Director, DFEC Markey has stated that 40% of Claimant's whose benefits have been terminated do not respond. From FY93 to FY96 an average of 2,267 Claimants'had their benefits reduced or terminated each year.75 The average remand rate for this period was 42%. This means that, if every Claimant whose benefits were reduced or terminated exercised their appeal rights an average of 381 additional cases per year would have been remanded.76

     Another way to evaluate the number of remanded cases would be to compare it to the total number of serious injuries reported in a given year. Acting Director, OWCP Hallmark testified that DFEC receives approximately 10,000 serious injuries per year. This number corresponds to the number of QCM cases identified in Table 3. A more accurate indicator of DFEC's success would be to monitor its handling of these cases. The number of remanded cases, derived above, is 24% of the total serious injuries handled by DFEC in FY96.(*79)

     The number of remanded cases, and the fact that the majority of remands occur prior to hearing, suggest that DFEC's procedures, designed for headlong adjudications, are flawed.

The Rush to Judgment

     Director, DFEC. Markey and Acting Director, OWCP Hallmark established and enforced arbitrary and capricious time standards on the District Offices. These time standards require a District Office Claims Examiner to render a decision on a claim within 45 days and to act on a proposal to terminate benefits at the end of 30 days. These time frames are too short and are too rigidly enforced to permit appropriate consideration of the merits of the claim. This has resulted in significant numbers of prematurely denied cases.

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     For example, after the initial review of a claim a Claims Examiner wild write to the injured employee and advise him or her of any evidence necessary to perfect the claim for compensation. The injured employee is typically given 30 days to respond. However, when the Claims Examiner drafts the deficiency letter it is not received the same day it is dated. The letter spends some time in the District Office waiting to be mailed. The letter also takes time to reach the Claimant by mail. Therefore, a Claimant actually receives the letter several days after it is dated. The Claimant then prepares a response which takes several days to reach the District Office. In fact, when a decision is rendered 30 days from the date of the letter, the Claimant has not received "at least 30 calendar days" to respond as required by the regulation.(*80)

     When the time standards require a decision, the Claims Examiner will deny the claim if the requested information has not been submitted. A Claimant may ask for a hearing to appeal the denial of the claim. In the period between the time the claim is denied and the time the case is transferred to the Branch of Hearings and Review, the requested evidence may come in. In some cases the information is in fact received by the District Office in time but is not put into the case file quick enough to prevent the denial. However, unless specifically asked to do so, the District Office will not reconsider the denial. It appears to be directly contrary to the purpose of the FECA to quickly deny benefits without at the same time trying to quickly consider the merits of the claim when the requested evidence is received.

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     Similar problems plague decisions to terminate benefits. In Kendall v.Brock (*81) a district court granted preliminary injunctive relief to a Claimant whose benefits were terminated without a pretermination notice or an opportunity to respond. DFEC then promulgated FECA Bulletin 86-85. This Bulletin established new procedures for the termination or reduction of compensation benefits.(*82)

     The procedures require that a Claimant, whose benefits will be reduced or terminated, must be notified of the proposed action by letter. This letter informs the Claimant that he or she has the right to submit evidence and argument against the proposed action within 30 days.(*83) The procedures state that

[c]ompensation and medical benefits should not be terminated or reduced during the 30 day period. Payment should continue until any evidence submitted by the Claimant has been reviewed and a formal decision has been issued.(*84)

     However, this 30 day period is rigidly enforced. The procedures further state:

[a] Claimant may state that he or she intends to submit additional evidence but cannot do so within the 30-day period. The Claims Examiner] CE should advise the Claimant that the OWCP will issue a decision at the end of the 30-day period and that the Claimant may submit the evidence later, in support of a request for reconsideration of the final decision.(*85)

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*81 689 F.Supp. 354 (D. Vt. 1987).

*82 The procedures were incorporated into the Federal (FECA) Procedure Manual, ch. 2-1400.

*83 There is no statutory basis for this 30 day period. This is purely discretionary on the part of DFEC.

*84 FECA Procedure Manual (PM) ch. 2-1400.7c.

*85 FECA PM ch. 2-1400.8b. This is not an adequate remedy. In fact, reconsiderations take at least 90 days to complete. See n.95, infra, and accompanying discussion. A better solution would be to grant the Claimant a reasonable extension.

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    As with the deficiency notice, the pre-termination notice is not released in a manner that will provide a Claimant with the full 30 days to respond.  The procedures require a Claims Examiner to refer the case file, with the notice of proposed termination and a copy of the evidence which forms the basis for the proposal, to a Senior Claims Examiner for review and concurrence. If the Senior Claims Examiner agrees with the proposed termination "he or she will so indicate on the notice and release the letter advising the Claimant of the proposed termination or reduction"(*86) If there is any delay between the date the Claims Examiner prepares the notice of proposed termination and the date the Senior Claims Examiner releases it, the Claimant has less than 30 days to respond. Furthermore, the termination procedures do not allow time for the notice to reach the Claimant by mail and for the Claimant's response to be processed by the DFEC mail room.

     DFEC continually emphasizes its timely decision making.(*87) However, when nearly half of these so-called "timely decisions" are remanded when appealed, it is incredible that the OWCP Annual Reports to Congress, continually herald DFEC's success in making timely decisions.

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Claimants Need More Time to Submit Required Evidence

     The rigidly enforced time standard are causing decisions to be made before the evidence necessary to render a correct decision can be submitted. As noted above, deficiency notices are not reaching Claimants in sufficient time so that they can make a timely response. Claimant also have insufficient time to response to termination notices as can been seen from the following illustration.