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payment of "COP" unless we submit a request to them controverting it. The only known exceptions would be those cases where the employees would file other claims involving the same alleged injury and OWCP ruled that there was no injury. However, it should be noted here that, at that point in the process, the" COP" has already been paid.

Mr. Gaydos. You make many statements about flaws in the procedure for hearing loss claims and awards. How would you suggest revising the procedures?

Mr. Smith. I believe the regulations, and governing statutes as necessary, covering compensation for hearing loss should be revised as follows:

(1) Use the American Academy of Ophthalmology and Otorhinolaryngology formula for determining the compensable degree of hearing loss, which is used by state compensation boards for application in the private sector and by the Veterans Administration and possibly other federal agencies not subject to the same program as we are. This involves the use of lower frequency ranges as the hearing-loss measurement guide than those adopted and currently used by OWCP.

(2) Provide for reduction in the compensation formula, as applicable, to compensate for physiological changes in hearing that normally occur due to the aging process (Presbycusis).

(3) Provide for better evaluation, detection, and reduction in awards, or denial in full if appropriate, in cases of congenital hearing loss, cases in which there is obvious pathology such as Otosclerosis, and cases in which the loss is unilateral, that is, monaural hearing loss. It is understood that seldom is monaural hearing loss attributable to work-noise levels.

(4) Provide for authority for the employing agency's right to conduct audiometric examinations also; full consideration of the agency's resulting data and evaluation by OWCP; and for the same appeal rights for the employing agency as now exist for the employees.

Mr. Gaydos. Do you feel the employee should only be paid for the amount of loss he sustains while employed?

Mr. Smith. I firmly believe that it is improper and unjustified for the employing agency, and in turn the taxpayer, to be held financially liable for a hearing loss suffered by an employee prior to being employed by the agency. In this respect, I firmly believe than an employee who seeks and accepts employment with a pre-existing hearing or other physical impairment must assume at least some responsibility for aggravation of or continuing deterioration in such condition.

Mr. Gaydos. What if an employee has a loss of hearing which does not impair his functioning when he is hired, but because of the additional loss he sustains

after he is employed, he crosses the line between minor loss and serious loss? Should he be compensated for the entire loss, or only for what he sustained as your employee?

Mr. Smith. I recognize that this involves a very complex side of the question
that may not be adequately addressed by a simply stated position that the
agency should be liable only for that portion of loss occurring due to our
employment of the person. If the loss sustained after being employed by us
was due to such employment, and the loss puts him over the threshold where
he is totally disabled for employment in his regular occupation or equivalent
pay level because of that condition, I agree that he is entitled to some
benefits. In that case, and as I interpret the statute and OWCP's regulations,
the employee would be entitled to and receive injury compensation payments
on a continuing basis, separate and distinct from a "schedule" award for
hearing loss like the schedule award for loss of a member of the body such as
an eye or hand. I do not question those benefits. Those continuing payments,

however, are based on the ratio of his loss of wage-earning capacity.
Similarly, I believe that a "schedule" award formula in such cases which
would provide for some reduction based on prior hearing loss would be more
proper and equitable from the agency and taxpayer standpoint.

ADDITIONAL QUESTIONS AND ANSWERS OF LARRY HACKLER

Mr. Gaydos. You state that your office investigates all "COP" claims and will take "corrective action" when necessary? What would this entail?

Mr. Hackler. Corrective action in these cases means action taken to prevent recurrence of a similar injury. This may range from a simple employee indoctrination to a design or procedure change. If our investigation reveals that an employee is malingering, this information is given to the compensation clerk to be used for possible controversion.

Mr. Gaydos. You indicate that private physicians, who are not knowledgeable of the variety of positions avilable to an injured employee, frequently judge the employee incapable of returning to work at all. How would you address this problem, short of indoctrinating all area physicians in the shipyard operations?

Mr. Hackler. Presently, we send a letter [enclosure (1)] to the employees' physician along with his authorization for medical treatment, CA-16. would alert the physician of the shipyard's position.

This

When an employee is under the care of his private physician and is not confined to bed, the shipyard may request the employee to report to the clinic for reevaluation. If he is found fit for duty, with medical restrictions, the shipyard's medical officer will obtain a medical release from the employee's physician, [enclosure (2)]. If the employee's physician continues to excuse the employee, the shipyard shall controvert his claim based on conflict of medical evidence.

Mr. Gaydos. You suggest that approximately 12% of all "COP" claims in 1976 were questionable. What measures would you suggest taking to control such abuses of the system?

Mr. Hackler. In addendum to my statement, my second recommendation to clarify the definition of a traumatic injury so that employees with known arthritic conditions and degenerative discs do not qualify for "COP" would greatly control malingerers. It is unreasonable for the shipyard to pay "COP" to employees for this type of injury.

Mr. Gaydos. You refer to the earlier procedure whereby an employee was required to take three days without pay before being eligible for the "COP" program. This has, of course, been eliminated. Do you think reinstating this three-day waiting period will have a significant effect upon an employee who is filing a fraudulent claim?

