<DOC>
[106th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:62686.wais]
OVERSIGHT OF CUSTOMER SERVICE AT THE OFFICE OF WORKERS' COMPENSATION
PROGRAMS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,
INFORMATION, AND TECHNOLOGY
of the
COMMITTEE ON
GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
MAY 18, 1999
__________
Serial No. 106-87
__________
Printed for the use of the Committee on Government Reform
Available via the World Wide Web: http://www.gpo.gov/congress/house
http://www.house.gov/reform
______
U.S. GOVERNMENT PRINTING OFFICE
62-686 CC WASHINGTON : 2000
COMMITTEE ON GOVERNMENT REFORM
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
CONSTANCE A. MORELLA, Maryland TOM LANTOS, California
CHRISTOPHER SHAYS, Connecticut ROBERT E. WISE, Jr., West Virginia
ILEANA ROS-LEHTINEN, Florida MAJOR R. OWENS, New York
JOHN M. McHUGH, New York EDOLPHUS TOWNS, New York
STEPHEN HORN, California PAUL E. KANJORSKI, Pennsylvania
JOHN L. MICA, Florida PATSY T. MINK, Hawaii
THOMAS M. DAVIS, Virginia CAROLYN B. MALONEY, New York
DAVID M. McINTOSH, Indiana ELEANOR HOLMES NORTON, Washington,
MARK E. SOUDER, Indiana DC
JOE SCARBOROUGH, Florida CHAKA FATTAH, Pennsylvania
STEVEN C. LaTOURETTE, Ohio ELIJAH E. CUMMINGS, Maryland
MARSHALL ``MARK'' SANFORD, South DENNIS J. KUCINICH, Ohio
Carolina ROD R. BLAGOJEVICH, Illinois
BOB BARR, Georgia DANNY K. DAVIS, Illinois
DAN MILLER, Florida JOHN F. TIERNEY, Massachusetts
ASA HUTCHINSON, Arkansas JIM TURNER, Texas
LEE TERRY, Nebraska THOMAS H. ALLEN, Maine
JUDY BIGGERT, Illinois HAROLD E. FORD, Jr., Tennessee
GREG WALDEN, Oregon JANICE D. SCHAKOWSKY, Illinois
DOUG OSE, California ------
PAUL RYAN, Wisconsin BERNARD SANDERS, Vermont
JOHN T. DOOLITTLE, California (Independent)
HELEN CHENOWETH, Idaho
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
David A. Kass, Deputy Counsel and Parliamentarian
Carla J. Martin, Chief Clerk
Phil Schiliro, Minority Staff Director
------
Subcommittee on Government Management, Information, and Technology
STEPHEN HORN, California, Chairman
JUDY BIGGERT, Illinois JIM TURNER, Texas
THOMAS M. DAVIS, Virginia PAUL E. KANJORSKI, Pennsylvania
GREG WALDEN, Oregon MAJOR R. OWENS, New York
DOUG OSE, California PATSY T. MINK, Hawaii
PAUL RYAN, Wisconsin CAROLYN B. MALONEY, New York
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
J. Russell George, Staff Director and Chief Counsel
Bonnie Heald, Director of Communications/Professional Staff Member
Mason Alinger, Clerk
Faith Weiss, Minority Counsel
C O N T E N T S
----------
Page
Hearing held on May 18, 1999..................................... 1
Statement of:
Balen, Beth, administrator, Anchorage Fracture and Orthopedic
Clinic; John Riordan, first vice-president, Council 220,
American Federation of Government Employees; James Linehan,
lawyer, James R. Linehan, P.C.; and Tina Maggio, field
representative, Office of Representative Michael F. Doyle.. 46
Chamberlin, Thomas, former agent of Federal Bureau of
Investigation; Dianne McGuinnes, former employee of Social
Security Administration; and Matthew Fairbanks, Special
Agent/Pilot, Drug Enforcement Agency....................... 8
Dalton, Patricia, Deputy Inspector General, Office of
Inspector General, Department of Labor, accompanied by Amy
Friedlander, Evaluations; and Shelby Hallmark, Deputy
Director, Office of Workers' Compensation Programs,
Department of Labor, accompanied by Sharon Tyler, District
Director, San Francisco Regional Office.................... 221
Letters, statements, et cetera, submitted for the record by:
Balen, Beth, administrator, Anchorage Fracture and Orthopedic
Clinic, prepared statement of.............................. 49
Chamberlin, Thomas, former agent of Federal Bureau of
Investigation:
Letter dated April 26, 1996.............................. 10
Prepared statement of.................................... 18
Dalton, Patricia, Deputy Inspector General, Office of
Inspector General, Department of Labor:
Customer service survey.................................. 340
Prepared statement of.................................... 223
Program performance review............................... 315
Fairbanks, Matthew, Special Agent/Pilot, Drug Enforcement
Agency, prepared statement of.............................. 38
Hallmark, Shelby, Deputy Director, Office of Workers'
Compensation Programs, Department of Labor:
Information concerning budget history.................... 247
Prepared statement of.................................... 235
Horn, Hon. Stephen, a Representative in Congress from the
State of California:
Prepared statement of.................................... 3
Statement of John D. McLellan, Jr........................ 344
Linehan, James, lawyer, James R. Linehan, P.C.:
Additional information concerning a conversation......... 206
Prepared statement of.................................... 172
Maggio, Tina, field representative, Office of Representative
Michael F. Doyle:
Letter dated August 4, 1998.............................. 184
Letter dated October 29, 1998............................ 180
Prepared statement of.................................... 194
McGuinnes, Dianne, former employee of Social Security
Administration:
Transcript of a taped conversation....................... 27
Prepared statement of.................................... 31
Riordan, John, first vice-president, Council 220, American
Federation of Government Employees, prepared statement of.. 165
Turner, Hon. Jim, a Representative in Congress from the State
of Texas, prepared statement of............................ 5
OVERSIGHT OF CUSTOMER SERVICE AT THE OFFICE OF WORKERS' COMPENSATION
PROGRAMS
----------
TUESDAY, MAY 18, 1999
House of Representatives,
Subcommittee on Government Management, Information,
and Technology,
Committee on Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in
room 2154, Rayburn House Office Building, Hon. Stephen Horn
(chairman of the subcommittee) presiding.
Present: Representatives Horn and Biggert.
Staff present: J. Russell George, staff director and chief
counsel; Matthew Ebert, policy advisor; Bonnie Heald, director
of communications/professional staff member; Mason Alinger,
clerk; Faith Weiss, minority counsel; and Earley Green,
minority staff assistant.
Mr. Horn. The Subcommittee on Government Management,
Information, and Technology will come to order. We are here
today to learn how well the Office of Workers' Compensation
Programs at the Department of Labor is treating Federal workers
who are injured on the job.
The Federal Employees Compensation Act authorizes Federal
agencies to compensate Federal employees when their injuries
are sustained on the job. The act was intended to develop a
nonadversarial arrangement whereby Federal employees would be
compensated in a fair and equitable way while reducing the
Federal Government's exposure to tort liability.
Concerned by allegations that the process is unfair and
structurally flawed, the subcommittee held a hearing in Long
Beach, CA, on July 6 of last year to evaluate and discuss these
issues. The complaints involved delays in medical
authorizations, payments for medical treatment and the lack of
judicial recourse. Some of these delays were so serious that
one injured worker testified that the waiting period left him
financially devastated and nearly cost him his life.
What was especially evident in all of the testimony were
concerns with the customer service issues at the Office of
Workers' Compensation Programs [OWCP]. It was alleged that it
is very difficult for a claimant to make contact with the
office and that the response rate is very poor. Testimony
suggested that when a claims examiner has been reached, the
Federal worker receives little or no guidance. It has been
suggested time and time again that Federal workers have to turn
to lawyers, unions, and congressional offices to assist them in
getting a simple response.
Union members, congressional offices, lawyers and
individuals who are entrenched in the claims process continue
to contact the subcommittee about their negative experiences
with the Office of Workers' Compensation Programs, the agency
responsible for administering claims for injured workers. Some
of these people will not be able to testify today, but will
submit statements for the record.
Senator Slade Gorton of Washington has expressed his
frustration in assisting constituents who are struggling with
their workers' compensation claims.
Mr. Gorton will be submitting a statement for the record,
as will Mr. John D. McLellan, Jr., a former Director of the
Federal Employees' Compensation Programs, a division of the
Office of Workers' Compensation Programs. After retiring in
1985, Mr. McClellan, a lawyer, attempted for 8 years to assist
Federal injured workers through the FECA appeals process. His
testimony is especially revealing, because of his close
contacts with the OWCP and frustrations in attempting to guide
Federal injured workers through the process. Mr. McClellan's
statement will also be submitted for the record.
Today, the subcommittee will examine whether the Office of
Workers' Compensation Programs is performing its mission of
administering the Federal Employees' Compensation Act in a
fair, timely, and efficient manner. The subcommittee will also
examine how well the agency is doing in developing top-of-the-
line customer service. In addition, we will examine the
effectiveness and accuracy of the agency's customer service
survey.
The first panel will include former Federal employees who
have been injured on the job. These witnesses will describe the
nature of their experiences throughout the claims process and
the obstacles they have confronted.
The second panel of witnesses consists of professionals who
have dealt with the Office of Workers' Compensation Programs
while treating, representing or assisting Federal injured
workers through the appeals process. These witnesses represent
a medical clinic, a Federal union, a law firm and a
congressional office.
Panel III will include representatives of the Office of
Workers' Compensation Programs, who will discuss improvements
in customer service at the agency, and a representative of the
Office of Inspector General of the Department of Labor, who
will discuss its recommendations for improving the medical
authorization process and the agency's customer service survey.
I welcome our witnesses today, and I look forward to their
testimony.
[The prepared statements of Hon. Stephen Horn and Hon. Jim
Turner follow:]
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Mr. Horn. Let me explain how we will go about this. Since
this is an investigating subcommittee of the Committee on
Government Reform, all of our witnesses are sworn prior to
their testimony, and we will begin with panel I this morning. I
see they are in their chairs.
Mr. Thomas Chamberlin, former agent of the Federal Bureau
of Investigation. Welcome, Mr. Chamberlin. Dianne McGuinness,
former employee of the Social Security Administration. Welcome.
And Matthew Fairbanks, special agent/pilot, Drug Enforcement
Agency. We welcome you also.
So if you will stand and raise your right hands.
[Witnesses affirmed.]
Mr. Horn. The clerk will note all three witnesses affirmed.
We will begin with this panel; and if we have time before
12:15, we will begin with part of panel II, Beth Balen in
particular. She has come the longest distance, namely
Anchorage, AK; and we want to accommodate her. We will try to
go all through panel I and begin panel II, and at 12:15 we will
take a break until 2 p.m., when the hearing will pick up again.
So, Mr. Chamberlin, why don't you tell us in your own
words, because we have all read the documents, which are very
detailed and very helpful to us, but summarize for us, if you
would, because we would like to enter into a dialog on this in
terms of questions and answers. So don't feel you have to read
everything.
We are going to give you at least 10 minutes here to get
through your statement; and then we will go to the next person,
Ms. McGuinness, Mr. Fairbanks; and then we will have questions.
So please proceed.
STATEMENTS OF THOMAS CHAMBERLIN, FORMER AGENT OF FEDERAL BUREAU
OF INVESTIGATION; DIANNE MCGUINNES, FORMER EMPLOYEE OF SOCIAL
SECURITY ADMINISTRATION; AND MATTHEW FAIRBANKS, SPECIAL AGENT/
PILOT, DRUG ENFORCEMENT AGENCY
Mr. Chamberlin. Mr. Chairman and distinguished members of
the subcommittee, thank you for providing me the opportunity to
present the barriers I have encountered in the process of
filing a workers' compensation claim with the Office of
Workers' Compensation Programs with the intent to provide a
synopsis of DOL-OWCP's action for analysis to improve
effectiveness and efficiency.
Mr. Chairman, I previously submitted a statement for the
hearing today. Therefore, I will briefly summarize the barriers
I have encountered.
I had approximately 25 years of Federal service when I
filed my claim. I had proudly served with the United States
Marine Corps in Vietnam. Following that, I had a brief
construction service, and then I began my law enforcement
career with the Washington, DC, police, metropolitan DC. Then I
followed over as a special agent with the Drug Enforcement
Agency, and I concluded my career as a special agent with the
Federal Bureau of Investigation.
In 1993, after having been identified as a whistle-blower
for reporting improper Title III wiretap matters, the FBI
targeted me for a character assassination. This is where the
problems erupted. Subsequently, I was removed from the rolls of
the FBI in 1994.
On October 17, 1995, I filed a claim at the Department of
Labor's Office of Workers' Compensation Programs, a claim which
has yet to be finalized. The three barriers I encountered are
incompetency, inaction and an adversarial position. The
exhibits I will present will overlap in these three areas.
I encountered these barriers first during the initial
filings of my claim. In summary, it took 10 months, six
mailings, unlimited calls, and action of the Secretary of Labor
to initiate the filing of the claim.
The first exhibit I present is from Chris Brandstrip,
supervisory claims examiner, Department of Labor; and it is
dated April 26th; and it is to the FBI requesting compliance.
Mr. Horn. Without objection, this letter will be put in the
record at this point.
[The information referred to follows:]
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Mr. Horn. Thank you. Please proceed.
Mr. Chamberlin. It is dated in April, and it states that
DOL-OWCP had a copy of the claim completed by Mr. Chamberlin
dated on October 18th and that they request why the FBI hasn't
began processing it.
The next memo was a memo from Department of Labor, and it
indicates here, this is approximately 1 year later, my entire
package from my file was returned to me. And it states, ``This
person is not a Federal employee. We are returning the
materials you have submitted for your disposition.'' The memo
is not signed, does not bear a name. It just returned the
entire package.
That was what I had encountered in trying to file the
claim.
Following that, the second segment was and is going to
review process.
After having filed the claim, I had inquired with William
Israel, the claims examiner, to see if he had received my
package. There had been a total of six mailings, all registered
return receipt. This is exhibit 3. And on that the exhibits are
signed bearing a similar signature from a DOL-OWCP employee,
and the dates range from September 1996 up to and including
March 1998.
Of significance is the one on November 25, 1996. This is
the reconsideration I had submitted to Mr. Israel, and Mr.
Israel had stated he had not received the package. However, it
is the same signature that the other five bear.
Following this is what I have labeled as the notorious
Karen Mendernach homicidal-suicidal memo. After having been
targeted as a whistle-blower, on July 19, 1993, Special Agent
Mendernach prepared a confidential memo to FBI headquarters and
FBI management in Detroit stating, ``Chamberlin may be
emotionally or mentally unstable. Several agents believe he may
be a danger to himself as well as to others. The agents
requested anonymity.''
