Office of Workers' Compensation Programs
Further Actions Are Needed to Improve Claims Review Gao ID: GAO-02-637 May 9, 2002The Department of Labor's Office of Workers' Compensation Programs (OWCP) paid $2.1 billion in medical and death benefits and received about 174,000 new injury claims during fiscal year 2000. GAO found that (1) one in four appealed claims' decisions are reversed or remanded to OWCP district offices for additional consideration and a new decision because of questions about or problems with the initial claims decision; (2) OWCP set a goal of informing 96 percent of claimants within 110 days of the date of the hearing; (3) nearly all doctors used by OWCP to provide opinions on injuries claimed were board certified and state licensed, and were specialists in areas consistent with the injuries they evaluate; and (4) OWCP has used mailed surveys, telephone surveys, and focus groups to measure customer satisfaction. The Labor inspector general is monitoring fraud within OWCP's workers compensation program and using the claims examiners as one source in identifying potentially fraudulent claims.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-02-637, Office of Workers' Compensation Programs: Further Actions Are Needed to Improve Claims Review
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United States General Accounting Office:
GAO:
Report to the Chairman, Subcommittee on Government Efficiency,
Financial Management and Intergovernmental Relations, House of
Representatives:
May 2002:
Office Of Workers' Compensation Programs:
Further Actions Are Needed to Improve Claims Review:
GAO-02-637:
Contents:
Letter:
Results in Brief:
Background:
Scope and Methodology:
Evaluation Problems, Case File Mismanagement, and New Evidence Are
Reasons Appealed Claims Decisions Are Reversed or Remanded:
OWCP Has Established a Hearing Standard That Allows 110 Days for
Claimant Notification:
OWCP's Physicians Were Board Certified, Licensed, and Had Specialties
Consistent with the Injuries Examined:
OWCP Uses Several Methods to Identify Customer Concerns and Assists
DOL's IG in Addressing Potential Claimant Fraud:
Conclusions:
Recommendation for Executive Action:
Agency Comments and Our Evaluation:
Appendixes:
Appendix I: OWCP's Claims Process:
Appendix II: Scope and Methodology:
Appendix III: Sampling and Estimation Methods and Sampling Errors:
Appendix IV: Comments from the Department of Labor:
Table:
Table 1: Sampling Error of Estimates for Appealed Claims Decisions to
ECAB and BHR between May 1, 2000, and April 30, 2001:
Figures:
Figure 1: Percentage of Appealed Claims Decisions Affirmed, Remanded,
and Reversed by BHR or ECAB during Period from May 1, 2000, through
April 30, 2001:
Figure 2: Claims Process:
Abbreviations:
ABMS: American Board of Medical Specialties:
BHR: Branch of Hearings and Review:
DOL: Department of Labor:
ECAB: Employees' Compensation Appeals Board:
FECA: Federal Employees Compensation Act:
IG: Inspector General:
OWCP: Office of Workers' Compensation Programs:
PHS: Public Health Service:
[End of section]
United States General Accounting Office:
Washington, D.C. 20548:
May 9, 2002:
The Honorable Stephen Horn:
Chairman, Subcommittee on Government Efficiency, Financial Management
and Intergovernmental Relations:
Committee on Government Reform:
House of Representatives:
Dear Mr. Chairman:
During fiscal year 2000, the Department of Labor's (DOL) Office of
Workers' Compensation Programs (OWCP) paid about $2.1 billion in
workers' compensation benefits to federal employees, including wage
loss, death, and medical benefits stemming from job-related injuries
and OWCP received approximately 174,000 new injury claims. When a
federal employee incurs expenses or misses significant time from work
due to on-the-job injury or illness, the employee may submit a claim
to OWCP for workers' compensation. If all or a portion of the claim is
denied by OWCP, the claimant may appeal the decision. During the last
few years, a number of issues related to OWCP's adjudication process
for appealed claims decisions have been raised in related
congressional hearings, including instances where federal employees
felt their claims had been improperly denied. As a result, you
requested that we examine and provide you with information on
selective aspects of the OWCP adjudication process, specifically:
* the frequency and primary reasons why appealed claims decisions are
reversed or remanded to OWCP district offices for additional
consideration;[Footnote 1]
* the extent to which OWCP is complying with the Federal Employees
Compensation Act's (FECA) requirement to inform claimants within 30
days about the outcomes of appeal hearings;
* the extent to which OWCP is using certified and licensed physicians
to provide opinions on injuries claimed and whether the physicians'
areas of specialty appear to be consistent with the injuries they
evaluate; and;
* methods OWCP uses to identify customer satisfaction and potential
claimant fraud.
