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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

The Employees' Compensation Appeals Board (ECAB), the highest appellate body under the FECA, has consistently stated that the Act is a remedial statute and should be broadly and liberally construed in favor of the injured employee to effectuate its purpose and not in derogation of the employee's rights.(*99) The ECAB has also stated that proceedings under the Act are not adversarial in nature nor is the District Office a disinterested arbiter. While the Claimant has the burden to establish entitlement to compensation, the District Office has an obligation to see that justice is done.(*100) However, DFEC officials disregard this guidance.

According to its Strategic Plan, DFEC' "takes pride in its . . people-oriented administration." The enormous numbers of complaints regarding DFEC's treatment of injured employees give the lie to this statement. In fact, DFEC is permeated with anti-Claimant bias.

When I pointed out, in one of my decisions, that the actions of a District Office, in recovering an overpayment without any notice or hearing, violated the fifth amendment's guarantee of due process, Director, DFEC Markey cautioned me not to make reference to Claimants' constitutional rights in future decisions. He made this statement after he discussed the case with Deputy Director, OWCP Hallmark's special assistant Mr. Dennis Mankin. Mr. Mankin, who has repeatedly made disparaging comments about injured employees and has repeatedly violated the rights of Claimants, told Mr. Markey that advising Claimants of their constitutional rights would "give them ideas" that would provide additional reasons to challenge DFEC actions.

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*98 FECA PM ch. 2-1602.2c (1996)

*99 Stephen R. Lubin, 43 ECAB 564, 569 (1992). See also Peggy Ann Avila, 45 ECAB 812, 814 (1994); Erlin J. Belue, 13 ECAB 88, 89 (1961); Jo Ann Ensor, 9 ECAB 260, 266 (1957); Pearl PhillipsParker, 9 ECAB 200, 205-6 (1956); Ana Torres (Henry Torres), 6 ECAB 375, 377 (1953); GA. and E.E. Wightman (George Muller Wightman), 5 ECAB 559, 562 (1953).

*100 Rebel L. Cantrell, 44 ECAB 660, 666 (1993); William J. Cantrell, 34 ECAB 1233 (1983); Gertrude E. Evans 26 ECAB 195 (1974).

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When I circulated a draft legal memorandum criticizing DFEC's policy of avoiding impartial medical examinations, Mr. Mankin told me that this sort of research was not what I was hired to do. He also questioned whether I was neglecting my assigned duties to do this legal research. I interpreted this as a veiled threat to stop criticizing DFEC policy. As discussed below, Mr. Mankin has also interfered with the integrity of the hearings process.

Section 8124(b)(1)(*101) of the FECA grants an injured employee, dissatisfied with denial of his or her claim, the right to a hearing before a representative of the Secretary of Labor. This authority has been delegated by regulation from the Secretary, through the Assistant Secretary of Labor for Employment Standards, to the Director, OWCP. The Director, OWCP has delegated the day-to-day administration of the FECA to the Director, DFEC and has delegated the hearing responsibilities to Hearing Representatives who hold § 8124(b)(1) hearings on behalf of the Director, OWCP. However, organizationally, the Branch of Hearings and Review is located in DFEC. There is an obvious conflict of interest in this arrangement.

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*101 [A] Claimant for compensation not satisfied with a decision of the Secretary is entitled... on request made within 30 days after the date of the issuance of the decision, to a hearing on his claim before a representative of the Secretary." 5 U.S.C. § 8124(b)(1).

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Because of this arrangement, Director, DFEC Markey routinely violates the integrity of the appeals process. As the top official involved with the day-to-day administration of the FECA he has a vested interest in upholding the decisions of the District Offices under his authority and direction. These offices carry out the policies that Director Markey has established and their successful performance is measured in part by how often their decisions are overturned.

Director Markey routinely reviews the decisions of Hearing Representatives. This is a clear violation of the independence of the hearing process since Hearing Representatives are delegees of the Director, OWCP. Director Markey directly interferes with the rendering of fair decisions in favor of injured employees. He does this by trying to intimidate Hearing Representatives into rewriting their decisions and, when this is unsuccessful, actually overturning the decisions. When Director Markey cannot intimidate Hearing Representatives into rewriting their decisions he has them rewritten. I have received reports that hearing decisions are being rewritten, without the knowledge of Hearing Representatives, and sent out over the signature of the Hearing Representative. The majority of these decisions are in favor of the injured employee since those are the only decisions that Director Markey and members of his staff closely scrutinize.

In addition to interfering with the issuance of fair decisions, Director Markey also reverses decisions in favor of injured employees which have been issued. He does this by abusing the authority granted to the Director, OWCP under § 8128(a) of the FECA. The Employees' Compensation Appeals Board (ECAB) has criticized this practice of overturning hearing decisions.

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Section 8128(a) of the FECA authorizes the Secretary of Labor, at any time, to review an award for or against the payment of compensation and revise the award. This authority has been delegated by the Secretary to the Director, OWCP, by regulation. It is readily apparent to any fair-minded individual that is inappropriate for Director Markey, as the head of DFEC, to set aside decisions of Hearing Representatives, which go against DFEC. These Hearing Representatives hold hearings as delegees of the Director, OWCP. To interfere with these decisions, which are meant to be de novo decisions, destroys the fairness and the integrity of the hearing process.

Director Markey interferes with the fairness of the hearing process with the complicity of the Deputy Director, OWCP Hallmark, and members of Hallmark's staff. The following is an illustrative example. Director Markey was dissatisfied with the decision of a Hearing Representative in a particular case. Mindful of the fact that the ECAB has criticized efforts to interfere with the hearing process, (*102) Director Markey, or someone at his direction, had the hearing representative's decision set aside under § 8128(a) and the injured employee was told that his only appeal right was for another hearing.