This report I have been unable to obtain for quite a period
of time. My attorneys, my treating doctors had requested it,
and I had pleaded with the Department of Labor, Office of
Workers' Compensation Programs, to obtain the document, but to
no avail. However, it was released on August 5, 1998, through a
congressional inquiry from Honorable David Price. And that is
the fifth exhibit.
The final exhibit is a memo from Marilyn Preuit, a hearing
representative, and this is the denial of my last
reconsideration. And in that she specifically states, ``If you
disagree with this decision, you have the right to appeal
before the Employees' Compensation Appeals Board.''
Additionally, I had talked with Stephanie Stone as well as
Deputy Director Sheila Williams in regards to do I have the
right to appeal for a reconsideration. Ms. Williams
specifically told me that she did not have that answer and that
she would have to do the research to find out if I had the
right for reconsideration.
Concluding, the DOL-OWCP also maintains the position it is
a security matter. I challenge this, for during the Merit
Systems Protection Board in December 1994, Administrative Law
Judge Nina Puglia had informed my attorney that it was an open
court matter and that it was open to the public. Additionally,
OWCP claims security, while the FBI has only produced
approximately 20 pages, while the claimant has submitted over
1,000 pages of FBI documents, all of which are unclassified.
In conclusion, Mr. Chairman and distinguished members of
the subcommittee, I would again like to personally thank you
for allowing me to participate in this hearing.
[The prepared statement of Mr. Chamberlin follows:]
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Mr. Horn. Let me just pick up one question to clarify the
exhibits.
You mention the July 19, 1993, memorandum from Karen Z.
Mendernach to James R. Perez, Equal Employment Opportunity
officer. You note that throughout your testimony and call it
notorious, and you say they are documenting such an
unsubstantiated allegation. Did this individual, Karen
Mendernach, ever talk to you, ever examine you in any way?
Mr. Chamberlin. No, she didn't. I had requested this memo;
and, as of August 1993, I had never been able to retrieve it
and the FBI was in denial of the actual document.
Mr. Horn. How large is this document? Is it just this one-
page memo? Are there attachments to it? Or what have you found
out?
Mr. Chamberlin. Sir, through various avenues of litigation,
I have determined that there are several other documents
surrounding it. I have seen ASAC Stapleton had referred to
this; and during interviews in regard to these agents I have
been unable to obtain any of those documents.
Mr. Horn. So, you feel those documents do exist. People
have based judgments on them, and yet you cannot get a copy of
that, even though it concerns you. And, you would think if they
are going to give a psychiatric exam, you would remember it?
Mr. Chamberlin. Yes, sir.
Mr. Horn. And they didn't give a psychiatric exam.
Mr. Chamberlin. Correct. On two occasions, I believe it was
September 17th and October 6, 1993, FBI management in Detroit
had requested a psychiatric exam, unbeknownst to me. And I
don't know what documents evolved from that, and I was never
required to submit for a psychiatric exam, and they refused to
present any of the documents. And my doctors have made over 20
requests, as well as the attorneys, to obtain documents
relevant to it; and the FBI refused to comply.
Additionally, I have pleaded with the Department of Labor,
Office of Workers' Compensation Programs, for assistance. And
claims examiner--I believe it was Gloria Watson had informed me
that she had obtained sufficient documents, and that would be
roughly these 20 pages from the FBI, and that they were not
going to require them.
Mr. Horn. Do you know if Karen Mendernach is an M.D.?
Mr. Chamberlin. No, she is an FBI agent with a Bachelor's
degree.
Mr. Horn. So she doesn't have a medical degree.
Mr. Chamberlin. Correct.
Mr. Horn. She is not a registered, board-certified
psychiatrist; is that correct?
Mr. Chamberlin. Correct.
Mr. Horn. And yet she is making these judgments.
Mr. Chamberlin. Correct.
Mr. Horn. Do you know if she ever interviewed people that
worked around you and have a list of those interviews
somewhere?
Mr. Chamberlin. To my knowledge, she did interview, just
referring to the memo. But they requested anonymity. And I
addressed Rita Harrington, the Employees' Assistance
Coordinator, pleading for these while I was an agent, stating
that the FBI was letting me carry a loaded weapon around the
office with these allegations, but they all refused.
Mr. Horn. I would think it is a little difficult for agents
to request anonymity if they can simply libel a fellow worker,
and I can't believe that kind of stuff would go on. I am
surprised the FBI would permit that.
If they want to go to board-certified psychiatrists or
psychologists, that's one thing, but just to have particular
views of fellow workers and think you should give that any
credence boggles the mind.
So, you don't know about any more attachments to that.
Presumably, those would be where they say several agents
believe he may be a danger to others as well as to himself. The
agents requested anonymity. Well, you are saying there's
probably a file there somewhere and you have never been allowed
to counter that file; is that correct?
Mr. Chamberlin. Correct, sir. During my dismissal with the
Merit Systems Protection Board we were able to obtain documents
where the ASAC had referred to interviewing a number of agents
and various documentations, as well as to request for the two
psychiatric evaluations. However, the FBI has refused all of
our requests.
Mr. Horn. Now, you say on page 3 of your testimony the
claimant was never ordered to undergo a psychiatric evaluation
by the FBI. Did they ever ask you to undertake such an
evaluation?
Mr. Chamberlin. Never, sir.
Mr. Horn. You note that Congressman David Price, one of our
most esteemed Members here, successfully obtained the notorious
memo to which we have referred here; and in August 1998, after
5 years of requests by the employee, treating doctors,
attorneys, and Senators, the FBI continues to withhold several
other relevant documents. Such as what? What do you surmise
they still have?
Mr. Chamberlin. Such as the interviews in regards to these
agents. Such as all the documentation--when FBI management in a
division requests a psychiatric evaluation, they must submit
written documents to support their request for the psychiatric
evaluation and, in turn, FBI headquarters will respond back to
them in a written document.
And so, therefore, there were two requests, and I have been
unable to obtain the documents pertaining to the two requests,
the documents that would support the two requests, as well as
FBI headquarters documents that would either support the
request or deny the request.
Mr. Horn. Well, thank you.
Mr. Horn. We will now move to Ms. Dianne McGuinness, former
employee of the Social Security Administration. Ms. McGuinness.
Ms. McGuinness. Thank you. I wish to thank you for the
honor of being here today. I am here to tell you about my
frustrations with customer service at the Office of Workers'
Compensation Programs. There are a few concerns I wish to
discuss today, and while these are only two or three concerns,
the magnitude is far greater.
Mr. Kenneth Hamlett, Regional Director of the New York
Office of Workers' Compensation Programs, threatened to deny my
claim over and over if I went to my Congressmen. He told this
to Miriam Madden, Director of Senator Alphonse D'Amato's
office, on September 18, 1996; and she called me to tell me so.
I submitted a copy of her statement for the record.
Title 5 U.S.C. 7211, Employee's Right to Petition Congress,
states, ``The right of employees, individually or collectively,
to petition Congress or a Member of Congress, or to a committee
or member thereof, may not be interfered with or denied.''
There are times when I needed congressional assistance and
assistance from my union representatives. These times arose
when I could not get through on the telephones at the OWCP
because they were either busy, the mailbox was full, or nobody
returned my calls or answered my letters.
I had problems getting copies of my file. Every few months
I would ask for the current part of my file that I did not
have. My informal requests were ignored, and my formal requests
under the Privacy Act were ignored. I was even referred to as a
liar by a claims examiner when my union explained the need for
my file so that I may address my pretermination appeal.
When I finally did get a copy of my file, there were 97
pages of someone else's doctors' reports, memorandums, personal
letters, et cetera, in my file. I contacted the other Federal
injured worker, in another State, 1,500 miles away and in a
different region, to tell him what I had found. I also
contacted his Congressman, and we both contacted Congressman
Horn's office to complain. Someone may have parts of my file in
their file. I also found a job resume and several pages from a
third person's file. This leads me to believe that my file
wasn't worked. If my file was worked, the claims examiner would
have found these documents.
I was told that the unit supervisors do the filing. I
called Jonathan Lawrence, District Director of the New York
office, and I explained how difficult it was to get through on
the telephones. Often I would get told from Customer Service
they would take a message and a claims examiner would call me
back within 3 days. Mr. Lawrence told me in this conversation
that if people can travel and go here and there and do
everything else, there is a possibility that they are not
totally disabled. They can travel and do certain other things
but they can't work, and that doesn't make sense to me. If a
doctor says a person is unable to work, then they should be
unable to leave their homes, he said.
I submitted a tape recording of this conversation to the
subcommittee and wish it to be made part of the record.
Mr. Horn. Without objection, it will be put in the record
at this point.
[The information referred to follows:]
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Ms. McGuinness. I was also sent to an OWCP doctor for a
neurological examination. I had my shoes on, all my clothes on,
and the doctor told me he was in a rush. He did not touch my
upper extremities or lower extremities during his examination.
He did not perform any clinical tests to determine injuries to
my upper extremities except for me to have him squeeze his
hand. His bill for this examination was $285. The examination
was less than 4 minutes, and it seemed that his charge was--he
was being paid $75 a minute for this service. His examination
resulted in a conflict of medical opinion.
I submitted a tape recording to the subcommittee of this
examination, and I wish it to be made part of the record.
Last, it was Mr. Kenneth Hamlett, Regional Director of the
New York office's treatment of me when I went to the office
with my union president for a prescheduled appointment. The
Regional Director told me that he was denying my physical
therapy, sending me back to work very soon, sending me for a
referee examination, ignoring my pretermination appeal,
refusing me the right to participate in the selection process
of an impartial physician, and denied me the right to see my
file in person.
I needed that file. I had a few more days left before I
could complete my appeal, and I believe that he denied me the
right to see my file so that my appeal would not be as complete
as I would have liked it to be.
He also threatened to have me removed by guards if he ever
found me on the 7th floor without an appointment. I feel that
Mr. Hamlett, in his capacity of Regional Director, was
practicing medicine when he denied me my physical therapy; and,
based on Mr. Kenneth Hamlett's statements, I assert that the
outcome of my claim was predetermined so that I couldn't
collect my legitimate benefits. He violated my rights, and the
processing of my claim was at the direction of Mr. Hamlett.
I defer any further testimony to Mr. John Riordan, then
union president of AFGE 3369, who was present during my
encounters with Mr. Hamlett.
And I would like to add one thing: this statement took
longer than Dr. Bloom's examination. I thank you and I welcome
your questions.
Mr. Horn. Well, thank you very much.
[The prepared statement of Ms. McGuinness follows:]
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Mr. Horn. We now move to Mr. Fairbanks, Matthew Fairbanks,
Special Agent/Pilot, Drug Enforcement Agency.
Mr. Fairbanks. Chairman Horn and members of the
subcommittee, thank you for the opportunity to testify today on
the topic ``Oversight of Customer Service at the Office of
Workers' Compensation Programs.''
My name is Matt Fairbanks, and I am currently employed as a
special agent with the U.S. Drug Enforcement Administration.
Although I am an employee of DEA, I am appearing today as a
private citizen, not as a Department of Justice employee or a
DEA employee.
My current duties are that of aviation specialist. I'm a
pilot for the DEA. The job requirements in this position have
taken me all over the United States and into Central and South
America.
On September 25, 1998, I was involved in a training flight
accident. The flight was a beginning to transition myself into
the helicopters. During the flight, my flight instructor
demonstrated a very aggressive maneuver. As the terrain rushed
up toward our OH 6 helicopter, I knew we were in serious
trouble. With a loud crash, my instructor was killed; and I
found myself trying to escape the burning wreckage. I wanted to
get my instructor out also, but the flames finally drove me out
of the inferno.
I was life-flighted to Parkland Hospital, where I remained
for 2 weeks, for which I have little or no memory. Upon arrival
at the hospital, my blood pressure was dropping; and I was
severely burned over 56 percent of my body. The emergency room
physicians discovered that my spleen had been lacerated beyond
repair and had to remove it in order to save me from bleeding
to death.
I then spent 4 weeks in the Burn Intensive Care Unit. While
in the BICU, I had four operations in which viable skin was
painfully harvested from unburned areas of my left arm and
chest. This was accomplished via a high-tech cheese grater and
a press. The tissue is now in place on my right arm and legs,
and it continues on its 18-month journey to mature as grafted
skin.
After 6 weeks in Parkland Memorial Hospital, I was able to
return to my home. My wounds were still open, and my care
necessitated a daily nurse visit for IV antibiotics and wound
cleaning. All of this was arranged by my workers' compensation
case worker, Ms. Sue Maraglino. Additionally, I was required to
make a 50-mile round trip to the hospital on a daily basis for
therapy and wound care. Once again, all the arrangements, down
to the transportation, were taken care of by my caseworker, Ms.
Maraglino.
As a nurse, Ms. Maraglino was able to answer all of my
family's questions and address all of our concerns; and, as a
caseworker, she was also attended to the important doctors'
appointments which I had. To this day my recovery has not been
hampered due to lack of funding, and I have been carefully
informed about what to expect in the future and future
surgeries.
Over the months of my recovery, I have had numerous
occasions to reflect upon my experiences as a DEA Special
Agent. I recall my mission to the Oklahoma City bombing site. I
was there as part of my duties as a Special Agent. However,
others were there volunteering, volunteering their time trying
to help in a hopeless situation.
Various church groups and workers set up dinner banquets on
a daily basis at our base of operations, with no charge. A
construction worker, seeing my DEA jacket, approached me just
to shake my hand and thank me for helping them take care of
their own. Schoolchildren made signs and posters which were
hanging everywhere. There was one in our bathroom hanging over
the mirror which read, ``You are looking at a hero.'' A man
stood at the entrance to the work area with little bags of
cookies. He told us, ``My daughter made these for you. Please
take a bag of cookies. It is her contribution.'' Even country
singer Garth Brooks made a personal phone call to the son of
DEA Special Agent Kenny McCoullough, who was killed in the
blast. This phone call brightened the day of a little boy
during a very dark time.
These seemingly small acts provided me with great strength
and drive while I was standing on that mountain of rubble,
formerly known as the Alfred P. Murrah Federal Building. I
could lift the next stone and clear the next level of the
building in a continuing search. I did not find anyone alive,
but I did find that the great spirit of America was not dead. I
previously thought it was.
The same experience which helped me deal with the broken
remains of the Federal building laid a groundwork for me in
dealing with the shattering conditions of my own life. I'm
grateful to a caseworker who provided me with every means at
her disposal to help me pick up the broken remains of my life
and prepare to go on.