Results in Brief:
We estimate that approximately 25 percent of 8,100 appealed claims,
for which decisions were rendered during the period May 1, 2000,
through April 30, 2001, were either reversed or sent back (remanded)
to OWCP district offices for further development due to questions
about or problems identified with the initial decisions. OWCP claims
decisions summaries indicated these problems predominantly involved
either (1) improper evaluations of medical or nonmedical evidence or
(2) mismanagement of claim files. When claims are initially denied and
then later approved upon appeal, claimants must manage without
benefits during the appeals process, which can involve significant
periods of time and additional expenses to the claimant, such as
representatives' fees, that are not reimbursable. OWCP monitors
reversed or remanded claims decisions to identify trends and problems
with district office decisions and provides information to claims
examiners on reversals and remands. However, OWCP does not have
information on the frequency of specific reasons for these reversals
and remands. Such information might better enable OWCP and its
district offices to understand factors contributing to these reversals
and remands and to address their underlying causes, possibly reducing
current levels of reversals and remands. We are recommending that the
secretary of labor require the director of OWCP to examine steps now
being taken to determine whether more can be done to identify and
track specific reasons for remands and reversals”including improper
evaluation of evidence and mismanagement of claim files”and address
their underlying causes.
FECA requires OWCP to inform claimants of their decision on appeals
within 30 days after the related hearing. OWCP has interpreted this
requirement in a manner which allows certain administrative steps to
occur over a longer period of time. They have factored in time to
allow both the claimants and employing agencies to comment on hearing
transcripts and conduct other activities it believes are important to
complete following the hearing date before rendering its final
decisions on appeals. Considering these factors, OWCP has established
a goal of notifying nearly all claimants of final claims decisions
within 110 days of the hearing date. We estimate that 92 percent of
claimants are notified within this timeframe.
While FECA does not require contracted physicians used by OWCP to be
board certified or state licensed, our review found that OWCP is
generally adhering to its own requirements that physicians it uses to
settle disagreements between a claimant's and OWCP's second opinion
physicians are (1) certified by medical boards in their areas of
medical specialty, and (2) licensed by state authorities. In addition,
we estimate that 98 percent of the time, OWCP-contracted physicians
were specialists in medical areas that were appropriate for the types
of claimant injuries they examined.
OWCP has used surveys and focus groups to monitor customer
satisfaction. Regarding the overall program, a survey taken in 2000
resulted in a 52 percent satisfaction rate and a 47 percent
dissatisfaction rate. The level of claimant satisfaction indicated in
their survey responses for specific issues or aspects of the program
has been largely mixed (i.e., more positive responses for some
questions and more negative responses for other questions).
To prevent and deter fraudulent activity, DOL's Office of the
Inspector General (IG) follows up on concerns raised by examiners and
other sources and, where appropriate, conducts investigations of
claimants and medical providers suspected of defrauding the program.
For fiscal years 1998 through 2001, approximately 500 investigations
were opened, resulting in 212 indictments and 183 convictions.
Background:
FECA (5 USC 8101, et seq.) authorizes federal civilian employees
compensation for wage loss and medical and death benefits for
treatment of injuries sustained or for diseases contracted during the
performance of duty. OWCP is responsible for administering and
adjudicating the federal workers' compensation program.[Footnote 2]
During fiscal year 2000, OWCP's paid workers' compensation totaled
about $2.1 billion including wage loss, medical, and death benefits
stemming from job-related injuries and OWCP received approximately
174,000 new injury claims.
A workers' compensation claim is initially submitted to an OWCP
district office and is evaluated by a claims examiner. The examiner
must determine whether the claimant has met all of the following
criteria for obtaining benefits:
* The claim must have been submitted in a timely manner. An original
claim for compensation for disability or death must be filed within 3
years of the occurrence of the injury or death.
* The claimant must have been an active federal employee at the time
of injury.
* The injury, illness, or death had to have occurred in a claimed
accident.
* The injury, illness, or death must have occurred in the performance
of duty.
* The claimant must be able to prove that the medical condition for
which compensation or medical benefits is claimed is causally related
to the claimed injury, illness, or death.
Since medical evidence is an important component in determining
whether an accident described in a claim caused the claimed injury and
if the claimed injury caused the claimed disability, workers'
compensation claims are typically accompanied by medical evidence from
the claimant's treating physician. Considerable weight is typically
given to the treating physician's assessment and diagnosis. However,
should the OWCP claims examiner conclude that the claimant's recovery
period seems to be outside the norm or that a better understanding of
the medical condition is needed to clarify the nature of the condition
or extent of disability, the examiner may obtain a second medical
assessment of the claimant's condition. In such instances, a second
opinion physician, who is selected by a medical consulting firm
contracted by an OWCP's district office, reviews the case, examines
the claimant, and provides a report to OWCP.
If the second opinion physician's reported determination conflicts
with the claimant physician's opinion regarding the injury or
condition, the claims examiner determines if the conflicting opinions
are of "equal value."[Footnote 3] If the claims examiner considers the
two conflicting opinions to be of equal value, OWCP appoints a third
or "referee physician" to evaluate the claim and render an independent
medical opinion.
Claims may be approved in full or part, or denied. For example, a
claimant may be paid full wage loss benefits and provided physical and
vocational rehabilitation services, but denied a request for a medical
procedure. When all or part of a claim is denied the claimant has
three avenues of recourse: (1) an oral hearing or a review of the
written record by the Branch of Hearings and Review (BHR), (2)
reconsideration of the claim decision by a different claims examiner
within the district office, or (3) a review of the claim by the
Employees Compensation Appeals Board (ECAB).
