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.

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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.

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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.

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

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     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?

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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)

The opinion of a physician supporting causal relationship must be one of reasonable medical certainty that the condition for which compensation is claimed is causally related to federal employment and such relationship must be supported with affirmative evidence, explained by medical rationale and be based upon a complete and accurate medical and factual background of the claimant.(*108)

     Burden of proof represents the necessity or duty of affirmatively proving a fact or facts in dispute; it is the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the adjudicator.(*109) In the law of evidence the term "burden of proof' encompasses two different concepts, i.e.: the "burden of persuasion" which does not shift and requires the moving party to establish all the elements of his case; and, the "burden of going forth with the evidence" which shifts between the parties as a case proceeds.

employing establishment or other government source. (*113) DFEC has an obligation to see that justice is done.(*114) The ECAB has stated that once DFEC has begun investigation of a claim, it must pursue the evidence as far as reasonably possible,(*115) particularly when such evidence is in the possession of the government employing establishment and is, therefore, more readily accessible to the Office.(*116)

     The question for consideration is what level of proof is necessary to sustain a Claimant's burden of persuasion? Is it preponderance of the evidence, clear and convincing evidence or beyond a reasonable doubt?

     Preponderance of evidence is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which, as a whole, shows that the fact sought to be proven is more probable than not.(*117)

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     The Employees' Compensation Appeals Board has pointed out the following well-established principle concerning the interpretation of evidence:

It appears, therefore, that a Claimant must meet his or her burden of proof by a preponderance of the evidence.(*121)

Manipulation of the Factual Evidence

     Although DFEC continually states that claims processing under the FECA is nonadversarial, the facts suggest otherwise. DFEC acts in collusion with employing agencies to reduce or deny compensation.

     For example, Director, DFEC Markey has been informed that the San Antonio, Texas Post Office is having injured employees file a disclaimer which states: "I do not desire to file a form CA-1 [notice of injury] or have medical treatment at this time for the injury sustained on. " This disclaimer is not on a form approved by DFEC nor does it contain language which would protect an injured employee's right to compensation and continuation of pay. In fact Director Markey was informed that this use of this improper form caused continuation of pay to be denied. Furthermore, this disclaimer appears to be a violation of 18 U.S.C. § 1922 which makes it a criminal offense to withhold a report of injury.(122) Apparently DFEC has taken no action to address this clear violation despite a 1995 report from the Department of Labor's Inspector General noting that:

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     I brought to Director Markey's attention a case in which the Philadelphia Post Office had filed a false statement in an effort to prevent an eligible Claimant from receiving benefits. Director Markey personally reviewed the case and acknowledged that it had been done. However, he cautioned me, in the presence of my supervisor that, "for the good of your career you should never state this in a public forum or in any of your decisions." I told him that him that he was seriously mistaken if he thought that it was a secret that employing agencies are submitting false information. Both Director Markey and my supervisor laughed. This is evidence of clear collusion between DFEC and the U.S. Postal Service. There is other evidence of this collusion.

     The Postal Inspection Service aggressively investigates cases of injured employees receiving long-term disability benefits. These investigations seek to uncover evidence of fraud. However, despite the significant resources devoted to this effort, the Postal Inspection Service has actually uncovered very little fraud. At a March 30, 1998, oversight hearing before the House Workforce Protections Subcommittee (Chair Ballenger, R., NC), representatives from the U.S. Postal Inspection Service testified that they had successfully prosecuted only 5 cases of fraud, dealing with receipt of FECA benefits, in the prior year.(*124)

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     Nevertheless, the Postal Inspection Service relentlessly investigates FECA Claimants. In the course of these investigations, it prepares detailed reports, many of which contain unsupported circumstantial evidence and conclusory memorandums. Despite the fact that very few of these reports lead to convictions, the Postal Inspection Service submits them to DFEC in an effort to deny claims. District Offices accept these investigation reports at face value and use them to reduce or terminate benefits.(*125) However District Offices will not accept investigative reports compiled in connection with other proceedings, e.g., complaints to the Equal Employment Opportunity Commission, where there has been no final decision. It is clearly inequitable to accept Postal Inspection Service investigative reports, in cases where there has been no final decision, and not accept EEOC investigative reports.

     Perhaps the most devastating area in which manipulation of the factual evidence occurs is in preparation of the Statement of Accepted Facts (SOAF). According to the DFEC Procedure Manual (PM) "[t]he SOAF is one of the most important documents a Claims Examiner (CE) prepares. Because the outcome of a claim may depend on its completeness and accuracy, the SOAF must clearly and fairly address the relevant information." (*126) The Procedure Manual further provides

Before the Procedure Manual chapter on Statements of Accepted Facts was revised in 1995, it contained the following explicit instructions on how to apply the "true doubt" rule:

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. Such instances are rare, and the examiner may find that further development of the facts or closer scrutiny of the evidence allows a clear conclusion to be drawn. An examiner should not be reluctant, however, to grant the benefit of a doubt to the Claimant, since doing so is entirely consistent with the underlying purpose of compensation law.(*128)

     However, these instruction were eliminated in 1995 when this chapter of the Procedure Manual was revised. FECA Transmittal No. 95-27 (June 1, 1995) which disseminated the revision explained the changes in the following terms:  "[the text of this chapter has been streamlined, and references to other parts of the PM and to ECAB decisions have been added or updated." The term "streamlineed" does not convey the true extent of how this important chapter was substantively changed.