While I lay there in my hospital bed, I recall hearing the
news that another teenager in Plano, TX, had lost their life
due to an overdose of heroin. It made me think about an event
years earlier when I was a Dallas, TX, police officer on the
streets of Dallas. I had arrested a poor disoriented junkie. As
I checked for weapons, I came across a paper on which he had
written the following:
My name is cocaine, call me Crack for short
I entered this country without a passport
Ever since then, I've made scum from the rich
Some have been murdered and found in a ditch
I'm more valued than diamonds, more treasured than gold
Use me just once and you too will be sold
I'll make a school boy forget all his books
I'll make a beauty queen forget her good looks
I'll take a renowned speaker and make him a bore
I'll take your own mother and make her a whore
I'll make a school teacher forget how to teach
And I'll make a preacher not want to preach
I'll take your rent money and get you evicted
I'll murder your babies, or they'll be born addicted
I'll make you rob, and steal and kill
When you're under my power, you'll have no will
Remember my friend, my name is ``Big C''
If you try me one time, you may never be free
I've destroyed politicians, actors and heroes
I've reduced bank accounts from millions to zeros
I'll make shooting and stabbing a common affair
Once I take charge, you won't have a prayer
Now that you know me, what will you do?
You'll have to decide, it's all up to you
The decision is one to sit in my saddle,
It is one that no one can straddle
Listen to me, and please listen well
When you ride with cocaine, you ride straight into hell.
My life, my job, my responsibility to you collectively is
about removing these soul-destructive elements from our
society. Ms. Sue Maraglino's job is to get me back to health so
that I can perform that task. She did her job, and as of
Tuesday of last week, I am back to do mine.
I'm familiar with the bureaucracy, and I've seen my share
of government workers that are professionally ``less than
anxious.'' Although others could have had an experience
different than mine, I can say that if all caseworkers were as
prompt and professional and courteous as mine, nothing more
could be expected. Thank you.
Mr. Horn. Thank you very much. That is a very moving
statement and quite a poem, I must say.
[The prepared statement of Mr. Fairbanks follows:]
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Mr. Horn. The gentlewoman from Illinois, the vice chairman
of the subcommittee, will start the questioning.
Mrs. Biggert. Mr. Fairbanks, about how long did it take you
to resolve your case, then?
Mr. Fairbanks. Everything was resolved on an ongoing, an
as-needed basis, and there was never any--I had constant
contact with my caseworker throughout each operation and each
new phase, and so there was never anything that was unresolved.
Mrs. Biggert. Was it in a reasonable amount of time, then,
as you moved along? I'm wondering if it was before anything
started. Did you have to wait a long time?
Mr. Fairbanks. No, no, there were no waits. And during a
large percentage of the time I was helpless and drugged up and
incapacitated in the hospital. But, nevertheless, everything
was always taken care of immediately; and there were no worries
that my family or friends or the other agents that were helping
me had.
Mrs. Biggert. And, Ms. McGuinness, did you find the same
prompt service?
Ms. McGuinness. No, ma'am, I did not. There were always
delays. I couldn't get materials that I needed. If I needed
assistance or I had a question, if I needed a copy of my file,
it was denied all the way through.
Mrs. Biggert. Do you know other people that felt the same
way?
Ms. McGuinness. Yes. Yes, I do. A lot of people.
Mrs. Biggert. And Mr. Chamberlin?
Mr. Chamberlin. It took 10 months to get the file just
accepted for review, and it was a letter to the Secretary of
Labor. And then, following that, it has been approximately 5
years; and the case remains pending.
Mrs. Biggert. Was there a problem with having correct forms
in your package? Was that a part of the delay, that you didn't
fill out the forms correctly or the right forms?
Mr. Chamberlin. No, it appeared that OWCP personnel just
did not review the entire package. And, additionally, I had a
number of doctors as well as the accompanying FBI documents
that I was able to obtain submitted. However, the OWCP
personnel would continuously almost misinterpret, be it
intentionally or inadvertently, what the doctors were saying.
The reports were there, and I would continue to submit it.
And on one occasion, Mr. Israel, the claims examiner, had
indicated that he was going to speak to Gloria Watson in
regards to the fact he felt the entire facts were submitted for
the case and the claim should be accepted, but nothing came to
it.
Mrs. Biggert. So did the FBI fulfill their end of the
bargain and did they complete the forms properly that had to go
for the workers' comp?
Mr. Chamberlin. Absolutely not.
Mrs. Biggert. And do you know why?
Mr. Chamberlin. No, I'm unable to provide an explanation.
Mrs. Biggert. So did the Office of Workers' Compensation
Programs ever ask the FBI for these forms?
Mr. Chamberlin. They did back in August of, I believe it
was 1996; and said they submitted the minimum amount of
documents. I have been attempting to obtain, as I indicated
previously, 5 years to obtain the documents in regards to the
allegations of me being homicidal, suicidal, and all the
documentation surrounding it, and the FBI refuses to produce
it.
Mrs. Biggert. Was this the Mendernach homicidal-suicide
memo?
Mr. Chamberlin. That is one of the documents, yes.
Mrs. Biggert. So the Office of Workers' Compensation
Programs, were they willing to pursue these documents from the
FBI?
Mr. Chamberlin. No. In a FOIA request to OWCP, I had asked
if they had any additional documents, other than the ones I had
received from the FBI; and OWCP's position was, we have not
communicated with the FBI nor do we intend to nor is there a
need.
Mrs. Biggert. And you got help from a Congressman?
Mr. Chamberlin. Yes, Congressman Price.
Mrs. Biggert. And so he helped you obtain that document.
Mr. Chamberlin. Yes. He had submitted several inquiries on
it and asking for specifically that document. And on their
first release, they had provided a document to Congressman
Price that was nonrelated, but it was written by Karen
Mendernach on that same date, and that was just an action of
their intentional deceit.
Mrs. Biggert. What then was the reaction of the Office of
Workers' Compensation Programs to supplying the document for
the case file?
Mr. Chamberlin. Following the submission of the----
Mrs. Biggert. Yes.
Mr. Chamberlin. The first time I had submitted it, which
was last August and September, the report from OWCP completely
ignored it. They did not address it and did not acknowledge
receiving it. I had sent it to them, I had faxed it to them,
and they had acknowledged receiving the fax. And I followed it
up within the next 5 weeks with communications asking that it
be forwarded to the appropriate claims examiner to ensure that
they had it.
On the decision by Ms. Preuit, they just did not address
it. It is currently before them right now, and it is 128 days
pending the reconsideration.
Mrs. Biggert. But they have acknowledged the memo?
Mr. Chamberlin. They have acknowledged receipt of the memo
at the time I faxed it. They have not acknowledged the memo in
their memorandum to the Director on the denial of the
reconsideration.
Mrs. Biggert. And you mentioned in your testimony that you
are on your fourth reconsideration now?
Mr. Chamberlin. Yes.
Mrs. Biggert. And how long have you been waiting for a
response to that?
Mr. Chamberlin. 128 days.
Mrs. Biggert. Did the workers' comp group issue a date in
which they stated the decision on your claim would be provided?
Mr. Chamberlin. They have indicated that it would be in 90
days.
Mrs. Biggert. You also stated in your testimony that you
struggled to confirm your appeal right from OWCP. Why was this
difficult to do?
Mr. Chamberlin. Well, I had received the last, and now Ms.
Preuit's letter specifically stated to take it to ECAB.
Following that, I had inquired if I had the right to file a
reconsideration. Specifically, I did not want to go to ECAB
without the homicidal-suicidal memo as part of the package.
Included in the letter was for me to contact, if I had any
questions, a Ms. Stone in Washington, DC, with OWCP. Her
response was to just follow the appeals rights. She would not
address if I did have the right to file a reconsideration.
Following that, I talked with Sheila Williams. She informed
me that was an interesting question and she would have to do
research to find out if I would have the right for a
reconsideration. She informed me that she would be traveling
the week of, I believe it was November 16th, and that she would
get back with me, and she had never followed up a return call.
Mrs. Biggert. So she just thought that was an interesting
question and that is as far as it went?
Mr. Chamberlin. Yeah. She did not have the answer if I had
the right to file a reconsideration.
Mrs. Biggert. So, has this process been financially
draining to you?
Mr. Chamberlin. Well, at the time I was dismissed from the
FBI I lost my house. My wife had a stroke. We've had four
different residences since. We have been moving around. We've
lived in two abandoned farmhouses and just fixed them up.
I have applied for several hundred jobs, over 60 in the
State of North Carolina. I have two master's degrees, course
work completed for a Ph.D., and 25 years of government
experience and applying for a job of $22,000 and up, and I have
been unable to obtain full-time, permanent employment.
Mrs. Biggert. So do you have a source of income?
Mr. Chamberlin. I have retirement now from the OPM.
Mrs. Biggert. Thank you very much.
Thank you, Mr. Chairman.
Mr. Horn. Well, thank you.
Mrs. Williams was mentioned, and you said she did not get
back to you. Was she cooperative when she talked on the
telephone?
Mr. Chamberlin. Sir, I guess it could be--I wouldn't want
to make a biased statement to say that she was uncooperative or
she was passive. She just felt it was an interesting question;
she would have to do the research.
And then I still had not had the answer, and I had checked
with Congressman Price's office and she was very concerned, Ms.
Gay Eddy, of whether I should file--she was emphasizing to file
with ECAB because of the 90-day restriction for ECAB. And then
I had submitted it within the 90-day period, and if that
wouldn't suffice I was going to go to ECAB.
When I submitted it, I followed it up with a phone call.
And Ms. Williams stated, well, we have it; I guess it will go.
She did not elaborate.
Mr. Horn. Do you remember what her position was in the
Department of Labor?
Mr. Chamberlin. I believe she is the Deputy Director, or
was the Deputy Director.
Mr. Horn. For the region or a district or what?
Mr. Chamberlin. I was under the impression for the entire
OWCP.
Mr. Horn. I see. So she is in Washington, not in the field?
Mr. Chamberlin. Correct.
Mr. Horn. What was the region that you dealt with on most
of your activity and claims?
Mr. Chamberlin. When I initiated the claim, I was told to
file with Jacksonville, FL; and I began to make the filings
with Jacksonville, FL. And, unbeknownst to me, as the time
progressed, this is where they had sent the files to the FBI
and had returned the packages on two occasions saying they were
not processing the claim.
Following that, I submitted the letter to the Secretary of
Labor, Honorable Robert Reich. And as a result of submitting it
to him, I'm making the assumption he had forwarded it to the
Washington, DC, office. I believe it was the security office,
OL 9. So OL 9 actually processed the claim.
Mr. Horn. So you were working with the Florida region, I
assume?
Mr. Chamberlin. Initially, yes.
Mr. Horn. But also with the national headquarters?
Mr. Chamberlin. Yes. Somehow, in other words, in trying to
get the claim filed initially with OWCP, it was with the
Jacksonville, FL, office. And then, as a result of the
Secretary of Labor's actions, it was submitted to Washington,
DC.
Mr. Horn. Did the OWCP pursue the missing documents from
the FBI?
Mr. Chamberlin. They were not of any assistance at all.
They specifically told me that they had sufficient documents
from the FBI and that they had no need to further communicate
with the FBI nor did the FBI have a need to communicate with
them.
Mr. Horn. So they had seen or had held the documents. It is
just you that didn't see them.
Mr. Chamberlin. No, they said they never received--or they
had no acknowledgment. The documents that they had provided me
under the FOIA, of the documents that were submitted to OWCP by
the FBI, were very limited, approximately 20 pages.
Mr. Horn. Ms. McGuinness, what region was it primarily with
whom you dealt?
Ms. McGuinness. New York region.
Mr. Horn. The New York.
How about you, Mr. Fairbanks? What was your region that was
helping you on the case?
Mr. Fairbanks. The Dallas, TX, region.
Mr. Horn. Dallas, TX, region.
Well, thank you. Are there any other points you would like
to make?
I think you have a very full record here. And we, I might
say, out of the three of you, we have hundreds of files that
have been sent to us over the last few months; and some of them
are just very tragic and similar to some of your cases in terms
of the lack of, shall we say, proper handling in the sense, I
don't want to use the word handling particularly, but just that
people on the government payroll ought to realize that they are
there to serve the people; the people are not there to serve
them. And it comes up again and again in office after office
that we have real problems with in that area.
I'm glad to hear Mr. Fairbanks had a very positive
experience. That hasn't been the tenor of a lot of the files
that have come in from all over the country, and that's what
started me on this in Long Beach about 3 years ago when I had
60 people under the Federal injured workers situation. And I
just went right down the line and I said, tell me your story;
and I came back filled with 60 stories, most of which either
the government agency or this program had been less than
helpful, to put it charitably.
So I thank you for getting this on the record, and we
appreciate it, and thank you very much for coming.
We will now start with panel II, if they will come forward.
Beth Balen, administrator of the Anchorage Fracture and
Orthopedic Clinic; John Riordan is first vice-president,
Council 220 of the American Federation of Government Employees;
James Linehan is an attorney; and Tina Maggio is field
representative for the Office of Representative Michael F.
Doyle.
If you would stand and raise your right hands, please.
[Witnesses affirmed.]
Mr. Horn. The clerk will note all four witnesses have
affirmed the oath.
We will begin with Beth Balen. Thank you for coming all
that distance, Ms. Balen.
STATEMENTS OF BETH BALEN, ADMINISTRATOR, ANCHORAGE FRACTURE AND
ORTHOPEDIC CLINIC; JOHN RIORDAN, FIRST VICE-PRESIDENT, COUNCIL
220, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES; JAMES
LINEHAN, LAWYER, JAMES R. LINEHAN, P.C.; AND TINA MAGGIO, FIELD
REPRESENTATIVE, OFFICE OF REPRESENTATIVE MICHAEL F. DOYLE
Ms. Balen. Thank you. My name is Beth Balen, and I'm the
administrator of the Anchorage Fracture and Orthopedic Clinic,
which is an eight-physician orthopedic group in Anchorage, AK.
I would like to, I guess, apologize for the length of my
statement that I submitted. Unfortunately, most of it is
numbers, so there's a lot of backup documentation there.
Federal workers' compensation claims, paid through the U.S.
Department of Labor, have been a long-term problem for our
clinic and other Alaska providers in general, and these
difficulties have led many offices in the State to refuse to
accept USDOL patients.
Our physicians want to be able to treat sick and injured
patients, but it's difficult to deal with all the USDOL
guidelines which, really, the government relationship or the
government regulations are interfering with the doctor-patient
relationship. They're sort of getting right smack in the middle
of it.
In the past 3 years, our office as well has pretty much
stopped accepting appointments from USDOL patients due to the
low reimbursement rates and the amount of staff time involved
to obtain payment. We will see the patient, but frequently we
make them self-pay, particularly if a case number has not been
issued yet, because we don't have time to deal with the
headaches of billing the USDOL.
And I would like to stress that this doesn't apply if the
patient comes to us from the emergency room when we are on
trauma call for the city, in which case we take any and all
patients and whatever insurance coverage they may or may not
have.
The problems that we experience with U.S. Department of
Labor patients include, No. 1, the low fee schedule. I have
included a number of examples in my statement which show the
actual patient bills for some of our recent USDOL patients,
starting on page 3 in my statement. I have shown you our
charge, the amount Alaska Workers' Compensation would have paid
if it had been State workers' comp, and the amount the USDOL
actually paid.