Under the first appeal option, the claimant can request an oral
hearing or a review of the claim's written record by a BHR hearing
representative. At an oral hearing, the claimant can testify in
person, be represented by a designated representative, or submit
written evidence. The employing agency may attend but not participate
unless invited to do so by the BHR hearing representative or the
claimant. For either a hearing or review of the record, the hearing
representative decides whether to affirm the initial decision, reverse
the initial decision and administer benefits to the claimant, or
remand the claim to the district office for a new decision.
A second option to the claimant is to request reconsideration of the
decision at the district office. During reconsideration, the district
office reevaluates its initial decision and the decision-malting
process to ensure that it properly considered all facets of the claim.
This reconsideration is typically performed by a senior claims
examiner who played no role in malting the original decision. After
the entire record and resulting decision are reevaluated, the claims
examiner decides whether to affirm the initial decision denying all or
part of the claim or to modify the initial decision.
Generally the final appeal available to the claimant is made to the
ECAB. The ECAB consists of three members who are appointed by the
secretary of labor. The board was created within DOL but outside OWCP
to give federal employees the same administrative due process of law
and appellate review that most nongovernment workers enjoy under
workers' compensation laws in most states. While regulations prohibit
the claimant from submitting new evidence during this phase, the ECAB
is not limited by previous "findings of fact" by the district office
or BHR and can therefore reevaluate the evidence and determine if the
law was appropriately applied. As with the other appeals levels, ECAB
renders decisions that affirm the district office's decision, remand
all or part of the claimant's appealed decision to the district office
for additional review, or reverse the district office's decision.
While OWCP regulations do not require claimants to exercise these
three methods of appeal in any particular order, certain restrictions
apply that, in effect, encourage claimants to file appeals in a
specific sequence”first going to the BHR, then requesting another
review at the OWCP district office, and finally involving the ECAB.
For example, the regulations state that a claimant seeking a BHR
hearing on a decision must not have previously requested
reconsideration of that decision regardless of whether the earlier
request was granted. However, the BHR director said that claimants
may, and sometimes do, choose to request a district office
reconsideration first because the decisions on claims appealed through
reconsideration are made in a more timely manner.[Footnote 4] Not
withstanding the regulatory provision, OWCP explained that a claimant
may request a discretionary oral hearing by BHR after receiving a
reconsideration decision and both OWCP procedures and ECAB precedent
require OWCP to exercise its discretion in considering such a request.
Appendix I contains a graphic presentation of OWCP's claims
adjudication process.
Scope and Methodology:
We performed our work in Washington, D.C., from March 2001 through
April 2002 in accordance with generally accepted government auditing
standards. To assist us in addressing the objectives, we reviewed a
statistical sample of more than 1,200 of the estimated 8,100 appealed
claims for which a decision was rendered by OWCP's BHR or DOL's ECAB
during the period from May 1, 2000, through April 30, 2001, to
determine the following: (1) the primary reasons why appealed
decisions were reversed or claims were remanded to the OWCP district
offices for further development, (2) the amount of time OWCP took to
inform claimants of hearing decisions, (3) whether OWCP used certified
and licensed physicians whose areas of specialty were consistent with
the injuries evaluated, and (4) the methods OWCP uses to identify
customer satisfaction and potential claimant fraud. Additional
information on the scope and methodology of our review and approaches
for addressing these and other objectives is presented in appendix II
and confidence intervals and other statistical information regarding
our work are presented in appendix III.
Evaluation Problems, Case File Mismanagement, and New Evidence Are
Reasons Appealed Claims Decisions Are Reversed or Remanded:
From May 1, 2000, to April 30, 2001, decisions were rendered by BHR or
ECAB on approximately 8,100 appealed claims. BHR or ECAB affirmed an
estimated 67 percent of these initial decisions as being correct and
properly handled by the district office, but reversed or remanded an
estimated 31 percent of the decisions[Footnote 5]--25 percent because
of questions or problems with OWCP's review of medical and nonmedical
information or management of claims files, and 6 percent because of
additional evidence being submitted by the claimant after the initial
decision.
The following figure characterizes the outcome of BHR and ECAB reviews
of appealed claims. For those claims decisions that were reversed or
remanded, the figure shows the reason, including (1) evaluation of
evidence problems, (2) mismanagement of claims file problems, or (3)
new evidence submitted by the claimant.
Figure 1: Percentage of Appealed Claims Decisions Affirmed, Remanded,
and Reversed by BHR or ECAB during Period from May 1, 2000, through
April 30, 2001:
[Refer to PDF for image: pie-chart]
Affirmed:
No problem/no change to decision: 67%.
Reversals and remands:
Case file management problem: 4%;
Claimant submitted new evidence: 6%;
Evidence evaluation problem: 21%.
Cannot tell: 2%.
Source: GAO analysis of ECAB and BHR appealed claims decisions.
[End of figure]
About One-fourth of the Appealed Claims Decisions Were Reversed or
Remanded Due to OWCP Evaluation Problems or Claims File Mismanagement:
Based on a statistical sample of appealed claims decisions made during
the period May 1, 2000, through April 30, 2001, we estimate that 25
percent of the appealed claims decisions (approximately 2,000 of
8,100) were reversed or remanded because of questions about or
problems associated with the initial decision by OWCP. These included
problems with (1) the initial evaluation of medical evidence (e.g.,
physicians' examinations, diagnoses, or x-rays) or nonmedical evidence
(e.g., coworker testimonies) or (2) management of the claim file
(e.g., failure to forward a claim file to ECAB in a timely manner).
