perez47-53

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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.

While a Claimant for benefits has the ultimate burden of persuasion, it is well established by Employees' Compensation Appeals Board (ECAB) case law that DFEC shares in the burden of going forward with the evidence. Proceedings under the FECA are not adversarial in nature"(*11O) and DFEC is not a disinterested arbiter. While Claimants have the ultimate burden of persuasion to establish entitlement to compensation,(*111) DFEC shares responsibility in the development of the evidence,(*112) particularly when such evidence is of the character normally obtained from the

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*108 See Margaret A. Donnelly, 15 ECAB 40 (1963); Morris Scanlon, 11 ECAB 384 (1960).

*109 Black's Law Dictionary (5th Ed. 1979) at 178.

*110 See e.g., Rebel L. Cantrell, 44 ECAB 660 (1993); John J. Carlone, 41 ECAB 354 (1989); Walter A Fundinger, Jr., 37 ECAB 200 (1985); William J. Cantrell, 34 ECAB 1233 (1983); Michael Gallo, 29ECAB 159 (1978); Gertrude E. Evans, 26 ECAB 195 (1974); Mary A. Barnett (Frederick E.Barnett), 17 ECAB 187 (1965).

*111 20 C.F.R. § 10.110(a).

*112 Elaine K. Kreymborg, 41 ECAB 256 (1989); Dorothy L. Sidwell, 36 ECAB 699 (1985).

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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)

Clear and convincing evidence is that measure of evidence which will produce in the mind of the adjudicator a firm belief or conviction as to the facts alleged. It is an intermediate standard, being more than the preponderance, but not to the level of such certainty as is required by the beyond a reasonable doubt standard of a criminal case.(*118)

Beyond a reasonable doubt is that level of evidence which fully satisfies, and entirely convinces to a moral certainty. It is the level of evidence necessary for a criminal conviction)(*119)

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*113 See Robert A. Redmond, 40 ECAB 796, 800 (1989); Willie James Clark, 39 ECAB 1311, 1319 (1988); Henry Boss, Jr., 39 ECAB 373, 377 (1988); Leon C. Collier, 37 ECAB 378, 379 (1986);Russell Martin Dawson, 32 ECAB 1998, 2004 (1981); Robert M. Brown, 30 ECAB 175, 178 (1978);Ruth A. Hussey, 9 ECAB 292, 295 (1957).

*114 See Gary L. Fowler, 45 ECAB 365, 373 (1994); Isidore J. Gennino, 35 ECAB 442, 448 (1983); William J. Cantrell, 34 ECAB 1233 (1983); Stephen H. Calkins, Jr., 32 ECAB 1406, 1411 (1981);Russell F. Polhemus, 32 ECAB 1066, 1069 (1981); Gertrude E. Evans, 26 ECAB 195, 200 (1974);Mary A. Barnett (Frederick E. Barnett), 17 ECAB 187, 189-90 (1965); Eminiano V. Dela Rosa, 17ECAB 164 (1965); John B. Lance, 13 ECAB 330 (1962); Annie M. Able, 13 ECAB 252 (1962);William N. Saathoff, 8 ECAB 769 (1956); Roy L. Hinckley, Sr., 5 ECAB 197,199-200 (1952); Joel C. Webb, 4 ECAB 79, 84 (1950).

*115 Monroe Fears, 43 ECAB 608, 611 (1992); Leon C. Collier, 37 ECAB 378 (1986).

*116 Debbie J. Hobbs, 43 ECAB 135, 143 (1991); Willie James Clark, 39 ECAB 1311, 1319 (1988).

*117 Black's Law Dictionary (5th Ed. 1979) at 1064.

*118 Id. at 227.

*119 Id. at 147.

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

a compensation award may not be based upon speculation, surmise or conjecture; or stated differently, the award must be based upon evidence, and where an inference, deduction or conclusion is drawn, there must be evidence to support such inference, deduction or conclusion. The evidence required however, is only that necessary to convince the adjudicator that the conclusion drawn is rational, sound and logical. It is not necessary that the evidence be so conclusive as to suggest causal connection beyond all possible doubt in the mind of a medical scientist. (*120)

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

However, DFEC has increased a Claimant's burden of proof by requiring the submission of evidence which meets the beyond a reasonable doubt standard. DFEC routinely discredits the medical evidence submitted by Claimants because the report is not "so conclusive as to suggest causal connection beyond all possible doubt in the mind of a medical scientist." Similarly, DFEC does not apply the "true doubt" rule to factual evidence submitted by Claimants and gives greater weight to the factual statements of employing agencies.

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*120 Ronald L. Wilson, 43 ECAB 271, 275 (1991)(emphasis added). Accord Shirolyn J. Holmes, 39ECAB 938 (1988); Laura Garcia, 32 ECAB 1336 (1981); Sherwood R. McCartney, 9 ECAB 129(1956); Elizabeth Maypother, 5 ECAB 604 (1953).

*121 "That amount of evidence necessary for the plaintiff to win a civil case. It is that degree of proof which is more probable than not." Black's Law Dictionary, (5th ed. 1979) at 1064.

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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:

[c]ommunications indicating that some Postal Service officials may have hindered, delayed or discouraged the filing of compensation claims and notices of traumatic injury/occupational disease in violation of the Federal Employees' Compensation were not consistently . . . referred for investigation when appropriate.(*123)

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*122 See n.185 infra and accompanying discussion.

*123 See n.182 infra and accompanying text.

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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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*124 In the period July 1, 1995, to June 30, 1996, the U. S. Postal Service was billed for approximately 30% of the total benefits paid ($547.1 million of $1.8 billion total). The number of injuries reported in FY96 was 175,052. The number of recipients on the periodic roll in FY96 was 58,329. Using the Postal Service's chargeback percent as a reasonable estimate of it share of these cases means that there were approximately 70,014 Postal Service cases in FY96. Therefore the number of fraud cases successfully prosecuted in 1997 was .007% of the number of U.S. Postal Service cases in FY96

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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

a. The SOAF is the written summary of the CE's findings of facts pertinent to resolving a particular medical issue. Proper identification of the necessary information should result in a complete and accurate statement.

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*125 Hearing Representatives evaluate the credibility of these reports and only accept them when their reliability and probative value have been established. However, Mr. Dennis Mankin tried to order Hearing Representatives to accept these reports without question despite strenuous objections from Hearing Representative.

*126 FECA PM ch. 2-809.2 (1995).

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b. The 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.

c. The SOAF is also the means by which factual findings which are the sole responsibility of the CE, are separated from medical findings and opinions, which are the province of the medical professional. This separation of function will insure that the CE does not inadvertently make medical decisions. Similarly, properly drawn SOAFs should preclude physicians from making their own findings of facts. (*127)

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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*127 FECA PM ch. 2-809.4 (1995)

*128 FECA PM ch. 2-809.3c (1984)(emphasis added).

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