For example, a carpal tunnel release that we charge $1,428
for, Alaska Workers' Comp actually allows more than we charge.
They allow $1,733, but the USDOL paid $691. For a laminotomy,
back surgery, we charge $5,227. Alaska Workers' Comp pays
$4,608. USDOL paid $2,107. Frequently, it's less than 50
percent of the charge. We end up writing off considerably more
than we get paid.
The second major issue that we have a problem with are the
forms. The forms that a USDOL patient comes in with are
lengthy, they are time consuming, and in the amount of time it
takes a physician to complete his part of the form he could
have seen another patient. The forms are also redundant,
because the information that they request is standard in
medical office visit dictation, which is always attached to the
claim anyway.
From 1988 through 1991, our office didn't see any USDOL
patients, which was following a sting operation engineered by
the U.S. Department of Labor which targeted Alaska physician
offices. In 1991, we started seeing these patients again, after
we worked out an arrangement with the USDOL in Seattle that we
would bill with our chart notes and our standard forms and not
use the lengthy forms, which we continue to do today, but we're
constantly hounded by the patients and their employers that the
form has to be filled out.
Another problem is the delay that we have as the patient
obtains their case numbers. Our experience has shown it takes
at least 30 to 45 days for a claim number to be issued by the
USDOL, and there is absolutely no way in the meantime to bill a
claim to the USDOL without a case number on the bill. It's
returned immediately to our office saying there's no case
number on file.
It doesn't appear that there's any way for the USDOL to
enter the claim in their computer and wait for a claim number
to be issued, and it also doesn't appear that they are willing
or able, one of the two, to put in a patient's name and look
and see if there's a case number on file. They won't look it
up.
Many times we have a claim number, we have it written on
the bill, and the claim still gets rejected for no claim
number. It looks to us, although we have no way to prove this,
that it's possible for a claim number to exist in one part of
the USDOL's computer but not in another part, namely the claim
payment portion.
Frequently, claim numbers are issued without the proper
medical condition attached to them, then the claim gets denied,
saying that the billed services are not related to the accepted
condition. If the claim gets rebilled three or four times with
no changes made to it, eventually it gets paid because
something gets updated in the computer. So rebillings are just
a constant--it is almost a given with the U.S. Department of
Labor. You do not get paid the first time you submit the bill.
You have to do it several times.
There seems to be very poor communication between Federal
employers and the USDOL, and I question whether this is because
the employers are not properly instructed in the process or
whether the process is just so complicated that nobody could
possibly follow it. And I have given you an example of this
attached, which almost seems like it belonged in the testimony
for the first panel, where this employer authorized the claim
and the USDOL issued paperwork but it took more than 8 months
from the date of this patient's surgery plus hours of staff
time to get the claim paid.
The automated telephone system presents a problem. It's not
possible to call and speak to a person if you are having
problems with the claim. You punch numbers, you leave a
message, the message process that you have to follow to get
information or leave a message is very long, and you never know
if you are going to get a call back or not. Although I must say
that recently we did get a call back on a claim. I don't know
if that's a fluke or a sign of improvement.
The time involved to work these accounts in order to
receive payments has become a serious issue to us, and
typically the amounts of reimbursement we get is not worth the
effort.
The Federal Government is the largest employer in Alaska.
Many of our friends and relatives work for them. My husband
works for them. Our doctors want to be able to treat all of the
sick and injured patients that need it and come to us, but the
USDOL rules make it virtually impossible to do so. The
combination of low reimbursements rates, the difficulties we
have had in obtaining payment, and the past history we've had
in dealing with USDOL just doesn't make treating USDOL patients
good business sense. Thank you.
[The prepared statement of Ms. Balen follows:]
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Mr. Horn. Let me just question you on one point. I want to
make sure I understand on the chart, the write-off. Is that
essentially your agency's write-off on it?
Ms. Balen. That's the amount that we have to write off,
because you cannot bill Federal worker for the difference in
what the USDOL pays and what our charges are. So, yes.
Mr. Horn. That mounts up to quite a bit. Of these
particular operations you note here, was there ever any attempt
to get the agency to change the fee, particularly based on the
cost of living in Alaska, which is probably the highest in the
United States, isn't it?
Ms. Balen. Pretty close.
Mr. Horn. If not the State of Washington. The two of them
usually have been the highest cost of living.
So have they ever adjusted their fees based on concerns
from you?
Ms. Balen. They have never adjusted the fees, to my
knowledge. We have tried appealing, and in fact we appeal to
commercial insurances periodically using some of the
documentation that I have attached in my statement. An appeal
to the USDOL is typically a waste of time, though. The only
response we get is that's their fee schedules and that's it.
Mr. Horn. Well, I thank you. That's a very helpful document
and series.
And we will now move to Mr. John Riordan, first vice
president, Council 220, American Federation of Government
Employees.
Mr. Riordan. Mr. Chairman and members of subcommittee.
Thank you for this opportunity to address the topic of
customer service at the Office of Workers' Compensation
Programs by the Department of Labor.
My name is John Riordan. I am first vice president of the
American Federation of Government Employees, AFL-CIO, Council
220 which represents approximately 25,000 Social Security
employees in field offices throughout the country. I have been
employed by the Social Security Administration for over 25
years. And as a union official, I have represented many SSA
employees that have been injured on the job and who have
applied for workers' compensation.
I am currently representing four employees. None of these
employees are receiving compensation benefits at present,
although they applied for benefits many months ago. I encounter
difficulties contacting agents because of the voice mail
system. You are no longer able to speak with an agent. Instead
I have to leave voice recorded messages. When I receive no
response, I have to write to them even though I work in the
same building, 201 Varick Street, New York City, where they are
located.
They imposed a policy restricting visitors to their offices
a couple of years ago. I want to recount briefly an incident
which occurred on September 16, 1996, when I accompanied a
customer who wanted to deliver some documents to the OWCP
office at 201 Varick Street. The customer who I accompanied is
Dianne McGuinness who testified earlier before the
subcommittee.
Ms. Diane McGuinness came to my office and reviewed some of
the documents she wanted to submit to OWCP. Ms. McGuinness
wanted to deliver her appeal of the denial of the continuation
of her workers' compensation benefits. I was, at that time,
president of AFG Local 3369 which represents Social Security
field office employees in New York City, Long Island, and
Westchester County. We took the elevator from the 11th floor to
the 7th floor where OWCP is located. The door to the office was
locked and there was no mail slot.
While searching for a place to deliver the appeal, a man
appeared at the end of a long corridor and started shouting. I
tried to ignore him, but Ms. McGuinness said to me that he was
shouting at us. As the man approached he was still shouting,
indeed it was directed toward us.
We attempted to explain to him why we were there, but he
didn't stop talking so he could hear our response. He told us
to leave the building immediately. He said we had to have an
appointment to be there. I told him that I had called to make
an appointment earlier, but no one responded to our calls. Ms.
McGuinness and I told him that we were Federal employees. The
man responded that he didn't care whether or not we were
Federal employees and that he would call the security guards to
remove us if we did not leave.
Ms. McGuinness had made an appointment through the
Senator's office to deliver the appeal, but she was not able to
tell the man this because he would not let her talk. The man
was visibly upset and disturbed by our presence. Ms. McGuinness
asked him if he were Mr. Kenneth Hamlett, the New York Regional
Director OWCP, and he said he was. Ms. McGuinness introduced
herself to him and Mr. Hamlett replied, ``Oh, Ms. McGuinness,
we're going to get you back to work real soon.''
I introduced myself to Mr. Hamlett. I told him that I
worked in the building and was not told that the 7th floor was
restricted. We asked Mr. Hamlett to accept the appeal and he
took it. When Ms. McGuinness asked him to sign a receipt, he
did, I was shocked to learn that the man shouting at us was the
OWCP Regional Director.
Two days later, September 18, 1996, Mr. Hamlett called me
at my office to hold a conference call with Ms. McGuinness. Mr.
Hamlett told us that Jonathan Lawrence, District Director,
Kevin Kates, senior claims examiner, and another claims
examiner were on the call with him. However, only Mr. Hamlett
spoke during the conversation. Mr. Hamlett angrily stated that
his staff was presently engaged in responding to Congressman
Ackerman and others concerning Diane McGuinness. He accused Ms.
McGuinness of calling all over the country. Mr. Hamlett said he
had heard from his head office about her calls.
Ms. McGuinness asked him if she could see her file and Mr.
Hamlett responded that he would furnish her the part of the
file she does not have already via mail. However, Mr. Hamlett
said she would not be permitted to visit the office to review
her file by going to room 740. Mr. Hamlett said that Ms.
McGuinness would be referred to a referee for a decision on her
disability. He said he came to his decision without the use of
the appeal Ms. McGuinness had presented to him September 16. He
said that Ms. McGuinness' appeal was not right.
Ms. McGuinness asked him about her physical therapy being
disallowed, and Mr. Hamlett said he made the decision based on
medical evidence. I asked him to continue the physical therapy
at least until OWCP makes a decision on her pending disability
and he said no. I did not understand his reasoning to stop the
physical therapy prior to the decision of the referee. Even the
second opinion doctors had recommended that she be provided
with physical therapy for at least 12 weeks.
Mr. Hamlett replied that she was injured too long ago to
benefit from physical therapy. It was only effective early in
the injury, he contended. I said that his decision was
inconsistent with the medical evidence and that the physical
therapy should be supported until there is a decision on the
disability. Mr. Hamlett said no.
Ms. McGuinness asked if she could participate in the
selection process of the referee. Mr. Hamlett said he selected
the referee and that Ms. McGuinness can have no participation
in the selection process. Ms. McGuinness protested stating that
regulations permit her to participate in the selection process.
Mr. Hamlett said, no, they don't.
Mr. Hamlett stated that he had alerted the building
management that anyone found on the 7th floor without an
appointment with his office would be escorted out of the
building.
During the entire conversation, Mr. Hamlett spoke in an
angry and loud tone of voice. Ms. McGuinness asked him not to
shout. Mr. Hamlett maintained his angry and loud tone
throughout our conversation.
Mr. Hamlett concluded the call by stating that he would
send Ms. McGuinness her file from June 21, 1996, to the
present, that is the part of the file she did not already have.
I also want to make a comment on two other issues that are
serious drawbacks in dealing with the OWCP for employees I have
represented. The first is that it takes too long to receive
payment after filing a claim after having submitted complete
and necessary medical evidence.
The earliest case which I have handled as representative
was paid in about 3 months. But the norm for the cases I have
handled is at least 6 months or even much longer. Employees
encounter severe hardship waiting to be placed in payment
status. Often there are delays because the wrong forms or
obsolete forms were completed or because employees were not
given the correct forms in the first place by their agency.
For example, I have had many problems with the Social
Security Administration personnel office who take an inordinate
amount of time to process and to send the employee's workers'
compensation claim to OWCP.
The second issue which I mentioned earlier is the inability
to reach anyone at OWCP. The voice mail system is frustrating
and often does not work. More often than not there is no call
back after leaving a message. There is insufficient staff to
process the workload, and employees seem to have become numb by
the backlog of cases they are not able to get to.
I strongly recommend that you support funding the agency
for more personnel to improve customer service and to clear the
backlog of cases.
I just want to mention the status of three cases that I am
currently handling. Case A is an employee with carpal tunnel
syndrome injury. He filed a claim for his injury, and it was
approved. He later returned to work and asked for some
accommodation so that he could perform the job without
incurring injury.
Social Security Administration denied him the requested
accommodation. He had to stop working again due to the pain of
the carpal tunnel and tendonitis injuries. He filed for
compensation November 17, 1998. He has submitted all required
medical evidence, but he is still awaiting approval of his
claim and payment.
Case B is an employee who had stress-related injury, and
she left work in September 1997. She returned to work in June
1998 and continues to work on the job. Her claim was approved
by OWCP, but she still is awaiting payment for that period.
Case C is an employee who was receiving compensation for an
injury she received in a fall while working. OWCP pressured her
to return to work 1 day a week. She did so, but, due to pain,
was unable to show up for the 1-day a week on most occasions.
She again filed for full compensation and OWCP not only denied
that, they decided to deny her entire compensation. Because the
employee could not return to work, she filed for disability
retirement under Office of Personnel Management.
I represented her before the Merit Systems Protection Board
and it was settled with her claim approved. We appealed her
denial to workers' compensation and was recently reversed on
appeal and awarded retroactively. This award covers the part-
time claim, not the full-time claim she filed. She is still
awaiting a payment. She continues to receive disability
retirement benefits while awaiting workers' compensation.
Mr. Horn. That's very helpful and we're going to pursue
some of the questions you've raised with the administration
when they testify. Thank you for bringing those points out.
[The prepared statement of Mr. Riordan follows:]
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Mr. Horn. James Linehan is an attorney. And please identify
where. And proceed with your testimony.
Mr. Linehan. Thank you, Mr. Chairman, for the opportunity
to be here. My name is James Linehan, Jim Linehan out of
Oklahoma City area. I am an attorney, solo practitioner. I
represent disabled claimants before FECA, OWCP, Merit Systems
Protection Board, Social Security Administration, and Federal
courts.
Basically I have submitted a statement. The statement is
out there. I'm not going to read through it, but I will break
it down for you. I find it rather incredible that in this
current city I have never been here before but I understand
this to be a city of attorneys. There is 1\1/2\ million
attorneys in the United States, I know of three or four,
including myself, who will be willing to take on these claims,
these OWCP claims. I find it incredible that out of all of this
city you have to find an attorney in Oklahoma to come up and
speak on these claims. I think that speaks loudly for itself.
I also find it not unusual with the testimony that's just
been entered about the medical treatment status. Presently in
Oklahoma, I know of only one to three neurosurgeons, orthopedic
surgeons, et cetera, who will treat or take on Federal workers'
compensation cases. That's a couple of weeks ago. I do not
think they will take them on anymore.
That leaves no physicians I know of in the State of
Oklahoma who will take on these claims. I know of no attorney
in the State of Oklahoma beside myself who will represent these
claims. The reason why, other than these are bureaucratic
nightmares, I have broken down further. There's two general
issues. In my opinion, the main issue is nonaccountability. The
OWCP, in my opinion, is a self-regulating, self-governing
agency that answers by law to no court of law. It has, thus, no
incentive to answer to anyone. It has no incentive to handle
these cases in the claimant's best interest.
I have broken this down in the statement, but in general
the nonaccountability of Fed Comp OWCP is what leads to no
attorney representation. Essentially there's nothing for an
attorney to do. And how do I handle claims? Basically--and
attorneys tell me never to tell this, but I tell it all the
time any way--people pay me money to tell a government
bureaucrat to do what they're supposed to do in the first
place. That's what it boils down to.
As a result of nonaccountability, there's a distinct lack
of medical treatment. In my opinion, as a result of this
nonaccountability and its effect on medical treatment there's
millions upon millions of dollars being diverted from OWCP to
private sector insurers to cover them.