Problems in evaluating medical evidence frequently involved OWCP
failing to properly identify medical conflicts between the conclusions
of the claimant's physician and OWCP's second opinion physician, and
therefore not appointing a referee physician as required by FECA. OWCP
has interpreted the FECA requirement to apply only when the opinions
of the two physicians involved are of equal value, that is, when both
physicians have rendered comparably supported findings and opinions.
Other initial claims decisions were reversed or remanded when BHR or
ECAB determined that nonmedical evidence had not been properly
evaluated. One example of this involved the OWCP provision that when
suitable work is found for the claimant, benefits will terminate. For
example, based on its review of a job offer to a claimant who had work
restrictions”such as not being able to lift over 50 pounds”an OWCP
district office decided that the job represented suitable work and
terminated the claimant's compensation. However, when that decision
was appealed by the claimant, BHR identified a flaw in the job offer.
In order for OWCP to meet its burden of showing that an offered job is
suitable for a claimant, both the duties and physical requirements of
the job need to be fully described in the job offer. For this claim,
the job offer had only set forth the duties, such as inputting social
security numbers on a keyboard. The BHR representative decided that
the offer did not describe the physical requirements associated with
the job and thus, did not "allow the district office to properly
determine whether the offered job was suitable work within the
claimant's work restrictions." BHR concluded that the district
improperly terminated the claimant's compensation and directed that
the claimant's monetary compensation be reinstated. We estimate that
21 percent of appealed claims were remanded and reversed due to
problems with evaluating medical or nonmedical evidence.
Some remands and reversals result from OWCP failing to administer
claims files in accordance with FECA or OWCP guidance for claims
management. The guidance includes (1) a description of the information
that is to be maintained in the claim file and transmitted by OWCP to
the requestor (i.e., BHR or ECAB) and (2) requires claims files to be
transmitted within 60 days after a request is received. Failure to
meet this 60-day requirement was one of the more common deficiencies
in claims file management in our sample. For example, ECAB initially
requested a claim file for one injured worker from OWCP on April 29,
2000. On December 19, 2000 (almost 8 months later), the Board notified
OWCP that the claim file had not been transferred and that if the file
was not received within 30 days, ECAB would issue orders remanding the
case to the relevant district office for "reconstruction and proper
assemblage of the record." As of March 12, 2001”more than 10 months
after the initial ECAB request ”the claim file had still not been
transferred and the claim was remanded back to the district office. We
estimate that 4 percent of appealed claims were reversed or remanded
by the BHR or ECAB for claims file management problems.
For claims that were initially denied and then the decisions were
reversed by the BHR or ECAB due to problems identified with the
initial evaluation of evidence or mismanagement of claims files, there
are delays in claimants receiving benefits to which they were
entitled. According to OWCP, the average amount of time that elapsed
from the date an appeal was filed with BHR or ECAB until a decision
was rendered was 7 months and 18 months, respectively, in fiscal year
2000. Thus, while claimants are provided benefits retroactively to the
date of the initial decision when a claim is reversed, they may be
forced to go without benefits for what can be extended periods and may
have to incur additional expenses, such as representatives' fees,
during appeals that are not reimbursable.
New Evidence Submitted after OWCP Rendered Decision Also Resulted in
Reversals and Remands:
We also found that 6 percent of appealed claims decisions were
reversed or remanded because of new evidence being submitted by the
claimant after the initial decision was made. OWCP regulations allow
claimants to submit new evidence to support their claims at any time
from the rendering of the initial claim decision until 30 days”or more
with an extension”after the BHR hearing or review of the record
occurs.[Footnote 6] Additional evidence could include medical reports
from different physicians or new testimonial evidence from coworkers
that in some significant way were expected to modify the circumstances
concerning the injury or its treatment and make the previous decision
by OWCP now inappropriate. Upon appeal of the earlier district office
decision, the BHR representative determines whether the new evidence
is sufficient to remand the claim back to the district office for
further review, or to reverse the initial decision.
OWCP Has Taken Some Actions to Identify and Address the Causes of
Reversals and Remands:
OWCP monitors remands and reversals by the BHR and ECAB to identify
certain trends in appeals decisions. Steps OWCP says it takes include
reviewing ECAB decisions and preparing an advisory calling claims
examiners' attention to selected ECAB decisions which may represent a
pattern of district office error or are otherwise instructive. Where
more notable problems are identified through ECAB reviews, a bulletin
describing the correct procedures may be issued or training might be
provided. While OWCP similarly monitors reasons for BHR reversing and
remanding claims decisions, this information, or any suggested
corrective actions are not disseminated to claims examiners in as
systematic a manner as is done for ECAB decisions.
Clearly, these actions are providing some information on remands and
reversals, which might be helpful to OWCP and its district offices.