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     As noted above, in commenting on the development of the evidence, the Employees' Compensation Appeals Board (ECAB) has stated that proceedings under the FECA are not adversarial in nature and that DFEC is not a disinterested arbiter.(*129) While a Claimant has the ultimate burden of persuasion, DFEC shares the responsibility in going forward with the evidence, particularly when such evidence is of the character normally obtained from the employing establishment or other government source. DFEC has an obligation to see that justice is done. The ECAB has also stated that once DFEC has begun investigation of a claim, it must pursue the evidence as far as reasonably possible.

     In addition to eliminating any discussion of the "true doubt" rule, the revised chapter has also de-emphasized the Claims Examiner's responsibility to assist in the development of the evidence and the obligation to see that justice is done. Prior to its revision the SOAF chapter contained the following explicit instructions regarding the responsibilities of the Claims Examiner in developing and evaluating the factual evidence:

(2)   In the absence of evidence to the contrary, the statements of the Claimant are to be accepted as factual. The fact that the Claimant is an interested party who stands to benefit from the acceptance of the claim may not be used to discredit his/her statements. Credible contrary evidence may consist of testimony from others who are in a position to dispute the facts as presented by the Claimant or by internal logical inconsistencies in the Claimant's statements when compared with the known circumstances of a claim.

(3) Given 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.(*131)

     The revisions to the SOAF chapter have allowed this document to change from a written summary of the evidence into a biased evaluation of the facts. This effort is directly contrary to established case law and is another example of how DFEC does not treat Claimants in a fair and equitable manner.

     DFEC's response to requests from Claimant's and their attorney to review the SOAF and questions being sent to the second opinion physician (SECOP) is revealing. In an October 21, 1997, letter, Director, DFEC Markey wrote:

the [SECOP] procedure does not contemplate that a copy of the Statement of Accepted Facts or questions asked of a second opinion physician be provided to a Claimant or representative as a matter of course. Such a provision may result in needless questions, confusion and sometimes disputes, thereby slowing the adjudication process and delaying, in some cases, timely payment of due compensation.

It appears to be a distinction without a difference to distinguish the period before the preparation of the SOAF from the period after its preparation, for purposes of obtaining Claimant input. If providing Claimants with an opportunity to review the SOAF would be helpful in "ensuring that the facts are known to the parties . . .[and] refining the issues for the CE," what is the objection? Giving Claimants this opportunity is especially important since "[t]he SOAF is one of the most important documents a Claims Examiner (CE) prepares.'

     However, Director Markey states that doing so may result in needless questions, confusion and sometimes disputes." What questions are needless when their purpose is to clarify the factual evidence? What disputes are needless when their purpose is to insure that the SOAF is accurate and complete? Because the outcome of a claim may depend on its completeness and accuracy, the SOAF must clearly and fairly address the relevant information." (*134) Fairness and equity demand that every effort be employed to guarantee this.

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     Director Markey also alleges that legitimate questions and disputes will slow the adjudication process and delay the timely payment of compensation. This concern is strange coming from a program which routinely engages in practices which slow the adjudication process and delay the timely payment of benefits.

     The flawed procedures employed in developing SOAFs also have significant repercussions on development of the medical evidence since

[t]he SOAF provides a frame of reference for the physician reviewing the medical evidence and/or examining the Claimant. It allows the physician to place the medical questions posed in the larger context of the mechanism of injury, the requirements of the Claimant's job or the conditions which prevailed in the workplace. It may also provide the physician with a chronology of events after the injury.(*135)

Manipulation of the Medical Evidence

     DFEC's handling of medical evidence is unfair and inequitable. It weighs the medical evidence to determine which opinion has the most probative value. However, as noted above, DFEC routinely discounts medical evidence submitted by Claimants since it does not establish causal relationship beyond a reasonable doubt.

     DFEC further diminishes the Claimant's medical evidence by resorting to paid consultants (second opinion physicians or SECOPS) who produce medical reports which include opinions requested by DFEC solely to deny claims. These SECOPs base their opinions on flawed SOAFs and leading questions from Claims Examiners. Although the Act requires DFEC to obtain a third opinion when there is any disagreement between the SECOP and the Claimant's physician, DFEC has characterized this as "a time-consuming process which is not always necessary." It avoids its statutory obligation by investing the SECOP's opinion with exaggerated weight and, through spurious reasoning, by diminishing the weight of the Claimant's medical evidence. DFEC has adopted its questionable policy by ignoring a clear statutory mandate

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     As presently written, § 8124 of the Federal Employees' Compensation Act (*136) states: "[i]f there is disagreement between the physician making the examination for the United States and the physician of the employee, the Secretary shall appoint a third physician who shall make an examination.

     However, when passed in 1916,(*137) § 22 of the Federal Employees' Compensation Act read: "[t]hat in case of any disagreement between the physician making an examination on the part of the United States and the employee's physician the commission shall appoint a third physician, duly qualified, who shall make an examination." (*138)

     This language remained undisturbed until 1966, when Title 5, United States Code, was re-enacted "codifying the general and permanent laws relating to the organization of the Government of the United States and to its civilian Officers and employees."(*139) As recodified, § 22 became part of 5 U.S.C. § 8123(a). It then read:

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Section 7, of Pub. L. 89-554, stated:

(a) The legislative purpose in enacting sections 1-6 of this Act is to restate, without substantive change the laws replaced by those sections on the effective date of this Act. .

(e) An inference of a legislative construction is not to be drawn by reason of the location in the United States Code of a provision enacted by this Act of by reason of the caption or catchline thereof. (*140)