With respect to controversions, the survey data
gathered so far shows that OWCP is upholding the
agency controversion in about 20% of the COP cases.
The agencies often indicate their controversion
but do not furnish substantive information to
support their action. Further information on
these surveys is reflected in the answer to
question 46.
Could you provide statistics on the number of
instances where the Secretary of Labor has requested
an independent physical examination of a claimant
by a medical officer of the United States, or by
an approved physician as provided for under Title 5,
Section 8123, U.S.C.? Also, of these cases, in how
many instances was a third physician appointed to
make an independent medical exam to settle a disagree-
ment between the physican appointed by the claimant
and the physician appointed by the Secretary? It
has been suggested that the employing agencies be
given the right to request a physical exam. Under
what conditions would you consider this to be
advisable?
Does the Labor Department favor the use of a "fitness
for duty" exam by agencies to determine if a person
is qualified to return to work? If so, what steps
has the Labor Department taken to work with the
agencies in implementing this exam in needed
instances?
A: All compensation cases require medical support
before claims are paid. No statistics are kept on
the number of specific referrals made by the office.
In all long term disability cases, a medical report
is required at least yearly. In all cases where a
conflict of medical opinion arises, a third physician
is asked to resolve the conflict, but again no
statistics are kept on the number of cases in which
this occurs.
If agencies had authority under the FECA to direct any
kind of physical evaluation, this could result in a
situation that would become difficult to administer.
Procedures to accommodate situations where the agency's
physician and the employees' treating physician are not
in agreement over the employees' medical condition, must
be clearly defined. Careful considerations must be
given to the problems encountered and the benefits
expected by giving agencies authority to direct a
physical examination. As you know agencies now have
the authority to direct "fitness for duty" examination
under CSC authority.
Agency witnesses and the General Accounting Office have suggested that employing agencies be given formal appeal rights to controvert such awards. What is your position on this?
The major concern with providing employing agencies
formal appeal rights to controvert awards is that
it would undermine the nonadversarial nature of the
FECA claims process. The nonadversarial nature
of the FECA program is reflected in the regulations
(C.F.R. 10.140) governing the operations of the
program.
Under existing law, agencies already have substantial
responsibilities for the processing of claims. The
FECA regulations expressly invite agencies to submit
affidavits and other evidence relating to claims
filed by their employees, as well as to request the
DOL to schedule medical examinations in suspect
claims. The implementing regulations also explicitly
require FECA district offices to take into account
employing agency views and reconcile those of the
claimant with the perceptions of the agency.
There are a number of program initiatives underway
to give agencies even more responsibility in claims
related matters. Technical assistance seminars are
being provided to acquaint agency officials with the
requirements of the Act and to encourage them to
develop systems which will enable them to track
reports of injuries, the flow of FECA claims, and
ensure that the proper evidence is submitted on a
timely basis. Additionally, a comprehensive train-
ing program on FECA procedures and requirements has
been developed for agency personnel.
These actions, along with the recent steps taken to improve the administration of the FECA program, and increased resources, should ensure that both the interests of the claimant and the government are protected.
Q: GAO provided us with statistics which show that
two times out of three, cases which are denied by
the district offices are reversed by the hearings
and review branch, and in nine specific cases
which GAO reviewed, the branch had not adhered
to OWCP criteria in granting compensation awards.
Could you comment?
The GAO report stated "... that over a 6-year
period, the Branch reversed 41 percent of the
district office decisions, but that there has been
a steady decline in the percentage of reversals--
from 54 percent in fiscal year 1971 to 30 in fiscal
year 1976." We cannot comment on the statement
that in nine specific cases the Branch did not
adhere to OWCP criteria since we do not know which
nine cases are referred to. However, in the one
example cited by GAO in its report, GAO implied
the Branch accepted that the employee's degenerative
heart disease was job related. The Branch did not;
it accepted that the employee suffered a job related
heart attack that materially aggrevated an under-
lying disease, thereby being compensable.
GAO also testified that they found claims examiners
reluctant to deny questionable claims because, accord-
ing to these examiners, their decisions were usually
reversed on review by the hearings and review branch.
If this is so, it appears that the claims examiners
are not closely attuned to the position of the hear-
ings and review branch. Could you comment on this?
Several initiatives have been undertaken to improve
the quality of decision making by claims examiners,
thereby decreasing the likelihood that a particular
decision will be reversed on review by the hearings
and review branch. Improvements include the provision
of a comprehensive training program for all claims
examiners; updating of the FECA Claims Procedure
Manual; and the establishment of procedures for
complete, on-site accountability reviews of all
district office operations at least once a year.
Q: GAO also found, in its survey, that because of
the push to reduce the backlog, examiners were
processing the easy cases first. Therefore, the
backlog is tending to comprise the more difficult-
to-process cases. What is being done to correct
this situation?
In our training of the claims examiners we emphasize
that cases must be worked on a first in, first out
basis. It is true that, over the past several years,
accelerated workloads and resource limitations resulted
in a critical situation where nearly all systems for
processing, adjudicating, and managing claims failed
to function adequately. As a result, the pending case
inventory rose to a level of approximately 120,000
pending case actions as of April, 1978. However,
the impact of the additional staff resources added
since mid-FY 1978 has resulted in an approximately
20% reduction in the pending case inventory. The
additional resources will result in a further reduction
of the inventory level. Many of the improvements out-
lined in response to question 1 will assist the
claims examiners in processing the difficult cases.
Strict adherence to the performance standards will
also ensure that most claims and payments will be
processed within a reasonable period of time.
Eventually, a two-week "pipeline" of pending cases
should be maintained.
GAO testified that managerial personnel in the district offices are dissatisfied with the quality of personnel assigned to them. How strictly are the qualifications for examiners adhered to when selecting personnel?
ESA has undertaken specific steps to improve the
skills of its FECA line operating personnel. The
training programs, updated and codified systems
and procedures, and strengthened supervision are
resulting in increased productivity and improved
quality of operations. The quality of recent
recruits is certainly equal to that of entry
level personnel government wide. The qualifications
for examiners are specifically defined and, as closely
as possible, adhered to in selecting personnel.
What measures have been taken regarding the monitoring
of the performance of the OWCP employees? Would you
describe in detail what tangible mechanisms, such as
reports, are in use on an ongoing basis? Furthermore,
would you submit examples of reports submitted by each
supervisory, management and administrative level?
What has been the frequency of such actions?
Claims examiners receive two performance ratings
annually. One is an adjective performance rating
wherein the examiners are assigned a summary evalua-
tion of outstanding, satisfactory or unsatisfactory.
This rating is due every March 31.
The other rating is a merit staffing performance
rating which is based on performance requirements
which have been explained and discussed with the
examiners in advance. This rating is established
on the anniversary date of the examiners within-
grade-increase and is due every year thereafter.
Although claims examiners are rated annually, supervisors are encouraged to discuss job performance with all and subordinates throughout the rating year.
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