However, this information is not fostering a full understanding of the
underlying reasons for remands and reversals occurring at their
current rates and what other actions might be taken to address those
factors. For example, OWCP might detect that a district office is
failing to appoint referee physicians when required. OWCP might then
notify district offices that such a problem was occurring, but with
the information currently available, it would not be able to identify
how frequently the problem was occuring or the underlying reasons” (1)
are inexperienced claims examiners not sufficiently aware of the
requirement for a referee physician when a conflict of medical
opinions of equal value occurs, or (2) are examiner's experiencing
difficulty in determining whether two physicians' opinions were of
equal value? Without such information on causes, it would be difficult
to address these problems.
We believe that OWCP needs to examine the steps now being taken to
determine whether more can be done to identify and track specific
reasons for claims decision remands and reversals. With such
information, OWCP may be able to act to address those underlying
causes and in so doing, reduce remand and reversal rates.
OWCP officials told us that they have not conducted such an overall
examination of its current process. Instead OWCP said they continue to
adjust their monitoring and communication process (circulars and
bulletins) based on available information. Finally, OWCP indicated
that the rate of OWCP remands and reversals was similar to that of
other compensation organizations. They provided us a comparison of
four organizations whose rates were similar or greater than theirs;
the four were DOL's Black Lung Program, the Social Security
Administration's Disability Program, and the North Dakota and
Washington states' workers' compensation programs. Except for the SSA
program, no information was provided nor do we have information
concerning how comparable the programs are; thus we cannot determine
the validity of such a comparison. Regarding SSA, their reversal rate
may not be comparable to OWCP's because of considerable emphasis on
SSA physicians' testimony for initial claims decisions and the
claimants' and their physicians' testimony during adjudication
hearings, resulting in high reversal rates.[Footnote 7]
OWCP Has Established a Hearing Standard That Allows 110 Days for
Claimant Notification:
FECA requires that OWCP notify claimants in writing of hearing
decisions "within 30 days after the hearing ends." OWCP's
interpretation of the hearing process allows up to 110 days before
almost all claimants are to be notified of decisions.
In establishing guidelines for meeting this provision of the act, the
BHR director told us that the hearing record is not closed until two
separate but concurrent processes are completed.
1. Printing and reviewing of hearing transcript: The time needed to
print and review the hearing transcript could range from as few as 25
days to as many as 47 calendar days from the hearing date. A
contractor prints the hearing transcript, which generally takes from 5
to 7 calendar days.[Footnote 8] The claimant and the claimant's
employing agency then review the transcript of the hearing for up to
20 calendar days. If the employing agency provides comments, OWCP
provides the claimant with the agency's comments and an additional 20
calendar days to respond to those comments.
2. Submitting new evidence: OWCP gives the claimant 30 calendar days
from the date of the hearing to submit additional medical evidence. If
the claimant needs additional time to provide more medical evidence,
the regulations allow the OWCP hearing representatives to use their
discretion to grant a claimant a one-time extension period, that may
be for up to several months. OWCP officials stressed the importance of
all the evidence being considered before a decision is made since if
the decision is appealed to ECAB any subsequent review by the ECAB is
limited to the evidence in the claim record at the time of the
preceding decision.
Given the potentially wide variance in the number of days before OWCP
can close a hearing record, an OWCP official said they have attempted
to establish realistic standards for notifying claimants of hearing
decisions. OWCP has established two goals for the timing of notifying
claimants of final hearing decisions: (1) notifying 70 to 85 percent
of the claimants within 85 calendar days, and (2) informing 96 percent
of claimants within 110 calendar days following the date of the
hearing. Based upon our review of the applicable legislation, we
determined that OWCP has the authority to interpret the FECA
requirement for claimant notification in this manner.
Of an estimated 2,945 appealed claims for which BHR rendered a
decision on a hearing during our review period, notification letters
for an estimated 2,256 (or 77 percent) were signed by OWCP officials
within 85 days of the date of the hearing and an estimated 2,716 (or
92 percent) of the claims were signed within 110 days of the hearing
date.[Footnote 9] OWCP officials signed an estimated 158 (or 5
percent) of the claimants' notification letters from 111 to 180 days
after the hearing date and 70 claims (or 2 percent) from 181 to more
than 1 year after the hearing date.[Footnote 10]
OWCP's Physicians Were Board Certified, Licensed, and Had Specialties
Consistent with the Injuries Examined:
Our review showed that OWCP referee physicians were board certified
and licensed in their specialties. In addition, we found that OWCP's
second opinion and referee physicians had specialties that were
appropriate for claimant injuries in nearly all the cases we examined.
Most of OWCP's Physicians Were Board Certified and Had State Medical
Licenses:
Although neither FECA nor OWCP's procedures manual require second
opinion physicians to be board certified, the procedures manual states
that OWCP should select physicians from a roster of "qualified"
physicians and "specialists in the appropriate branch of medicine."
The manual further requires that for referee physicians "the services
of all available and qualified board-certified specialists will be
used as far as possible." The manual allows for using a noncertified
physician in special situations, stating "a physician who is not board-
certified may be used if he or she has special qualifications for
performing the examination," but the OWCP medical official making that
decision must document the reasons for the selection in the case
record.