How does this work? In a typical back case that I see,
$150,000 is spent for operative physical therapy because of the
bureaucratic nightmare the claimants and doctors have to go
through. They have to wait months on end to get medical
treatment authorized, yet the claimant needs the surgery now.
Their doctor says they cannot wait months. The claimant and I
need something. There is no response from OWCP.
Very easy. The claimant and doctor turn it over to private
insurance. Private insurance carries it. They never know it's
Fed Comp. I see this 20, 30, 40, 50 times a year. Multiply it
out, $100,000 per claim, it's very easy math. This is in
Oklahoma alone.
I get calls from Hawaii to New York to Florida to Alaska to
handle these claims. I see this constantly. Can I prove how
much money is being diverted? No. You would have to go to the
medical establishment. I just say this is what I see.
The nonaccountability of the OWCP basically results from
the fact that it answers to no court of law. What does this
mean? This means the OWCP--and I'm always referring to OWCP--
can knowingly and freely act in any manner it wants to with the
claimants. This is what you're hearing testimony before about.
This is what you're hearing testimony today about. There is no
incentive for the OWCP to respond to a claimant. There is
nothing the claimant can do in response. The OWCP can act as it
wants.
In the typical OWCP claim, the claimant is under guidelines
to respond, submit forms this, forms that, within 30 days, 10
days here, et cetera, if you don't, Mr. Claimant, your job will
be terminated. You will lose benefits, et cetera.
These are real life happenings. They lose benefits, they
lose their home, they lose their car, they can't feed kids. In
return, the OWCP is under absolutely no guidelines whatsoever
to respond in any timely manner. The claimant has to respond.
The OWCP never has to respond. That's why you see comment after
comment, no return phone calls, no response to filings, et
cetera.
The other thing in addition to nonaccountability I have
outlined is unilateral control. As a result of unilateral
control that the OWCP has over these claims, I gave two
examples. One is the attending physician rule. Federal courts
across this country, the Social Security Administration, et
cetera, all recognize the attending physician rule.
I have put it in my statement. Basically, what this means
is that the claimant's qualified medical attending physician
prevails over the reports of a hired, paid consultant of the
agency. Speaks common sense. The qualified medical practitioner
for the claimant knows him, has treated him for years, et
cetera.
The agency is a paid doctor, may not ever examine the
claimant, may only look briefly at reports, if at all, or may
examine the claimant, from what I see and as testimony this
morning reflected, 5 to 10 minutes. That's normal.
In OWCP land, the attending physician rule is the exact
opposite. If there's a contest between medical reports, the
paid non-examining, barely examining report of the OWCP doctor
prevails over the attending physician. Thus another incentive
for medical practitioners not to take these claims. They can't
get treatment authorized. They are subversive to whoever OWCP
can shop around and find, $250 to pay for a report to say what
they want. This is how it works in real life. I see this daily.
The other example of unilateral control that I see--and
this is a killer clause I call it, Section 8128(a)(1) of the
OWCP. This is a simple clause and it's a quite deadly clause
for Federal employees. This basically means that the Secretary
of Labor--under this clause if a Federal employee can succeed
in gaining benefits on his or her claim, can gain a scheduled
award, whatever she or he gets, under Section 8128 the killer
clause, the Secretary of Labor or his or her designee, anybody
down the road, down to the claims examiner level, can on own
motion, without notice, without hearing, anything, simply take
the award, take the benefits back, demand repayment. There is
no time limit on this. There is--it's--I just simply call it
the killer clause.
If a claimant is successful, if they didn't tick the OWCP
off enough, they may get to keep their claim. However, in
they're successful, and they tick the OWCP off, and 8128 can
come back in and say simply hand the money back. That's it.
There is no right of review.
As a result of this what I see daily in these claims, I
have one recommendation that will solve a lot of problems.
These are not second-class citizens. This Congress looked at VA
claims back in 1998. It was the same setup. VA acted
unilaterally without control over veterans benefits for years.
Couldn't get attorney representation. I think the old law was
$25 for an attorney.
In 1988, this Congress came in and said enough of this.
Veterans needs to be recognized as full citizens with full
rights. They created the Court of Veterans Appeals. Veterans
now get the right to have Federal court review their claims.
They have attorneys now.
The lower administration, the Veterans Administration can
no longer deny claims randomly, can no longer deny due process.
They have to give hearings. They have to provide reports in a
timely manner. They have to act according to Federal court
rules.
This is what needs to be done for the OWCP. These people
are not second-class citizens. They need the right, they
deserve the right to have Federal court review.
Whether or not they should have their own Federal court, I
leave this up to Congress. I know you're going to get into the
budget, et cetera, I'm not concerned with that. My concern is
only that somehow there be Federal court review. We could use
the present system.
You don't need the ECAB system anymore. If you're saving
money, take it away. It's a useless appeal. It goes nowhere.
They can have their administrative hearing at the lower level,
file the claim, the administrative hearing, much as in Social
Security, if it's denied there, file a claim in Federal court.
It's very simple.
If the Federal court then sees that the OWCP is not
following due process rules regarding notice, production of
documents, everything else you hear constantly in these claims,
it's very simple: Sanctions. A Federal court will start
stomping on the toes that need to be stomped on. That's what it
boils down to. Until then, in my frank opinion, nothing will
change. This will go on. That is my recommendation.
I'm open for questions at any time.
Mr. Horn. I never thought I would hear a lawyer's statement
that I agreed with, so I'm glad you came, because you're the
exception to my rule. I mean, that's a brilliant statement and
I really appreciate it.
Mr. Linehan. Thank you.
[The prepared statement of Mr. Linehan follows:]
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Mr. Horn. Our last one on this panel is Tina Maggio, and
she is the field representative for a respected Member of this
body, Representative Michael F. Doyle.
Ms. Maggio. Thank you Chairman Hornman--Horn. Sorry. I'm
nervous. Thank you, Chairman Horn for allowing me this
opportunity.
I have been working for Representative Mike Doyle's
district office as field representative for 3 years. As part of
my responsibilities, I assist constituents with problems with
OWCP as well as the Social Security Administration, the U.S.
Postal Service, Medicare, and the Office of Personnel
Management.
For OWCP cases, a majority of my contact is with the
Philadelphia District Office. In looking over the history of my
case work, I have handled approximately 30 to 35 cases.
Since each individual case is different and varies in
complexity, I do not believe it would be fair for me to make a
generalized statement regarding the responsiveness of OWCP to
congressional calls or correspondence.
Therefore, I would like to discuss my constituent casework
in which I deal with the Philadelphia District Office. In my
written statement, I outline three case examples in detail
which provide a broader understanding of my correspondence with
the OWCP.
The first example is--I first spoke with this individual on
March 8, 1999. He has an approved medical claim through OWCP
and has been waiting for a prescription reimbursement since May
1998. He was referred to seek assistance from Representative
Doyle by his injury compensation specialist at the Postal
Service because neither she, the drugstore, nor this
constituent could get a response from the claims examiner.
The constituent told me that he was reducing the amount of
his medication because he could no longer afford to pay for the
prescription without getting reimbursed. On March 8, 10, and
16, I contacted the Philadelphia District Office and left a
message for his claims examiner. On March 17, I faxed a letter
to the District Director's office regarding this matter. On
March 25, I called the Philadelphia District Office and spoke
with the assistant in the District Director's office. I told
her that I had left numerous messages for the claims examiner
to call me back, but I had not yet heard from him. She told me
that all congressional calls are supposed to be answered within
1 day.
She put me through to the supervisory claims examiner's
voice mail, and I left a message.
On March 26, I called and left another message for both the
claims examiner and the supervisory claims examiner. On March
29, I finally received a call from the constituent's claims
examiner. This was 3 weeks from when I had initially contacted
OWCP.
At this point, I asked him if he had received any of my
messages. He told me the only message he received was from the
supervisory claims examiner to give me a call back. Once the
claims examiner did call me back, he explained what this
individual needed to do to resolve his prescription
reimbursement problem and everything was taken care of.
The next case I would like to discuss is outlined in my
written statement pertaining to the determination of benefits.
I would like to submit the following pertinent
documentation for the record: First, a letter that the
individual received from the District Director dated October
29, 1998, in which the District Director states that all phone
and written inquiries received from Congressman Doyle's office
are promptly answered.
[The information referred to follows:]
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Ms. Maggio. However, what this letter does not state is the
number of phone messages that were left before my phone calls
were actually returned, nor does it state that the written
responses did not address the issues clearly specified in
Representative Doyle's letters.
In addition, I would also like to submit the letter sent to
the District Director dated August 4, 1998; the response from
the District Director dated August 25, 1998; the letter sent to
the District Director dated September 29--or September 9, 1998;
and the questions faxed to the District Director on September
29, 1998, after the individual's benefits were terminated.
[The information referred to follows:]
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Ms. Maggio. These documentations will demonstrate and
provide insight into the attempts made to supply OWCP with the
correct and factual information.
From these examples, I hope I have clearly demonstrated
some of the problems I experienced in assisting constituents
with their claims. To summarize, I often have problems getting
my phone calls returned for constituent matters that are
urgent. In addition, the response letters that I receive
usually do not answer the specific questions and issues
addressed in Representative Doyle's correspondence.
During my 3 years working for Representative Doyle, I have
come to realize that most people go to their Congressman for
assistance when they have exhausted all avenues on their own in
trying to resolve their problems. When they come to the office,
they are frustrated because they cannot get a response from
their claims examiner regarding their specific questions.
Congressional casework entails getting those answers for
those constituents. I feel that I am, at times, inhibited in
this duty because of the lack of responsiveness and cooperation
from OWCP. Most constituents want their Congressman's
assistance in guaranteeing that they are getting a fair and
equitable determination as well as getting the benefits for
which they are entitled.
When I contact the district office, this is exactly what
I'm trying to ensure. As a congressional caseworker, I'm here
to help people either resolve their problems or answer their
questions regarding OWCP. However, I am only one half of the
whole in assisting a constituent. To do my job effectively, I
need to be able to communicate with the responsive agency to
ensure that the constituent is being treated in a fair manner.
Again, thank you for allowing me this opportunity, and I'll
be happy to answer any questions.
[The prepared statement of Ms. Maggio follows:]
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Mr. Horn. Let me just ask one here. You handle other than
cases such as this. You probably have Social Security cases,
Medicare cases, Internal Revenue cases, Immigration cases.
Ms. Maggio. Right.
Mr. Horn. As you look at all of those agencies with which
you connect on behalf of Representative Doyle, which is the
most responsive and which is the least responsive?
Ms. Maggio. The most responsive is Social Security
Administration. They have a congressional office in Baltimore
that is very responsive. The least responsive is OWCP in
Philadelphia.
Mr. Horn. I thought that would be your answer. Without
question, I served on the Senate staff in the early 1960's.
Then and now, I think most of us say the best run organization
in the U.S. Government is the Social Security Administration.
I had an interesting experience when I came back from a
long day of committee hearings about a month ago, I saw a fax
from an attorney in Long Beach, CA, where Social Security
hadn't come through on the check that they admitted he knew.
So, even good agencies make their mistakes.
So, I wrote out a fax to the Commissioner in Baltimore and
within 18 hours he had a response back to me. The check was out
there, and he apologized on the behalf of the agency for the
stupidity of one of his members. That's a very responsive
operation. So thank you for adding that to our record.
I'm now going to have the vice chairman do the questioning,
Mrs. Biggert of Illinois.
Mrs. Biggert. Thank you, Mr. Chairman.
Ms. Balen, you talked about the time it takes to get a case
number. Is it--what does it entail to get a case number? Isn't
it just an assignment of a number?
Ms. Balen. I don't know.
We're really not in on that part of the process. All we
know is either the patient comes to us with a new injury that
is--they say is workers' comp, and they work for the Federal
Government and we know they have these forms. There's one
particular form that we do fill out, I think it's the CA-16
that, according to my information, is the form that is required
to initiate the process for getting a case number.
What has to happen beyond that point, I really don't know.
I just know it kind of takes a long time. Eventually the
patient is issued--we've had them come in with a little card
with their case number on it. If we have treated the patient
without a case number and we're waiting, holding the bill,
sometimes the patients don't realize that as soon as they get
that little card with the case number, that they need to give
it to us. I don't know if it's not stressed to them, that you
need to go give that to everybody who has helped you with this.
I don't know what process they're having to go through.
Mrs. Biggert. Mr. Linehan said that many times since they
can't get a response from OWCP that they have gone to the
private insurance. Do you find that happening?
Ms. Balen. We typically have not done that because what we
find, at least in my office, all insurances want to know how
the injury happened and where you were. And as soon as you say
it happened at work, they won't touch it. I think that's a good
idea if it would work. We haven't found that it really works.
Typically what we've done if we have a patient who is like
the one in my example in my statement, we usually just go ahead
and do the surgery and try to get the authorization later which
means the patient ends up getting helped, but we end up holding
the bag.
Mrs. Biggert. Since you've had to--the amount of money is
so much lower than other--is it lower than what was paid out in
the State for workers' comp?
Ms. Balen. Oh, far lower. Yes, I've got that in my
statement. Typically the State Worker's Comp allows more than
what we charge, which is kind of backward. But, yes, the USDOL
typically pays less than half of our charge, and the State
Worker's Comp allows more than we charge. So it's a
considerable difference.
Mrs. Biggert. So you just have to write that off.
Ms. Balen. Yes.
Mrs. Biggert. OK. Mr. Riordan, do you find problems with
the numbers also?
Mr. Riordan. Well, the number is assigned once a case
worker looks at a case. I mean, there is a delay. And if you
call before you're assigned a case number, they can't help you,
they won't help you. You have to have the case number. So you
just have to sit and wait until it's looked at.
Mrs. Biggert. Do you find that some people will go through
private insurance rather than the workers' comp, or do you find
the same thing that Ms. Balen said?
Mr. Riordan. Yeah, I don't think they're covered by--if
they're injured at work, they have to file for workers' comp.
Mrs. Biggert. OK. Mr. Linehan, why is it that there's so
few lawyers that are willing--I'm a lawyer also and I've never
done a workers' comp case, but why are there so few that are
willing to take these cases?
Mr. Linehan. A carpenter needs tools to work. An attorney
needs a court to work in. There's no court. There is nothing
really for an attorney to work with.
Basically, I push the claim. I help--claimants come into me
after they have grown so frustrated with the system, they
basically come in to me, throw a file down on my desk that
averages a foot thick and say, ``Take it and run with it. We
don't want to mess with it. We'll pay you whatever it takes to
handle this. Just do something to get this moving.''
That's where I enter the picture. I don't enter the picture
at the beginning of the claim. The claimant is hurt and they
come to me rarely, if ever.
Mrs. Biggert. Are there States that you know of that have
some access to the courts from workers' comp cases?