Mr. Hackler. The three-day waiting period will not stop hard core malingerers. However, the three-day waiting period would create an incentive for employees to return to work with minor injuries rather than going to their private physician for treatment.

Mr. Gaydos. Since you state that employees often have to wait 8 to 10 weeks after the termination of his "COP" before OWCP starts to make payments, how does OWCP get around to ruling that the employing agency should or should not pay the "COP"? Or do you have to question OWCP on each questionable

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Mr. Hackler. Presently, the employee is placed on "COP" on the first working day after his injury. This is automatic and requires no decision from OWCP. When the activity controverts the employee's claim for compensation, he is paid "COP" while waiting for adjudication from OWCP. In many cases, the 45 days have expired before OWCP sustains the controversion. A payroll adjustment would be required in this case to charge the employee to sick or annual leave. Mr. Gaydos. You make many statements about flaws in the procedure for hearing loss claims and awards. How would you suggest revising the procedures?

Mr. Hackler. Each employee filing for a hearing loss should be required to be examined by two otolaryngologists, including two audiograms administered by different audiologists. The results of both examinations should be used in adjudicating the claim. If there is a significant difference, then OWCP should request a third examination by another otolaryngologist of their choice.

Mr. Gaydos. Do you feel the employee should only be paid for the amount of loss he sustains while employed?

Mr. Hackler. Yes. This should be clarified to include the following, "the employee should be paid for the amount of loss he sustains while employed by the federal government."

Mr. Gaydos. What if an employee has a loss of hearing which does not impair his functioning when he is hired, but because of the additional loss he sustains after he is employed, he crosses the line between minor loss and serious loss? Should he be compensated for the entire loss, or only for what he sustained as your employee?

Mr. Hackler. The employee should be paid only for loss of hearing that occurred while he worked as a government employee. This can be easily determined by requiring an audiogram in his pre-employment examination.

Employee:
Check No:

Date of Injury:

DEPARTMENT OF THE NAVY

NORFOLK NAVAL SHIPYARD
PORTSMOUTH, VIRGINIA 237.3

Date

Dear Doctor

The employee listed above is employed in the Norfolk Naval Shipyard and has selected you as his attending physician.

Department of Labor form CA-16 is enclosed which authorizes you to make the necessary examination and/or treatment and to record your findings. You may use this form for billing or enclose your billing on your letterhead as you desire. Please complete this form with your findings and forward to the Employees Services Division, Code 165, Norfolk Naval Shipyard, Portsmouth, Virginia, 23709, within two days when possible. Self addressed envelopes are attached for your convenience.

Based upon receipt of your findings the shipyard will forward additional information to Office of Workers' Compensation Programs in order to support the employee's claim. You may call the compensation branch at 393-3789 to discuss problems that may arise out of the course of the employee's treatment if you have the need.

When employees are partially disabled the shipyard can often find work for them that is not contrary to their cedical restrictions. In such cases it is requested that the employee be referred back to the shipyard dispensary with a copy of his medical restrictions. When compatible work is not available the employee will be sent home and will be compensated for time lost from work according to Department of Labor regulations.

Your cooperation is appreciated.

Sincerely,

Howa

S. A. POWERS

CAPT., MC, USN

SENIOR MEDICAL DEPARTMENT REPRESENTATIV

Enclosure (1)

(personal physician's name and complete address

Dear Dr.

Date:

Re:

(patient's name)

The Norfolk Naval Shipyard, Portsmouth, Virginia, has a program which utilizes personnel who are temporarily unable to perform the full scope of their employment due to injuries or illnesses incurred during employment.

The physicians at the Branch Clinic, located at the shipyard, need interim information to indicate the attending physician's recommendation concerning the patient's work restrictions or limitations. It is requested that information concerning (patient's name) SSN: regarding the work restrictions and limitations that you feel are necessary to enable him to return to partial employment, be forwarded-as soon as possible.

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It is also requested that the physicians be advised of the date that (patient's mang) may return to full work status.

Sincerely,

Mr. GAYDOS. The committee will recess subject to call of the chair. [Whereupon, at 1:30 p.m., the subcommittee was adjourned to reconvene at the call of the Chair.]

[Materials submitted for inclusion in the record follow:]

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From:
To:

Via:

Subj:

Commander, Norfolk Naval Shipyard

Mr. James M. Stephens, Assistant Minority Labor Counsel
Committee on Education and Labor

1040 Longworth House Bldg.

Washington, D. C. 20515

Mr. Paul Dwyer, Majority Counsel for

Subcommittee on Compensation, Health, and Safety
616-617 House Office Bldg. Annex

Washington, D. C. 20515

Commander, Naval Sea Systems Command (0730)

Employees Receiving Compensation Due to Injuries; copy of

Encl: (1) Employees Receiving Compensation Due to Injuries
From 1 April 1977 to 30 June 1977

1. As requested at the oversight hearings on FECA on Tuesday,
19 July 1977, enclosure (1) is forwarded.

4. R. Etchising

FRANK L. ETCHISON, JR.

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