Based on our statistical sample, we estimate that at least 94 percent
of OWCP's contracted second opinion physicians and at least 99 percent
of the contracted referee physicians were board certified.[Footnote
11] In making these determinations, we used information from the
American Board of Medical Specialties (ABMS), the umbrella
organization for the approved medical specialty boards in the United
States. In addition, OWCP provided documentation verifying
certifications of some of the physicians in our sample.[Footnote 12]
For the remaining 6 and 1 percent of the second opinion and referee
physicians in our sample, respectively, we lacked information to
determine whether they were or were not certified.
Although neither FECA nor OWCP regulations specifically require either
second opinion or referee physicians to be licensed by the state in
which they practice, OWCP officials stated that OWCP expects that all
physicians will have state medical licenses. Based on our sample of
physicians, we estimated that at least 96 percent of the second
opinion physicians and at least 99 percent of the referee physicians
had current state medical licenses. For the 4 and 1 percent of the
remaining physicians respectively, we did not have sufficient
information to determine whether or in what state they were licensed.
Second Opinion and Referee Physicians Had Specialties That Were
Relevant to Injuries Evaluated:
An estimated 98 percent of OWCP's second opinion and referee
physicians appeared to have specialties relevant to the types of
claimant injuries they evaluated. While there is no requirement for
referee physicians to have specialties relevant to the types of
injuries evaluated, OWCP officials told us that a directory is used to
select referee physicians”with appropriate specialties”to examine the
type of injury the claimant incurred. For the remaining physicians in
our sample, that is the remaining 2 percent, the conclusion was that
they had specialties which were not appropriate for the type of
injuries examined. For example, a cardiologist”acting as a second
opinion physician”examined a claimant for residuals of hypertension
that were aggravating the claimant's kidney disease. The claimed
injury appeared to be associated with kidney rather than heart
disease. Therefore, it would have been appropriate for the claimant to
be treated by a nephrologist (kidney specialist).
For assistance in reviewing relevancy of physician specialties, we
contracted with a Public Health Service (PHS) physician. With that
assistance, we were able to review our sample of claimants' injuries
and the board specialties of the physician(s) who evaluated them to
determine if the knowledge possessed by physicians with a specific
specialty would allow them to fully understand the nature and extent
of the type of injury evaluated.[Footnote 13]
OWCP Uses Several Methods to Identify Customer Concerns and Assists
DOL's IG in Addressing Potential Claimant Fraud OWCP uses surveys of
randomly selected claimants and focus groups to monitor the extent of
customer satisfaction with several dimensions of the claims program,
including responsiveness to telephone inquiries. OWCP claims examiners
and employing agencies serve as primary information sources for
identifying potentially fraudulent claims. When such potential fraud
is detected, DOL's IG investigates the circumstances and, if
appropriate, prosecutes the claimants and others involved.
Customer Satisfaction with the Claims Process:
OWCP obtains information concerning customer satisfaction with the
handling of claims through surveys of claimants and conducting focus
groups with employing agencies. Since 1996, OWCP has used a contractor
to conduct customer satisfaction surveys via mail about once each year
to determine claimants' perceptions on several aspects of the
implementation of the workers' compensation program, including overall
service, for example, whether claimants knew their rights when
notified of claims decisions and the timeliness of written responses
to claimants' inquiries.[Footnote 14] The questionnaires did not
include questions specific to the appealed claims process, but some of
the respondents may have based their responses on experiences
encountered when appealing claims.
In the 2000 survey, customers indicated a 52 percent satisfaction rate
with the overall workers compensation program, and a 47 percent
dissatisfaction rate.[Footnote 15] The level of claimant satisfaction
indicated in their responses for specific issues in the surveys have
been largely mixed (i.e., more positive responses for some questions
and more negative responses for other questions). For example, survey
responses in fiscal year 1998 showed that 34 percent of the
respondents were satisfied with the timeliness of responses to their
written questions to OWCP concerning claims, while 63 percent were
not, and 35 percent were satisfied with the promptness of benefit
payments, while 26 percent were not satisfied. Based on these and
previous survey results, OWCP took actions including creating a
committee to address several customer satisfaction issues, such as
determining if the timeliness of written responses could be improved.
[Footnote 16]
In fiscal year 2001, OWCP took two additional steps to measure
customer satisfaction. First, OWCP used another contractor to conduct
a telephone survey of 1,400 claimants focused on the quality of
customer service provided by the district offices. As of March 25,
2002, a contractor was still evaluating the results of this survey.
Second, OWCP held focus group meetings with employing agency officials
in the Washington, D.C., and Cleveland, Ohio, district offices'
jurisdictions. An OWCP official stated that this effort provided an
open forum for federal agencies to express concerns with all aspects
of OWCP service. In the Washington D.C. focus group, employing agency
officials expressed their belief that some of the claims approved by
OWCP did not have merit. The report on that meeting did not specify
whether this concern applies to appealed claims decisions. The report
documenting the Cleveland focus group effort indicated that employing
agencies were frustrated about not being informed of OWCP claims
decisions and several agencies said they continued to put through
medical bills only to be told by the employees that their claims had
been denied.