Mr. Horn. Can we move the mic a little closer to each of
you. It's a little difficult to hear.
Mr. Linehan. I don't understand your--you mean State comp?
Mrs. Biggert. Well, since there's no Federal process to get
into court, are there State courts that take appeals from
workers' comp?
Mr. Linehan. Federal OWCP?
Mrs. Biggert. No, from State.
Mr. Linehan. Oh, every State.
Mrs. Biggert. Every State?
Mr. Linehan. Yeah. Oklahoma, you have the Oklahoma OWCP
system, it's appealable to the State Supreme Court up through
the circuit courts, et cetera.
Mrs. Biggert. Do you know of any reason why this hasn't
happened on the Federal level?
Mr. Linehan. I'm not going to comment, but yeah. It's
just--you've got a system that works as it is now for the
system. It doesn't work for the claimants. From what I see,
claimants who come in are scared to death. They don't want to
buck the system. They don't want it to be known that they're
bucking the system.
So the system continues, it grows on itself. And that's
what's happened here. Nobody is bucking the system. They're
scared. Maybe that's why I'm here. But something needs to
change. And the only change I could see that needs to be done
that will really work--that will end a lot of these problems
overnight--is allowance for Federal court review.
And I don't know of any reason why these civilians should
be treated any differently from any other injured, diseased or
killed civilian in America. But they are. They are. They have
no rights. Zero.
Why is that? That is a question that goes back to the
Congress.
Mrs. Biggert. Thank you.
Ms. Maggio, have you had complaints about second opinions
or doctors? Is that----
Ms. Maggio. Yes. I have a long, involved case. It's
actually the case example, the termination of benefits in my
written statement. His second opinion exam was about 15 minutes
long. The doctor was supposed to be examining his left ankle, I
believe it was his left. He was examining the right ankle.
And he was also examining another injury that he had--
another work-related injury that he wasn't supposed to be
examining. And he sent him for x-rays for the wrong ankle, the
wrong knee. And the OWCP based terminating his benefits on it--
they put the weight of the evidence in that doctor's
assessment.
Mrs. Biggert. Fortunately they weren't doing surgery.
Ms. Maggio. Right. Right.
Mrs. Biggert. In a second opinion, is it usually the same
doctor over and over again in the area that would be giving the
second opinion?
Ms. Maggio. You mean many constituents going to the same
second opinion?
Mrs. Biggert. Yes.
Ms. Maggio. I have seen a couple of the same doctors' names
popping up with different constituents who come to the office.
I don't know how often--I was told that it's a revolving
process where it's kind of they draw a name and they send the
constituent to that doctor.
But I'm not sure how often they go to the same one.
Mrs. Biggert. Do you sense, then, that their decisions are
predetermined?
Ms. Maggio. Yes, I get that feeling. And I believe that--I
have one constituent who knows the FECA manual front and back,
and luckily--because he knows what his rights are. But I think
that at times OWCP tries to send these individuals to doctors,
especially for a referee exam, you cannot go to a fitness-for-
duty doctor for the employing agency.
And I think a lot of claimants are going to doctors who are
also working for their employing agency, which is a problem.
There is a conflict of interest there.
Mrs. Biggert. I know that in so many States the second
opinion is the choice of the injured worker and there has been
some movement to change that; to have the employers have the
opportunity to choose the second doctor. So you don't think
that would be a good idea on the Federal level?
Ms. Maggio. No. No.
In my opinion, I deal a lot with postal workers who are
injured. And I think there's a rush to get people back to work.
And I think that if the employer was able to choose the doctor,
the second opinion doctor, that might have some influence on
the decision of the doctor. It's just my opinion, but I think
it would be best if it was an outside source.
Mrs. Biggert. Thank you.
Thank you, Mr. Chairman.
Mr. Horn. Thank you very much.
Is there any additional point you feel has not been made
that you would like to make? This is the last call on that.
Ms. Balen.
Mr. Riordan.
Mr. Riordan. Well, one earlier question Congresswoman
Biggert asked was why is there a delay in processing, asked one
of the earlier people that testified, why is there a delay.
Well, one of the reasons is the agency has an interest in
keeping the employee off workers' comp because the agency has
to cover the position for a full year. So they want the
employee back to work because that position is open. And their
statistics count against that employee for production purposes.
So they want to pressure the employee to come back to work.
That's why the personnel offices have delays, you know,
delays in processing and filling out the forms and completing
them and sending them to OWCP. That's part of it, any way.
Mr. Horn. Mr. Linehan, anything else you want to say?
Mr. Linehan. No. I appreciate the opportunity to be here.
And if you have any further questions of me, I would be happy
to answer them.
Mr. Horn. Well, if something comes to mind, if you don't
mind we'll do what we do with every other hearing, send you the
question and at this point in the record, we'll give the
question and your answer.
[The information referred to follows:]
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Mr. Horn. So Ms. Maggio, what would you like to add?
Ms. Maggio. I want to state that a lot of the other
agencies have congressional offices that have a staff who
handle congressional calls only.
And OWCP in Philadelphia, they have a congressional phone
line to the District Director's office, but it's the claimant.
There's not a special congressional staff to help. And I know
that the claimant--or the claims examiners, they have a lot--
you know, their workload is backed up. And for them to stop and
explain something to us, just delays their work even further.
So maybe as a possible suggestion for the congressional point,
if there was a staff that we could communicate with, it might
be more effective.
Mr. Horn. That's a good suggestion, I think for any agency,
frankly.
We are now finished with this panel. And I think I will try
to bring panel III forward, if they're present. Patricia
Dalton, the Deputy Inspector General, Office of Inspector
General, Department of Labor, will be accompanied by Amy
Friedlander, Evaluations and Inspections.
And the second witness will be Shelby Hallmark, Deputy
Director, Office of Workers' Compensation Programs, Department
of Labor. And Shelby Hallmark will be accompanied by Sharon
Tyler, District Director, San Francisco Regional Office.
Mr. Hallmark. Chairman Horn, let the record show it's Mr.,
not Ms. here. My name does go both ways.
Mr. Horn. I left it open. Thank you. If there's any staff
behind you that are also going to advise you, we can save a lot
of time if they stand up too and you take the oath, even if you
aren't going to do it. But it will save us from interrupting
the hearing to give oaths every 5 minutes.
OK. Would you stand, raise your right hands, and those
behind you.
Do you affirm that the testimony you're about to give this
subcommittee is the truth, the whole truth, nothing but the
truth.
[Witnesses affirmed.]
Mr. Horn. OK. I saw seven members, four at the table and
three in the audience.
So let us start with Patricia Dalton, the Deputy Inspector
General.
STATEMENTS OF PATRICIA DALTON, DEPUTY INSPECTOR GENERAL, OFFICE
OF INSPECTOR GENERAL, DEPARTMENT OF LABOR, ACCOMPANIED BY AMY
FRIEDLANDER, EVALUATIONS; AND SHELBY HALLMARK, DEPUTY DIRECTOR,
OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR,
ACCOMPANIED BY SHARON TYLER, DISTRICT DIRECTOR, SAN FRANCISCO
REGIONAL OFFICE
Ms. Dalton. Good morning, Mr. Chairman. Thank you for
inviting the Office of the Inspector General to discuss
customer service issues within the Office of Workers'
Compensation Programs at the Department of Labor.
Over the past two decades, the OIG has devoted significant
resources to detecting and preventing fraud and abuse within
the FECA program through our audits, investigations, and
evaluations. The OIG has conducted two recent evaluations of
customer service-related issues within the FECA program.
The first evaluation examined two timeliness issues that
arose during the July 1998 hearing held by this subcommittee.
[The prepared statement of Ms. Dalton follows:]
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Ms. Dalton. The second evaluation examined OWCP customer-
service surveys from 1995 through 1998.
Following this subcommittee's field hearing last summer,
the OIG reviewed the hearing transcript and the allegations
made by a number of claimants.
Specifically, we focused on two outstanding issues. The
first issue is the timeliness of OWCP in responding to claimant
requests for reimbursement of their out-of-pocket medical
expenses.
In examining the issue of claimant reimbursement for out-
of-pocket medical expenses, we found that reimbursements to
claimants represent only 3 percent of all medical bills. OWCP
has established standards for claimant reimbursements at the
28-day level and the 60-day level.
At 82 percent, OWCP's own data shows that the agency fails
short of meeting its 90 percent standard for the 28-day period.
However, it does exceed it's 60-day standard of 95 percent
by paying 96.9 percent of all claimant's submitted bills within
60 days. Recently OWCP implemented an automated bill-review
system which they expect will further shorten the bill
processing time.
The second issue that arose from the July 1998 hearing
concerns were concerns about the timeliness of surgical
authorizations. Our review focused on OWCP's handling of
requests for nonemergency surgery since emergency surgery is
authorized by the employing agency.
Our review disclosed that OWCP has now an automated system
to track the time between requests for nonemergency surgery and
authorizations by OWCP. Although some OWCP district offices are
attempting to manually track this information.
While OWCP indicates the claims examiners are working to
expeditiously process surgical authorizations, we could not
identify an OWCP or industry standard that is used to benchmark
performance. To help improve the system, our report recommends
that a performance standard be established for responding to
nonemergency surgical requests. We believe that this would help
to reduce claimant uncertainty about the process.
We conducted a second evaluation where we examined OWCP's
customer-satisfaction surveys from 1995 through 1998 to
determine whether those surveys are useful tools in assessing
customer satisfaction.
Our review of the four survey reports identified a number
of problems. We found that the 27-question 4-page survey was
too long and difficult to complete. We recommended that OWCP
supplement the survey with focus group data which can
contribute to a more detailed understanding of customer service
and concerns.
We found that some of the five sample groups were over
sampled while others were undersampled. Sampling of a virtually
equal number from these groups does not reflect the
proportional difference in the national claimant population.
We found that the questions asked in 1-year surveys--survey
did not specifically pertain to the sample that OWCP drew.
Consequently, many respondents may not have returned the
surveys assuming that it did not apply to them.
Finally, we also found that OWCP does not retain any data
from the surveys, thereby precluding its verification and the
opportunity for subsequent research.
As a result of the problems with the survey methodology,
OWCP is unable to fully discern whether Federal injured workers
are being adequately served by the process intended to help
them. In order for the survey to be useful to OWCP and better
understand the concerns of injured workers, we made a number of
recommendations to help OWCP in the collection of high quality
data for performance planning and managing customer service to
Federal claimants.
Despite the problems associated with the way OWCP surveys
its customers, the OIG believes that OWCP has the ability to
make the necessary corrections to allow for a more useful
customer satisfaction survey. These changes, if implemented,
will enable OWCP to have a better strategic planning process
and, more importantly, help the agency to better gauge and
address the concerns that injured Federal workers have with the
current process.
OWCP has indicated in their response to the evaluation--to
our evaluation report the intent to make a number of changes in
their survey process.
Mr. Chairman, this concludes my prepared statement. I would
be pleased to answer any questions that you have.
Mr. Horn. We'll hear from the administration then if you
can stay with us, we'll have a dialog here.
Mr. Shelby Hallmark is the Deputy Director for the Office
of Workers' Compensation Programs and the Employment Standards
Administration of the U.S. Department of Labor.
Welcome. A number of people, I think, over you were either
out of town or something is what I'm told. So you're holding
the whole burden. Please proceed.
Mr. Hallmark. Thank you, Mr. Chairman, for the opportunity
to come in to discuss the administration of the FECA program
here today.
As you say, I'm the Deputy Director of OWCP which is the
oversight, the umbrella organization, one of our programs is
the FECA program.
I have with me today Ms. Sharon Tyler who is the District
Director in our San Francisco Regional Office and the largest
of the FECA offices. She's currently acting as the Acting
Deputy Director for FECA here in the National office.
I believe it would be helpful to review how OWCP's
strategic plan and Government Performance and Results Act goals
relate to this whole issue of customer service that we've been
hearing about today and will undoubtedly continue to discuss. I
think that provides a framework for what the organization is
trying to do. And I would like to talk a little bit about that
this morning.
Obviously my written testimony is longer, and I would refer
folks to that for more detail.
Mr. Horn. Well, take your time. I want to give fairness to
the administration. So take your time. We're in no hurry.
Mr. Hallmark. I appreciate that.
Just a general word about the volume of our work. I think
that's an important context to consider. I believe one of the
previous witnesses indicated the degree to which claims
examiners are hardworking and, oftentimes, the issues that are
raised in this kind of context are difficult.
OWCP gets roughly 8 million telephone calls and pieces of
mail each year. With our 950 employees, that factors out to
almost 9,000 contacts per each and every individual in this
program.
We serve roughly 250,000 injured workers, injured Federal
workers----
Mr. Horn. Let me ask at that point just to make sure the
record is clear, you're saying they have 8 or 9,000 calls per
employee?
Mr. Hallmark. Per year.
Mr. Horn. Per year. Now, is that based on the voice mail
where somebody might have called 10 times trying to reach a
human being? What kind of data----
Mr. Hallmark. The 8 million figure represents roughly 2\1/
2\ million telephone calls, which is our estimation.
We don't have an exact number. It's an approximation based
on our telephone systems that provide reports in some cases. We
try to delete from that duplicates of the kind that you're
suggesting. The other 5\1/2\ million items are pieces of mail,
medical bills, and so on.
Mr. Horn. Let me ask the Inspector General, have you ever
checked the telephone numbers?
Ms. Dalton. No, we haven't, Mr. Chairman.
Mr. Horn. Would you take a look at it, and let us know.
Thank you.
Go ahead, Mr. Hallmark.
Mr. Hallmark. Yes, sir.
We serve, as I was saying, about 250,000 injured Federal
workers in any given year. We pay roughly $2 billion in
benefits each year and 96 percent of the cost of this program
is delivered to injured workers and their medical providers
which makes the FECA program perhaps the leanest compensation
system in the country in terms of administrative costs.
Most of the injuries of that 250,000 that I'm describing
are minor ones. And OWCP basically is involved only in making
medical payments for those individuals.
The major source of difficulty, some of which we've heard
about this morning, in those cases--and there are roughly
150,000 of them each year--comes into play when the Federal
agency, the employing agency, fails to send the notice of
injury to OWCP timely. If we have no official notice, we cannot
make a payment. The individual who is from a doctor's facility
was reflecting the difficulties that occur when that happens.
When we do have a case established, we make payments on
medical bills. And, as I say, we receive millions of them, and
about 90 percent of the time, we pay within 28 days. Roughly 95
percent of the time, as Ms. Dalton was indicating, within 60
days.
About 50,000 workers are on long-term monthly wage-loss
replacement benefits from OWCP. For them, we have a much more
intense involvement. We serve as their payroll office as well
as dealing with medical issues and other assistive services.
