The current regulations permit postponement of hearing for good cause. However, the proposed regulations state:

Once the oral hearing is scheduled and OWCP has mailed appropriate written notice to the Claimant, the oral hearing cannot be postponed at the Claimant's request for any reason unless the hearing representative can reschedule the hearing on the same docket (that is, during the same hearing trip).

The existing law permits the Secretary to make a decision, solely on written evidence and reports, and does not provide a forum for an aggrieved Claimant to present evidence. This bill gives the Claimant the right to request a hearing on his claim before a representative of the Secretary.

The hearing process is informal, and the Secretary is not bound by the rules of evidence or the Administrative Procedure Act. The purpose of this amendment is to give the Claimant the opportunity to be heard and support his claim by evidence.(*179)

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     Furthermore, the termination procedures, which grant an injured employee only 30 days to respond, appear constitutionally infirm. It is well-established that compensation benefits are a property right protected by the due process provisions of the fifth amendment. The Supreme Court has declared that it would look at three factors to decide what due process requires in a given situation:

For FECA recipients, there is a great risk of erroneous deprivation. As noted above, in Table 4, the average remand rate has consistently been 45%. In addition, 27% of Claimant's who request a hearing fail to obtain one for procedural reasons. In addition, the proposed regulation would eliminate postponements, in favor of written record reviews, which will increase the numbers of Claimants who are deprived of an oral hearing. All these factors suggest that providing injured employees with an inflexible 30 day period to respond to a pre-termination notice is a denial of due process,

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     All letters sent to the Department regarding a specific program are referred to that program to draft a response. For example, letters sent to Secretary of Labor, which complain about these abuses, are referred to OWCP and DFEC to prepare a response. Often these responses are less than candid and no one in the Department verifies their accuracy. Even letters to the President, concerning OWCP abuses, are answered by OWCP personnel. In most cases, these replies are drafted by the same individual about whom the complaint is made. The Department's Inspector General also receives complaints about the program and includes unverified input OWCP in its reply.

     The Department's Inspector General has a less than objective relationship with OWCP officials. In written testimony presented at a September 30, oversight hearing before the House Subcommittee on Workforce Protections, Inspector General Masten candidly admitted

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I question whether the Department's Inspector General has the requisite impartiality and commitment to investigate the serious abuses of Claimants' rights which DFEC perpetrates.

     For example, at the request of the Manager, Injury Compensation, U.S. Postal Service and the Director, OWCP, the Postal Inspection Service and the Department's OIG jointly conducted a review of DFEC's administration of the Act with respect to United States Postal Service (USPS) employees.(*181) The executive summary of this report noted:

Communications 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 Act were not consistently brought to the attention of OWCP managers and/or referred for investigation when appropriate. As a result, improper USPS practices have not been addressed in some instances through timely OWCP management actions and statutory penalties have not regularly been invoked, when appropriate, to protect employees' rights under the Act.(*182)

The OIG's Report made the following recommendation to the Deputy Assistant Secretary for Workers' Compensation: (*183)

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However, the USPS continues to hinder injured employees from receiving their just compensation.. As noted above, the San Antonio Post Office has injured employeesfile an improper notice of injury. DFEC officials know of these abuses and have done nothing about them. The OIG has failed to monitor DFEC to insure that improper USPS practices have [ ] been addressed management actions and statutory penalties have appropriate, to protect employees' rights under the Act."

     The March 1998 issue of the National Council of Field Labor Locals' newsletter the Courier contained an article titled "OWCP: DOL's Own Sweatshop." This article commented on the terrible working conditions in DFEC District Offices noting:

Regardless of location, OWCP workers' complaints have a familiar ring of hopelessness and resignation. Claims Examiners face impossible backlogs. Offices are crammed with paper and cramped together.

The May 1998 Courier contained letters from Claims Examiners noting

What a sham the "DOL Model Workplace" is. Isn't it amazing that DOL, the agency that penalizes the private sector for abusing their employees, allows the abuse of their own employees to go unchecked. What hypocrisy!

and

Our union needs to request a congressional investigation of OWCP nationwide in order to expose that the DOL model workplace is nothing but a lie. Not only are workers overwhelmed with the volume of work ... we deal with racism and sexism, preferential management practices, unfair labor practices, incompetency of the managers ... intolerable and hostile working conditions, the "good ole boy network," the manipulation of data used by management to report to Congress, a program running rampant with abuse of benefits, etc... This is not the way the streamlined and improved federal government is supposed to work.

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What is more, not only do OWCP and DFEC managers create abusive working conditions, they also abuse their employees who sustain work-related injuries:

     All compensation cases for DOL employees are handled by the Kansas City District Office. This Office recently established a special unit to handle claims from DFEC employees. These employees report that their claims are not being treated in the same manner as cases from non-DFEC employees.

Enforce Section 19 of OSHA

     Compensation costs are a direct result of injuries sustained. Reducing the number of injuries will inevitably result in lowering compensation costs. Section 19 of the Occupational Safety and Health Act states, in relevant part:

(a) It shall be the responsibility of the head off each Federal agency to establish and maintain an effective and comprehensive occupational safety and health program which is consistent with the standards promulgated under section 6. The head of each agency shall (after consultation with representatives of employees thereof)

(1) provide safe and healthful places and conditions of employment, consistent with the standards set under section 6;

(2) acquire, maintain, and require the use of safety equipment, personal protective equipment, and devices reasonably necessary to protect employees;

     The Federal government is not a model employer. In fact, the Federal workplace is dangerous. Rather than focusing attention on efforts to inhibit claims and to reduce or terminate compensation benefits, employing agencies should concentrate on making their workplaces less dangerous. This is something all agencies can begin immediately and not wait for DFEC action.

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