OWCP Examiners and the DOL IG Monitor Claimant Fraud:
The DOL's IG”using information from claims examiners and other sources”
monitors, investigates, and prosecutes fraudulent claims made by
federal workers. The IG's office provides guidance to claims examiners
for identifying and reporting claimant fraud, including descriptions
of situations or "red flags" that could be potentially fraudulent
claims. Red flags include such items as excessive prescription drug
requests and indications of unreported income. DOL's Audits and
Investigations Manual requires claims examiners and other employees to
report all allegations of wrongdoing or criminal violations”including
the submission of false claims by employees”to the IG's office.
Once a potentially fraudulent claim is identified, the IG will review
information submitted by the claimant, coworkers, physicians, and
others. The IG may also conduct additional investigations of claimants
and medical providers suspected of defrauding the program, such as
surveillance of claimants and undercover operations aimed at
determining if a physician is knowingly participating in fraudulent
claims. For example, an IG agent”wearing a transmitter”might pose as a
postal worker and visit a doctor who has been identified as providing
supporting opinions for OWCP claimants with questionable injuries. The
agent could then tell the doctor that the claim of injury is in fact
false but that they need time off for personal reasons, for example to
get married. If the doctor agrees to support such a false claim, the
doctor would then be charged with fraud. Of approximately 600,000
workers' compensation claims filed with district offices from fiscal
years 1998 through 2001, the IG opened 513 investigations involving
potential fraud. Of these, 212 led to indictments and 183 resulted in
convictions against claimants and physicians.[Footnote 17]
Conclusions:
One out of four OWCP initial claims decisions (approximately 25
percent) was either reversed or remanded upon appeal because of
questions about or problems with either OWCP's evaluation of medical
and nonmedical evidence or improper management of claims files. For
the appealed claims that were eventually reversed because of problems
with the initial decision, benefits to which claimants were entitled
are delayed. While benefits are usually granted retroactively in such
cases, going without those deserved benefits for what might be
extended periods might create hardships for claimants. Further,
representatives' fees and some other additional expenses that
claimants might incur during the appeals process are generally not
reimbursed by OWCP.
While OWCP monitors certain information on BHR and ECAB remands and
reversals to identify problems in district office decisions, and
distributes much of this information to district offices, that
information does not fully identify underlying causes of the problems.
An examination of the monitoring steps OWCP is currently taking and a
determination of what other information could help OWCP and its
district offices to address underlying causes could result in a
reduction of the rate of remands and reversals.
Recommendation for Executive Action:
We recommend that the secretary of labor require the director of OWCP
to examine the steps now being taken to determine whether more can be
done to identify and track specific reasons for remands and reversals”
including improper evaluation of evidence and mismanagement of claim
files”and address their underlying causes.
Agency Comments and Our Evaluation:
We obtained comments on this report from the Assistant Secretary for
Employment Standards, Department of Labor. The Assistant Secretary
agreed with our conclusions regarding the timing of notifying
claimants on hearing results; physician certification, licensing and
specialties; and processes used by OWCP to monitor customer
satisfaction and potential claimant fraud. The Assistant Secretary
raised concerns, however, with our conclusions related to the
frequency of and reasons for reversals and remands of initial OWCP
claims decisions when appealed by the claimant. Following is a
presentation of key comments from the Assistant Secretary and our
responses to those comments.
OWCP Comment:
A principal comment regarding the report and its conclusions relates
to the use of BHR and ECAB decision summaries to determine the rate of
remands and reversals due to (a) introduction of new information,
(b) mismanagement of case files and (c) district office problems in
evaluating claim evidence. In short, OWCP asserts that BHR and ECAB
summary decisions are inadequate to make such determinations. The
Assistant Secretary also expresses the belief that a "large portion"
of decisions that our review showed were reversed or remanded because
of questions about or problems with the initial decision (as opposed
to new evidence being submitted), were in fact reversed or remanded
because of new evidence being submitted.
GAO Response:
We disagree. Decision summaries we reviewed clearly indicated specific
reasons for each reversal or remand and our analysis fully accounted
for remands and reversals that were ordered by the BHR and ECAB due to
the introduction of new information by the claimant. For example, in
the summary of one decision remanded by the ECAB due to an evidence
evaluation problem, the BHR had originally decided that a claimant was
not entitled to benefits. The BHR decision was based on a second
opinion physician's report and several reports from the claimant's two
physicians' all of which preceded the BHR decision. The BHR
"representative found that the opinions of the (claimants) attending
physicians could not be afforded any great weight as their opinions
were based on the fact that the (claimant) was performing duties
requiring repetitive shoulder movements, and this was not true." In
remanding the decision, ECAB determined that there were "discrepancies
between the opinions of the (claimant's physicians) and the (second
opinion physician) that there is a conflict in the medical opinion
evidence as to the cause of the (claimant's) current condition and,
therefore, the case will be remanded" for the appointment of a referee
physician. An example of a decision where new evidence was submitted,
was an ECAB decision summary that stated that the decision was
remanded back to the OWCP district office "because (claimant)
submitted relevant and pertinent evidence not previously considered by
the office."
OWCP Comment:
Cases are frequently reviewed by claims examiners on arrival and may
be remanded if late arriving evidence is sufficient to meet the
claimant's burden of proof. These claims examiner remands prior to
hearing are frequently based on the review of evidence not available
to the district office examiner. It appears that the GAO investigators
entirely excluded these cases from their sample.