A smaller group of individuals receive wage-loss benefits
from us on a part-time basis or interim basis during the year,
and then, in most cases, return to work. And a smaller group
still each year, approximately 18,000 cases, are denied. And,
obviously, in those cases many of the difficulties that some of
the previous panels have talked about can occur where there are
obvious differences of opinion regarding the nature of the
case.
A little history would be helpful, I think, in evaluating
the FECA program. We fell behind dramatically in the 1970's in
this program in handling the basic workload, getting cases
adjudicated and making payments. During the 1980's, we
instituted a number of initiatives to get a handle on that
workload.
We established numerous performance measures and standards
to provide a target, and we held our staff accountable for
accomplishing those timeframes. As a result of that, since the
mid-to late 1980's, we have been able to adjudicate our cases
as they come in the door relatively promptly, and we believe
the great majority of cases are, in fact, expeditiously
handled.
Roughly 90 percent of all cases coming in the door are
approved. When the GAO and the OIG have audited our programs,
they have uniformly found that our processes are basically fair
and reasonable.
However, we recognized at the close of the 1980's that
there were a number of continuing problems in this program. And
the strategic plan that I'm about to describe to you which has
evolved as now being a part of the Government Performance and
Results Act effort, basically was developed to address how this
program can transform itself to address the major issues that
we saw.
And those issues really were three major components. One,
customers were frustrated with our ability to communicate with
them effectively; two, we found that the individuals on our
long-term rolls were often staying on the long-term rolls even
when it appeared that their injury was not totally disabling;
and, three, the costs of the program were escalating.
Analyzing those issues, as I said, we chose to try to
transform this program, and our strategic plan basically
amounts to a transformation plan.
The plan basically has four elements. One is return to
work, making injured workers whole by aiding them in getting
back to the work place. We have found that throughout the world
the benefit and importance to society, to the individual, to
the family, of individuals being a productive member of society
is key.
Two, improving overall customer service. Clearly that's the
topic of our conversation most directly today.
Three, enhancing fiscal integrity.
And, four, enhancing agency and union partnerships
throughout the Federal Government to accomplish all of the
above goals.
That strategic plan was, by the way, established as the
partnership activity within our own Department of Labor family.
We believe we've made important strides. And my written
testimony addresses the accomplishments of the organization in
terms of those specific measures that are identified in our
GPRA plan including return-to-work measures, cost-containment
measures, and customer-service measures.
But clearly the customer-service component of our plan is
the most challenging aspect for this program to achieve. We
have made progress. All three of the measures that we report on
for customer service are showing steady improvement, but we're
not satisfied with those improvements. And clearly we will
continue to make enhanced efforts.
Customer service is, by definition, a labor intensive and
very expensive undertaking. And shifting our staff's central
concern or view of what they do in their job from being an
adjudication and paper-processing operation to being an
interactive, dynamic, service-providing operation is a long-
term undertaking. We believe it will take time, it will take
improved tools, and it will take training. We know we have a
long way to go, and we're working hard to get there.
I cite a few examples of what we're doing. Let me just give
you a few of the things that are in my written testimony.
First, we've gotten more staff. In 1999, we received a 10
percent increase in staff which had been sought for a number of
years. It takes more people to be more responsive in a program
like this. And even with that 10 percent increase, OWCP has
among the highest per FTE caseloads of any program of this
kind.
I mentioned earlier that we get about 8,000, 9,000 calls
and letters per person. A 10 percent increase in staff amounts
to an 800 or 900 per person per year reduction, and that's not
small.
That will have a major impact on the ability of this
program to meet the needs of the individuals we heard today and
all the other individuals who come to us seeking services.
[The prepared statement of Mr. Hallmark follows:]
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Mr. Horn. If I might point out, just to get it in the
record, because it is sort of relevant and I was going to ask
it anyhow. You mentioned the 10 percent increase. We are now in
fiscal year 1999, and we are considering fiscal year 2000. Has
your office, program within Labor, and you personally asked for
the appropriate resources in the last 2 years or did you ask
even earlier, like 1993-1994? After our hearing in Long Beach,
I would hope that somebody got the message and said, gee, let's
solve some of these problems. Have you asked for those
resources at your program level?
Mr. Hallmark. I believe the record will show that OWCP has
been seeking substantial additional staff resources at least,
probably before this but certainly starting with the 1992
budget. A small number of staff were approved--additional staff
were approved in 1992. We renewed those requests. A small
additional increment was added in 1995. Unfortunately, in 1996,
our resources were cut; and we were obliged to conduct a
reduction in force.
Mr. Horn. Let me ask----
Mr. Hallmark. So there is a long history of trying to
accomplish that.
Mr. Horn. So your program reports to the Assistant
Secretary for Employment Standards, essentially?
Mr. Hallmark. Correct.
Mr. Horn. He or she, in turn, reports to a Deputy Secretary
of Labor and the Secretary of Labor. Did they approve your
recommendations for more funding to help get at the backlog
that Mr. Riordan mentioned? Where did it go up the line? How
far did it go positively, let's say, from your standpoint? Did
you have the support of the Assistant Secretary and the Deputy
Secretary and the Secretary?
Mr. Hallmark. I'm casting my memory back over the number of
years that we are talking about here which, unfortunately, now
is 7 or 8. My recollection is that, in most of those years, the
requests made by OWCP were, in fact, at least in part passed
forward through the system. I can't say with certainty that
they appeared as part of the President's budget in every case,
but in most cases, yes, they did, at least in part.
Mr. Horn. So the Office of Management and Budget, then,
made a decision one way or the other. And then comes the
question, did the Secretary appeal the decision to the
President, if it was a cut; and what eventually happened?
I don't expect you to carry all those figures in your head
right now. What I want to do is make a little matrix of that
and put it in the record at this point, without objection. Then
I would like to know if the President did make a recommendation
and agreed with your recommendations. What did the Congress do
in 1993, 1994, which was a Democratic Congress, and after that
in Republican Congresses? Did they cut you? Did they add to it?
Was there a difference between the Senate and the House?
If you could just get your fiscal people to give us that
type of chart. And staff here will work with you. They will
know what I'm after here. It is sort of my usual management
routine of, did you get it or didn't you and who sat on it so
we can pin a little responsibility.
If it is Congress' problem, fine, we will deal with them,
the Authorization Committee and Appropriations Subcommittee. If
it is the administration's problem, fine, we will deal with
them. But I would just like to have that--to the degree to
which people asked for the resources they need and justified
it.
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Mr. Horn. Now, in this strategic plan, which was new to all
of the executive branch and was asked for it 5 years before
they had to do it--and I want to go through that now with the
Inspector General. I hope you have a copy of that, do you, of
their strategic plan?
Ms. Dalton. I don't have it with me.
Mr. Horn. Can we give Ms. Dalton a copy of that? I think
the staff here has it.
What I want to do is just go through those charts that you
have in your appendix, and I would like the Inspector General
to take a look at those and see what they could provide.
Because you are doing the right thing in the sense of looking
at the goals you should achieve in a matter of time and dealing
with the cases and so forth.
The gripe I have heard from hundreds of Federal injured
workers is that, too often, they don't get approval to get the
medical therapy that they need if they are going to get back to
work and that, I think, we have just got to focus on, who sits
on those appeals and who lets them go. I think that is one of
the things we need to deal with.
Here on the Department of Labor's Strategic Goal 2, A
Secure Workforce; and your Outcome Goal, Protect Worker
Benefits. Now, you say fiscal year 1999 funding, not known.
Cost accounting for discreet GPRA, which is the Government
Performance and Results Act, which we take very seriously up
here--I think we have to take a look at these in terms of the
Inspector General for Labor as a whole and say: Is there
something else that can be done here? Does what you want to do
in your strategic goals really relate to what your fiscal plan
is when you send it over to OMB and the President as to the
resources you need?
So I just think we need a little analysis of that. Is this
just talk and hokum or is the money there? As they say, where's
the money? And we need to know that. And we need to know if the
money was given. Some agencies never put it on computers, they
put it on people. Others put it only on computers and don't put
it on people. So some of what I would like to do is just have
your two offices work it out, put it in the record at this
point.
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Mr. Horn. I think the question raised by Beth Balen,
administrator of the Anchorage Fracture and Orthopedic Clinic,
is a very good one. To what degree is the power there for the
Office of Workers' Compensation Programs to adjust based on
cost of living? San Francisco is a pretty high living place.
Seattle, we know is; certainly Alaska is.
Do you have the authority to adapt those to the point, Ms.
Balen, made in terms of things they just have to write off
because it isn't reasonable in terms of their own economy?
Mr. Hallmark. Yes, Mr. Chairman. The OWCP fee schedule is,
in the case for the Anchorage institution, is a relative value
fee schedule which we adopted based on--originally based on the
Washington State Workers' Compensation Program System and
subsequently modified to follow that used for the Medicare
program as established by the Health Care Financing
Administration. It is geographically based. That is to say,
there is a component of the system that takes into account cost
of living, cost of business, cost of real estate, et cetera, in
the different geographical regions.
We are aware that some States have higher fee schedules
than the OWCP schedule; others have lower. Our schedule, at
least at the last review we did, fell almost exactly in the
middle. I think there are 23 States below and 26 or 27 States
higher. So we have attempted to be--to address geographical
issues.
Obviously, in the case of Alaska, what we are hearing today
is that, from the perspective of at least this provider, set of
providers, our schedule is too low for that State. It is
something that is a part of our regulatory structure. We can
look at it to determine whether there is a need for adjustment
in that regard, and we will do that.
Mr. Horn. Another point Ms. Balen made, which makes sense
to me, is easier access to claim payment office. What are we
doing on that front?
Mr. Hallmark. If by that she is referring to the issue of
telephone calls and of calling in to address ways of resolving
problems, we have a whole series of things we are trying to do
to accomplish exactly that.
I didn't quite get through my statement, but it addresses
some of the issues that we are trying to work on now in terms
of improved communication systems, improved technology. We're
moving to a fully electronic world which we believe will have a
tremendous impact on customer service.
One of the problems, and cited by some of the panel members
this morning, has been that keeping track of millions of pages
of paper is a very difficult task. We believe that an imaging
system, which we are currently building and expect to implement
in 19--I'm sorry, fiscal year 2000 will greatly improve our
ability to handle a wide range of these issues and especially
medical bills.
All of our offices have communication plans. All are trying
to work on improving the access to telephones. We have, I
believe, in almost every office, if not every office, ways for
individuals to call and receive an individual response.
Sometimes, as we have seen today, that doesn't work. We're
obviously working hard to improve it.
Mr. Horn. One of the questions that came up was the
difficulty of tracking a case if you did not have the case
number. Isn't there a way to solve that with a master index by
name and the last four digits in the Social Security number or
something like that?
Mr. Hallmark. Mr. Chairman, we have that. I think in the
vast majority of cases, the problems that Ms. Balen was
referring to, the Federal agency hasn't sent us the claim. If
they haven't sent us the claim, there's nothing for us to
interface with. We don't have an electronic connection to the
Department of the Interior or the Forest Service to find out
information about an individual who has been injured. It is
only when the notice of injury comes to us that we can create
that electronic record with the name, with the case number,
with other identifiers.
Mr. Horn. On that point, suppose an agency doesn't give
them the forms? We had testimony to that effect. And certainly,
when I met with a number of Federal injured workers, and it has
been mentioned already this morning, a lot of them are U.S.
Postal Service employees, they couldn't even get the form out
of their personnel office. Can't they apply to your agency and
get the forms if we have got the post office in parts of the
country refusing to recognize there's a problem here?
Mr. Hallmark. Well, we are certainly aware of the legal
requirement that Federal agencies have to do this work and to
do it with speed, and where we see--where we have evidence that
is presented to us that, in fact, agencies are knowingly
restricting or obstructing this program, we take action, and we
take it right to the top of the agency to try to get it
attention and get the problem solved. In fact, our IG conducted
several years ago a joint study with the Inspection Service of
the Postal Service to address and try to pinpoint exactly that
kind of problem. So we are anxious to address that kind of
issue, and we do.
I would note, however, that oftentimes we do go back to the
agency, and we heard one individual replying today who had
trouble, apparently, getting information from the agency about
the fact that he was an employee. We can only do so much. We
can go to the agency and ask them. We are not an enforcement
agency. We cannot force a Federal agency to hand us materials
which they don't do.
Obviously, at a certain point we can move to a U.S.
attorney and seek to achieve some sort of prosecution, but our
U.S. attorneys are also busy individuals, and it is difficult
to make that kind of case.
Mr. Horn. Other points that Ms. Balen made, which certainly
are those that we have had, less paperwork for the patient,
employer and physician to complete, which would speed up the
entire process, make it less prone to error; and she
elaborates, overall simplification of the process by reducing
the length and number of forms; the authorization process,
whereby a condition is accepted as work-related; and
improvement in access to the claims office.
There may be States with workers' compensation systems,
such as the State of Washington, just south of Alaska, which
would work well and might be used as a model. Has the agency
looked at some of the State systems and how they have speeded
this up so the worker is not dangling out there not knowing
whether they are going to be covered or not covered or the
medical bills are going to be paid? What are we doing to just
help the average citizen that is a Federal worker?
Mr. Hallmark. We have looked at the information that is
available for a number of State systems. There is something of
a paucity of actual performance information about how the
different States work. Some of that information is proprietary
because the systems are private, insurance-driven systems.
We have a number of initiatives in place to do many of the
things that Ms. Balen was referring to.
We have just recently moved to automated receipt and
payment of pharmacy bills. That started in July 1998. We
believe that will--as the IG report indicates, we believe that
will significantly improve service to claimants who will no
longer be required to make out-of-pocket payments because the
pharmacy can readily and quickly send the bill to us
electronically and receive payment directly from us.
We are likewise working on electronic billing processes for
physicians and for hospitals, and we are looking at electronic
transmission. We are working with the Postal Service, VA and
DOD right now to ensure that we can get the electronic claim in
the first place.
All of these things will not only speed up the process,
they will cut down the amount of confusion with respect to
submitting forms and other paper. It is understandable that a
doctor in Alaska, who may not deal with OWCP that much, knows
the laws and the procedures in Alaska but the OWCP Federal
process is different. So we want to try to smooth that.
I would also note that where we receive the information
from a doctor with regard to the medical evidence that we need,
if we receive it in the form of notes or other materials, if it
is the information we need, we are not going to send that back
and say, no, no, it must be on this form and you must fill out
box 3. We have to have the claim in the first place, but once
we have the claim, we do our best to try to use the information
that we can, in fact, procure.
Mr. Horn. Mr. Linehan noted in his recommendations that we
just allow the Federal employees to have a basic right of
Federal Court review of the workers' compensation claim and the
due process? Has the administration thought of recommending
that?
Mr. Hallmark. I can't speak for the administration as a
whole.
Mr. Horn. Well, let's say the administration of the agency
and then move it to the administration of the Department and on
up.
