has accumulated since 1992.

60 Since cumulative pre-hearing remands represented 82% of the cumulative backlog, a reduction in the number of pre-hearing remands would have reduced the cumulative backlog which, in turn, would shorten the more than 8 months it currently takes to hold a hearing and issue a decision.

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