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"The punishment which the wise suffer who refuse to take part in government, is to live under the government of worse men" - Plato 427-347 BC |
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"The punishment which the wise suffer who refuse to take part in government, is to live under the government of worse men" - Plato 427-347 BC |
| As noted in Table 5, the number of pre-hearing remand cases has caused the backlog in the Branch of Hearings and Review to steadily increase to the point that it would have taken more than 16 person years to eliminate at the end of FY 1996. This backlog has materially lengthened the time it takes to have a hearing and receive a decision. When deserving injured employees are without benefits, justice delayed is justice denied. The FECA is remedial legislation and one of its major purposes is to prevent Federal employees, who are without income because of job-related injuries, from sinking into poverty. However, the combination of large numbers of improperly denied cases and delays in scheduling hearing has forced many injured employees into poverty which is directly contrary to the purpose of the Act. It is not unusual for an injured employee to wipe out his or her life savings, lose their house and be forced into bankruptcy because of lack of timely benefit payment. While cost savings and better service are complementary parts of the compensation covenant, Claimants are being cheated. Director DFEC Markey told me that 40% of Claimants whose benefits are terminated never respond. When I asked him to explain why this figure was so high he said "we just don't know." In light of a remand rate averaging 45% it would appear that DFEC should seek some answers. However, as shown by the thrust of the data and narrative presented in OWCP's Annual Reports, DFEC is not interested in those types of answers. DFEC is more interested in measuring its success by the amount of benefits reduced. Page 20
============================================================= In addition, to deflect attention from its significant adjudication failures, DFEC has chosen to emphasize the timeliness of its decisions. Although DFEC attempts to equate "timely decision" with "correct decision" it is obvious that a correct decision, rendered outside of an arbitrary and capricious time standard, is preferable to an incorrect decision which is rendered within such a standard. In his September 30 written testimony, Acting Director, OWCP Hallmark stated "[a]n average of 92 percent of all traumatic injury claims are approved upon initial adjudication.' This is misleading. In fact, in October 1993, DFEC implemented new procedures for adjudicating minor, lost-time traumatic injury cases. This type of injury represents the vast majority of all traumatic injuries reported to DFEC.(61) The FY93 Report described these procedures as follows:
According to the FY93 Report, "during a pilot implementation of these procedures approximately 72% of all traumatic 'lost-time' cases created were processed without an initial claims examiner review. Of these cases, fewer than 14% were subsequently reopened for adjudication."(63) Furthermore, according to the data published in OWCP's FY96 Report, more than half of the traumatic injuries ___________________________________________________61 See FY92 Report at 7: cases created equals no lost time cases plus continuation of pay cases. 62 FY93 Report at 9 (emphasis added). 63 Id. Page 21
============================================================= reported actually involved no lost time from work.(64) This means that the great majority of cases Acting Director Hallmark testified were "approved upon initial adjudication," involve minor or no lost time injuries. These cases are not reviewed by Claims Examiners and are not in fact "approved" in the normal understanding of that word, or the implication created by Acting Director Hallmark's testimony. When confronted with data showing a consistent remand rate of 45%, a senior OWCP official attempted to minimize the significance of this shortcoming by stating that the actual number of remanded cases is very small in comparison to the total number of injuries reported. This statement is reflective of the arrogance and insensitivity that permeates all of DFEC and OWCP. I am sure that the many employees whose decisions are remanded each year, after a lengthy delay, view the significance of their case differently. Furthermore, the number of cases remanded should be measured against the number of serious injuries reported in a year (10,000) rather than the total number of injuries reported in a year most of which are so minor that DFEC does not even devote staff resources to reviewing them. However, even the number of cases listed in OWCP`s Annual Reports report as remanded do not reflect the true extent of poor decisions. For example, because of delays in scheduling timely oral hearings, DFEC officials have encouraged Claimants to request a review of the written record in lieu of an oral hearing. According to data published in the FY96 Report,(65) there was an average of 427 requests for written record reviews each year from FY88 to FY91. However, as summarized in Table 6, from FY92 to FY96, the average had increased, by 52%, to 648. Applying the average remand rate(66) during this period (42%) to this figure means that the number of remands should be increased by 272 cases. ___________________________________________________64 Table A-2. Page 22
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From FY92 to FY96 the number of hearing requests dismissed each year averaged 1,056 and the number of withdrawal/no-shows averaged 567 per year. These numbers are high, representing respectively approximately 15% and 8% of the average yearly hearing requests and 28% and 15% of the average annual merit decisions, for the same period. A hearing request may be dismissed if the injury or death occurred prior to July 3, 1996; if the request was not made within 30 days of issuance of the decision; or, if the decision of the District Office was not final. ___________________________________________________65 Id 66 DFEC has not reported the number of ROR cases remanded. However, it is assumed that thenumber of cases remanded for this category would emulate the number of hearing cases remanded. 67 Sum of categories does not equal Total Hearing Requests. The difference represents the annual disposition deficit identified in Table 5, supra. 68 Includes no-shows. Page 23
============================================================= Some dismissals occur because the hearing request was not made within 30 days after the of the issuance of the decision. This requirement is statutory.69 However, the 30 day period is calculated from the date of the decision, which is not the date it is sent. The decision spends some time in the District Office waiting to be mailed. The decision also takes time to reach the Claimant by mail. Therefore, a Claimant actually receives the decision several days after it is dated. According to the regulations, "[a] Claimant is not entitled to an oral hearing if the request is not made within 30 days of the date of the issuance of the decision as determined by the postmark of the requeSt."70 It is not equitable to strictly construe the 30 day period for requesting a hearing when the District Office does not release the decision timely. In addition, hearing requests are dismissed because, even though the Claimant objects to a District Office action, a formal decision may not have been rendered. Such actions may actually include denial of compensation and medical benefits. However, a decision is not a final decision until it is issued, with appeal rights, in accordance with § 8124(a) of the Act.71 Notwithstanding this technicality, the Claimant, seeking a remedy, requests a hearing. If no formal decision has been rendered, the case is merely sent back to the District Office. A formal decision is then rendered, whereupon the Claimant requests another hearing. When an average of 15% of hearing requests are dismissed, and when the number of dismissals equals 28% of merit decisions, basic principles of customer service require some analysis of the reasons. Once again, neither DFEC data nor OWCP Annual Reports address this critical point. ___________________________________________________69 5 U.S.C. § 8124(b)(1). 70 20 C.F.R. § 10.131(a). 71 "The Secretary of Labor shaU determine and make findings of facts and make an award for or against the payment of compensation 5 U.S.C. § 8124(a). Page 24
============================================================= Therefore, it is reasonable to assume that at least a portion of the dismissed cases would have progressed to hearing if DFEC did not impose artificial procedural barriers, i.e., more hearing requests would be timely if the date for "issuance of the decision" were determined by the postmark of the decision rather than the date of the decision. Similarly, more requests for hearing would be ripe if the term "formal decision" were viewed more reahsticafly.(72) More cases proceeding to hearing would mean that more cases would have been remanded.(73)Some of the withdrawal/no-shows represent injured employees who have become frustrated with the more than 8 month delay in the hearing process and have sought some other remedy, e.g., many Claimants apply for Office of Personnel Management disability retirement in order to have some income. Therefore, it is reasonable to assume that a portion of the withdrawal/no-show cases would have gone to hearing and would have been remanded.(74) ___________________________________________________ Page 25
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Contents - Perez Testimony | FedupFeds Report -- survey results | Appendix to Report |
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