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*102 "As much as the Office, or the employing establishment, may disagree with the hearing representative's judgment, the Office may not simply impose its own interpretation of the evidence without regard to the hearing representative's review. To do so compromises the integrity of the appeals process." Annie R. Luckett, Docket No. 94-4 (1995).

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This is plainly illegal, since an injured employee, dissatisfied with a decision, has the right to reconsideration ofthe decision or the right to appeal to the ECAB.(*103) When the Hearing Representative assigned to hold the second hearing objected to this illegal procedure, Mr. Hallmark's personal assistant, Mr. Dennis Mankin, inappropriately badgered the Hearing Representative into scheduling the hearing.

Mr. Duncan, the Assistant Chief of Hearings and Review, also interferes with the integrity of the hearings process. Mr. Duncan is blatantly anti-Claimant. He regularly reads letters from case files out loud and laughs about the Claimants. Mr. Duncan is also prejudiced against some attorneys who represent injured employees. He tried to force me to rewrite a hearing decision because he claimed "this particular physician sees all of this attorney's Claimants and routinely provides a higher percentage of impairment." I resisted this attempt on the grounds that relying on how a physician ruled in other cases was prejudice, i.e., an unfavorable opinion formed before the fact. I also wrote a memorandum complaining about this prejudice stating

I disagree with the implied assumption of Mr. Duncan, i.e., simply because the Claimant's physician routinely provides higher impairment ratings, his opinion has diminished weight. It is readily apparent to me that this District Office, as well as most other District Offices, have preferred physicians to whom they refer Claimants knowing that the physician will provide a report supporting a reduction or denial of compensation.

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*103 See 20 C.F.R. § 10.130: "A copy of the decision, together with information as to the right to ahearing, to a reconsideration, and to an appeal to the Employees' Compensation Appeals Board, shall be mailed to the Claimant's last know address."

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It is also apparent that this District Office, as well as most others, use these physicians in tandem as second opinion examiners and referee physicians. I note that the remand rate from Hearings and Review is at least 38 percent. This means that this District Office, as well as most routinely relies on medical evidence which underestimates the Claimant's true disability. Should we also apply the criterion advocated by Mr. Duncan to the reports of these physicians? I believe that to use this criterion to evaluate only the reports of Claimants' physicians would represent one more example of the anti-Claimant bias which so permeates DFEC.

At least one Hearing Representative has publicly stated that "85% percent of compensation claims are fraudulent." This Hearing Representative also stated that all stress cases are phony. Regional Director Kenneth Hamlet publicly threatened to deny an injured employee's claim again and again if she continued to contact her elected representative to exercise her constitutional right to petition the government for redress of her grievances. As noted above, when confronted with the data showing a consistent remand rate of 45%, a senior OWCP official attempted to minimize the significance of this shortcoming by stating that this involved very few cases out of the total number of injuries reported.

These individuals and incidents are reflective of the arrogance insensitivity which permeates all of OWCP and DFEC. Why are such blatantly anti-Claimant individuals permitted to work at the highest levels of OWCP and DFEC in direct violation of the Congressional mandate that Federal employees be treated in a fair and equitable manner?

Burden of Proof or Insurmountable Barrier?

A Claimant [for FECA benefits] has the burden of establishing by the weight of reliable, probative and substantial evidence that the claimed condition and the disability, if any, was caused, aggravated, or adversely affected by the claimant's Federal employment. As a part of this burden, the claimant must specify the employment incident or the factors or conditions of employment to which the injury, disease or disability is attributed, and must submit rationalized medical opinion evidence, based upon a complete and accurate factual and medical background, showing causal relationship between the claimed condition and the Federal employment. (*104)

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*104 20 C.F.R. § 10.110(a).

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What do the terms "reliable, probative and substantial evidence" and "rationalized medical opinion evidence" mean?

A workers compensation act is remedial legislation and evidence is to be interpreted in a manner to effectuate its purpose. For example, factual evidence is interpreted using the so-called "true doubt rule," i.e., giving the benefit of the doubt to the injured employee. "Giving the benefit of the doubt is the resolution in the Claimant's favor of a conflict in evidence when the evidence truly supports two opposing conclusions with equal force."(*105) This means "[g]iven two sets of conflicting testimony of equal probative value, the examiner should find the facts to be those which give the benefit of the doubt, as to which is the more accurate account, to the Claimant."(*106)

Similarly, medical evidence need not meet the most stringent standard of proof. The medical opinion of a physician supporting causal relationship does not have to reduce the cause or etiology of a disease or condition to an absolute medical certainty.(*107)

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*105 Federal (FECA) Procedure Manual, ch. 2-0809.3c (1984).

*106 FECA PM ch. 2-0809.10d(3) (1984). While the true doubt rule has been found inapplicable to two other workers' compensation statutes administered by OWCP, i.e., Maher Terminals, Inc. V. Director, OWCP, 992 F.2d 1227 (3d Cir. 1993)(Longshore and Harbor Workers' Compensation Act); Greenwich Collieries v. Director, OWCP, 990 F.2d 730 (3d Cir. 1993)( Black Lung Benefits Act), these decisions were based upon the fact that proceedings under those Acts are governed by § 554 of the Administrative Procedure Act (dealing with adjudications). FECA proceedings are not governed by § 554 of the APA, see 5 U.S.C. § 8124(b)(2).

*107 See Kenneth J. Deerman, 34 ECAB 641 (1983).

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