Mr. Hallmark. It is OWCP's view that the FECA program is
structured along the lines of the model workers' compensation
programs as they were created in the early part of this
century. The intent of workers' compensation was to be a no-
fault nonadversarial program. The intent was to ensure that
benefits could be delivered quickly to injured workers without
the attendant difficulties that had been experienced in the
tort system.
Now, many State systems have moved back in the direction of
litigation and the kind of lawyerly process that Mr. Linehan
suggested. We don't believe that's necessarily the best policy
approach. The reason why OWCP delivers 96 percent of its $2
billion benefits to the injured workers and their medical
providers is because we have a straightforward, nonadversarial
process.
Now, obviously, we want to make it work better; and we are
anxious to make it work better.
Mr. Horn. I guess I would ask, is it really nonadversarial?
It sounds like it is the clientele versus bureaucracy and it is
fairly adversarial.
Forget the applause, please.
It just seems to me that the job of the agency must,
overall, be fairness. You don't have to save the pot of money,
and I hope that isn't the way you are judged. What you have to
do is make sure that if people have an injury that is work
related that they can be processed and have the benefits that
the law provides. And as an administrative agency, it seems to
me, if I were the head of it, I would be saying, hey, folks,
there has to be a turnaround here in attitude.
It is exactly the same problem that Commissioner Rossotti
faces in the Internal Revenue Service when we had long rows of
witnesses from all over America before the Ways and Means
Committee and Senate Finance that said, hey, we have been
treated like dirt. We have a problem here. Who is going to do
anything about it? Well, Congress did do something about it.
They put an advisory board in.
Of course, the President hasn't submitted one name yet, and
he fought us tooth and nail on doing anything to change the
bureaucracy, but he signed the bill. And it could be that we
need to do that to a number of agencies, maybe yours included,
with an outside board that could look at and be available for
complaints when people aren't served.
Now, I realize there are a lot of people that don't deserve
the benefits. I had that under workers' comp. I understand
that. And there's a lot of people that think the government
owes them a living, and when they retire they decide to figure
out some injury to get additional benefits. I know all of that,
and I have been through it as an employer, as head of a
university.
It was very simple. We just told our lawyers, if we are
going to have this nonsense and they are fraudulent claims,
let's make them know that they're in for a battle. And once you
do that, usually that type of person that thinks they can get a
few bucks when they aren't injured, or faking an injury, that
type of person usually is going to go somewhere else and not
take on the people.
But, again, that becomes an adversarial process. Sometimes
it has to be, and you will let a neutral, such as a judge,
decide what was right here and what was wrong. All I am saying,
and I think all Congress would say is, look, if people who are
Federal employees have injuries, we want to treat them fairly.
And your administration here of the agency, we have got to deal
fairly. And if it means firing a few Regional Directors and
firing a few caseworkers, I realize that's hard with the Civil
Service, but maybe the whole thing should be privatized. I
don't know, but you have got to get responsiveness out of the
bureaucracy.
I have found that usually, when you set the goals, the
people will respond if they are fair and want to do the right
thing. But there are always some in every organization, I don't
know about this one, yours, anyone down the street, that people
just don't get the message that the clients aren't out there
just so they can have a job. They have a job so they can help
people, and that's what we need to focus on here.
I guess I would ask you this: Do you make your Federal
Employees' Compensation Procedure Manual available to injured
Federal workers to help assist them through the appeals
process? What is the policy of the agency on that?
Mr. Hallmark. Well, we have the Federal procedure on the
Internet. It is available. We have recently updated our
regulations to make them in a question-answer format to make
them more usable for injured workers and their representatives
as a means for pursuing their claims straightforwardly.
And I need to take a little issue with Mr. Linehan's
position that there are no rights for individuals and that no
one is looking over OWCP's shoulder. We have well-established
and multiple avenues for appeal within the agency and outside
the agency to the Employees' Compensation Appeals Board. It
does provide an objective review, and as do the
reconsiderations and oral hearings that are provided within the
agency.
In addition to that, an individual who can show or allege
that a violation of their constitutional rights has been
effectuated by OWCP can take their case to the District Court,
and some do. So it is not the case that we are without any
oversight. In fact, we have, as I said, I believe a reasonable
process.
Mr. Horn. Well, you have two appeal processes, don't you?
Mr. Hallmark. Actually, three.
Mr. Horn. Three? Because I think there is a confusion out
there as to whether these are real appeals. And maybe I'm all
wrong on that, but one does the same thing the other does, and
is it really an outside appeal?
Mr. Hallmark. The three processes are first,
reconsiderations, which are done within the district office.
When a reconsideration is done, it is done by a claims examiner
who has had no involvement in the case previously; who looks at
it with fresh eyes.
I don't have the data right now, but I think that something
over 35 percent of reconsiderations, possibly higher than that,
result in the original decision being overturned. So we have
good reason to believe there are fresh eyes being applied.
Second, the oral hearing is done by staff located here in
the national office who travel to the site and do a complete
review, including presentation of evidence. Something in the
neighborhood of 30 plus percent of those cases are overturned
and sent back for further processing because they have found
that an error was made.
Third, the ECAB, likewise, is an independent organization
which reviews the entire case file as it is presented, and I
believe something less than 30 percent of those cases are
overturned.
So the process from our perspective, appears to work.
Obviously, we continually monitor it, and we look at the
quality of our cases. We have an elaborate accountability
review process, and one of our customer service measures is to
ensure that our decisions that we are making in the first
instance are correct or according to procedure. We measure that
very closely, and we report that as part of our GPRA plan.
Mr. Horn. Let me continue on this appeal process. You were
probably in the room when the Sheila Williams case was
mentioned. She is Acting Director, and Mr. Chamberlin phoned
and said, could you explain the appeal process to me? Now, all
I can say is if it is so simple why would she have to do
research to answer Mr. Chamberlin's question?
Mr. Hallmark. Well, I can't speak to the exact
circumstances, obviously, in that particular case. Every single
case is different. The response that one needs to make in a
given case may have to do with the particular appeal rights
that were issued by the previous decider. And, in this case, it
is possible that the appeal rights that were issued by the
decider were incorrect.
Ms. Williams happens to be in the room here this morning,
so I don't know whether she can speak, and we are governed by
the Privacy Act in discussing individual case issues, so I
don't want to go too far down the line of suggesting specifics.
Mr. Horn. We would be glad to have a letter and put it at
this point in the record if she feels she has been misquoted,
et cetera.
Mr. Hallmark. And if I could just beg your indulgence, I
would say that Ms. Williams, who is our Deputy Director for
FECA and is Acting Director right now, in the regular course of
her work talks with hundreds of claimants, their
representatives, congressional staff and so on on a regular
basis. And she is--I believe we could find many, many
individuals who would tell you that she is not only gracious
and helpful but that she goes out of her way on every single
day to provide the kind of services that I think you would want
if you were an injured worker. I think that is true of Ms.
Williams, who is an extraordinary person; also true of the vast
majority of our staff who are working very hard.
Mr. Horn. Well, as I remember the testimony, it wasn't that
she wasn't helpful, it was that she said I'm going to have to
do research on this and never got back to the individual. So we
need to straighten that out with a letter.
Mr. Hallmark. We will certainly reply for the record.
Mr. Horn. All right. Now, I guess I would ask Mr. Hallmark,
the testimony regarding Regional Director Hamlett, and that has
been confirmed by two witnesses, does the agency plan to have a
little--I guess in China it would be Mao, putting people in the
fields to get right with what they ought to be doing as opposed
to what they are doing. So did that shock you, that the
Director would come screaming down the hall and all that?
Mr. Hallmark. I had been informed by Mr. Hamlett that this
event occurred. He had advised me somewhat differently about
the circumstances. We will certainly investigate.
Now, having heard in some detail what we heard this
morning, we will certainly investigate to determine what
actually happened, both in the event that occurred in the
hallway and on the conference call that was also described at
some length in Mr. Riordan's testimony.
Clearly, our folks try to be as courteous and sympathetic
as they possibly can be. There are occasions where emotions run
high. If we are discourteous in ways that are inappropriate, we
need to take remedial action. Whether it is a reeducation
process, as you suggest, we will have to determine.
Mr. Horn. With Ms. McGuinness' testimony there was also the
testimony about District Director John Lawrence, and that has
been submitted for the record. It will be transcribed and we
will send you a copy of it, and you can ask us, or please file
if you think further comment is necessary on that to clarify it
one way or the other from the agency's standpoint.
Mr. Hallmark. Yes, sir.
Mr. Horn. Now let me go to what I regard as a very serious
aspect, and that is the subcommittee has learned of adverse
personnel actions that were initiated against Joseph Perez, a
former hearing representative for the Office of Workers'
Compensation Programs. We hope there has not been any negative
recourse taken against Mr. Perez for his whistle-blowing
activity or his testimony before the subcommittee last year.
The timing of this has us concerned. Do you know anything about
it?
Mr. Hallmark. As it happens, I do. I'm part of the process
that has been involved in the particular instance you talk
about.
Again, under the Privacy Act I don't know that it is
appropriate for me to get into specific discussions with regard
to personnel actions. I certainly would be willing and eager to
provide information for the record, but I certainly don't want
to violate the Privacy Act in this hearing.
Mr. Horn. Well, we will be glad to insert your comments in
the record at this point without objection.
I will tell you that when congressional witnesses are
sanctioned by agencies when they are telling the truth, it
makes us very unhappy up here; and that happiness or
unhappiness only goes away when we cut about half the
administration's office budget and see how they like that for a
while.
But I have told one Cabinet officer if he fires that
Inspector General he will be up here quite often under
subpoena. Inspector Generals are there to do their duty, and
they have done a great job over the last 20 years, and all I
can say is I would not punish a witness before a congressional
committee. That upsets people. And I don't care how they cover
it up, it looks that way.
And I would just say if you have got an answer for it,
great, we will file it for the record, we will take a look at
it, but we don't think that's the way you treat people. We have
had that problem in the Pentagon in spades over the years. So
that doesn't make us too happy.
Let's see. We have about one more item, and then I think we
can call it a day. Some of them we will send down to you
because it will take staff work to give us an answer.
The Inspector General's report on the medical
authorizations, Ms. Dalton. The subcommittee has heard many
complaints from injured Federal workers, as I have noted
earlier, that it takes an unreasonably long time to receive
authorization for a surgery, that sometimes their immediate
injury gets worse during the waiting period. Does the Office of
Workers' Compensation Programs set standards to measure how
quickly and efficiently it is making decisions?
Now, Ms. Friedlander, I think you are supposed to be the
expert on evaluations for the Inspector General. What can you
do to educate us on how do they measure their performance and
do you feel the claimants are well informed through the
process?
Ms. Friedlander. Mr. Chairman, it appears to us that
claimants are confused at times, and we make this
recommendation with the hope that if claimants get a prompt
response, they at least know that the agency has heard them.
We heard today information confirming that suspicion that
we have, and we think that this first step, if we tried it, and
then we measure the results of that, would tell us whether we
need to take any further steps or whether this is enough.
Mr. Horn. Any comments to add to that, Ms. Dalton?
Ms. Dalton. No, I think I would just concur with what Ms.
Friedlander had to say. As we looked at the data we did not
find serious problems. We had looked at 69 cases out of the
Philadelphia region and, on average, an authorization was
provided within 26 days. However, there were a number of
outliers in that group.
Mr. Horn. On the survey in general, I guess I would ask, as
you looked at the customer service at the Office of Workers'
Compensation Programs, do you find their customer service
survey a useful tool for providing information about customer
service? I mean, how many questions do you need? I'm familiar
with this with faculty evaluations by students, and I have
found that really about one or two questions is all you need to
find out what's really going on in the classroom. How about
you? What's the situation here?
Ms. Dalton. We found the survey, as I said in my testimony,
to be too long, too complex, and that it certainly could use
significant improvements. And we made a number of suggestions
to the Office of Workers' Compensation Programs on how to go
about that as well as to improve the way that they are drawing
their sample to get more reliable information. The way it is
being done right now we did not feel it was a good measure of
customer satisfaction, and certainly there is room for
improvement.
Mr. Horn. Well, I would agree with you on that, and we have
had submitted to us from people all over the country a lot of
different surveys, and we will put an exhibit in the record on
those surveys and what they show us one way or the other. So we
thank you for going over that.
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Mr. Horn. Mr. Hallmark, is there anything you would like to
sum up on? Feel free. We will keep the record open, obviously.
Mr. Hallmark. I wanted to speak for a moment about the
medical authorization issue. We appreciate the work that the IG
has done in this area. Prior to this, we had established in
each Regional Director's performance agreement a requirement
that they begin this year to capture data with respect to the
whole range of medical authorization, following in part on the
issues that were raised last summer in Long Beach.
We intend to look at that data closely and determine what
areas, if any, we think need to have a performance standard and
what that would look like. It is a complex issue because some
things can be done very quickly, other things require a second
opinion. If it is a back surgery and a complex issue, we don't
want to establish a standard that would, in effect, not fit the
circumstance where our most significant problems are. So that
is the tack that we have taken within OWCP, and we expect to
address it.
Again, I would say, in summary, that I think we are aware
of the need to provide much better customer service. We have
projects in place to try to do that.
One of the issues that I believe you mentioned yourself,
Mr. Chairman, about the attitude of workers in this program, is
something that we have been working on and are continuing to
work on. As I say, this is an effort on our part to transform
ourselves to become a dynamic service entity; that is, to view
ourselves as service providers rather than gatekeepers. We are
going to get there, and we are working very hard to do that.
There are some cases where denials occur, where disputes,
oftentimes long-standing disputes, between the employee and
their employing agency are intense. They get transferred to the
OWCP environment when a denial occurs or information doesn't
change hands, and we end up with the difficulty of trying to
address those cases. It is a very hard thing for us to do.
I think our folks struggle very manfully--and womanfully--
to try to accomplish it, and we are going to continue to try to
make that performance better.
Mr. Horn. Very good. At this time I would like to place in
the record a statement from John D. McLellan, Jr., a former
Director of the FECA Program. The statement outlines his
thoughts concerning the administration of FECA at the OWCP.
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Mr. Horn. I would also like to read into the record the
people that helped develop this hearing besides the Federal
injured workers that we heard from from all over the country,
which were very helpful.
J. Russell George, the staff director, chief counsel, who
is not here right now, and that's for the Government
Management, Information, and Technology Subcommittee.
On my left, your right, is the gentleman that prepared most
of the work on this hearing, Matthew Ebert, an excellent senior
policy adviser to the committee.
And Bonnie Heald, director of communications, is back here;
and next to her is Mason Alinger, our clerk for putting this
all together. Faith Weiss, minority counsel, is over here; and
Earley Green, minority staff assistant.
We had two court reporters today, Julia Thomas and Pam
Garland; and we had two sign language interpreters, Jan
Nishimura and Earl Fleetwood.
We thank you all for your help; and, with that, this
hearing is adjourned.
[Whereupon, at 12:38 p.m., the subcommittee was adjourned.]
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