GAO Response:
OWCP is incorrect. Our sample, as indicated in our report, was drawn
from all appealed case decisions made during a 1-year period and
therefore encompassed all affirmations, remands and reversals that
were made before hearings, after hearings and those for the record
during that 12 month period.
OWCP Comment:
The percent of appeals reversed or remanded by the ECAB may be the
purest indicator of district office oversight or error.
GAO Comment:
We note that, based on our sample, the rate of ECAB remands and
reversals was approximately 23 percent, which closely approximates the
composite remand and reversal rate for both BHR and ECAB of 25 percent.
OWCP Comment:
The report also conflates its analysis of remands and reversals.
Remands and reversals must be distinguished. A remand does not reverse
the denial of a claim and direct the examiner to pay the denied
benefit. It may, for example, direct the examiner to ask further
questions of the reporting physician, after which the district office
issues a new decision that considers the doctor's further response.
The new decision may reinstate the original denial or award the
benefit.
GAO Response:
We have added wording to our report to make the distinction clear.
However, because our analysis focused on the same issue for both, i.e.
questions about or problems with initial claims decisions made at OWCP
district offices, we believe it is appropriate to use reversals and
remands as a combined indicator.
OWCP Comment:
In summary, the report's presentation of the ratio of remands and
reversals caused by new evidence, as opposed to "errors" in the
original decision, is seriously flawed. We have attached a chart that
provides the actual outcomes from the two appeal bodies for FY 2001.
Following the actual procedures we have described, we believe that all
(BHR) decisions in which a hearing was held reflect new information to
some degree. As for the other categories, our experience is that half
the remands/reversals prior to hearing and most of the
remands/reversals following reviews on the record are based on the
submission of new evidence. This analysis yields the conclusion that
well over half of the (BHR) remands/decisions reflect the
consideration of new evidence or new argument.
GAO Response:
We agree that new evidence is submitted and considered in many cases
throughout the life of a claim, which may involve a number of separate
appeals. However, our review of decision summaries clearly showed the
reasons for remand or reversal of initial claims decisions when
appealed. Those reasons, which also were provided to claimants in
explaining why the decision on their claim was being remanded or
reversed, included (1) questions about or problems with the
availability or consideration of evidence at the time of the initial
decision, or (2) problems with case file management; and (3) new
evidence or information being introduced. The chart provided by OWCP
does not present any information on such specific reasons for remands
and reversals. In fact, in response to our request for such specific
information at the end of our review, we were told by OWCP officials
that OWCP did not have such information.
OWCP Comment:
The report characterizes four percent of cases as due to
"mismanagement of claim files." This phrase is not defined and only
one example is offered. With no definition and only one example, the
phrase "mismanagement" appears to be unsupported.
GAO Response:
We believe the discussion concerning "mismanagement of claim files"
adequately defines the issue. In addition, the example provided is for
illustrative purposes.
OWCP Comment:
GAO's recommendation appears to be based on (1) the substantial
overestimation of the contribution of OWCP errors to the
remand/reversal rate and (2) a generalization that no systematic study
of the "underlying causes" of remands and reversals has been
undertaken by OWCP. OWCP explained its many and varied approaches to
decision monitoring and quality improvement to the GAO team, and we do
not understand the basis for this generalization. In fact, OWCP does
react to data showing trends from ECAB decisions and hearing
decisions, provides appropriate training to claims examiners, and is
fully committed to continuing to monitor the outcomes of appeals.
GAO Response:
While we agree that OWCP takes a number of actions to monitor decision
reversals and remands, and in fact we recognize many of these in our
report, our estimates of the rates and reasons for remands and
reversals are statistically valid. Our recommendation is based upon
(1) the importance of ensuring that claimants receive benefits to
which they are entitled as promptly as possible; (2) the level of
initial claims decision remands and reversals upon appeal; and (3) our
conclusion that there may be opportunities for OWCP to better identify
the reasons for and address the underlying causes of remands and
reversals.
OWCP Comment:
GAO acknowledged the basis for OWCP's application of a hearing
standard which allows for 110 days for hearing decision notification,
including time for the claimant's review of testimony and opportunity
to comment.
GAO Response:
Our report describes how OWCP has interpreted the FECA requirement and
established a target of notifying most claimants of the decision on
their appeal within 110 days of the date of the hearing. We did not
assess whether this is an appropriate target.
Finally, DOL indicated that, consistent with our recommendation, they
would review and enhance their systems for monitoring results of its
claims adjudication process "to better achieve improvements in our
claims review."
DOL also provided technical comments which we incorporated in the
report as appropriate. DOL's comments are reprinted in appendix IV.
As arranged with your office, unless you publicly announce its
contents earlier, we plan no further distribution of this report until
30 days after the date of this letter. At that time, we will send
copies to the ranking minority member and to the secretary of labor.
We will also make copies available to others on request at that time.
Major contributors to this report were Boris Kachura, Assistant
Director, Thomas Davies Jr., Project Manager; Ellen Grady, Senior
Analyst; Chad Holmes, Analyst; and Karen Bracey, Senior Operations
Research Analyst.
Sincerely yours,
Signed by:
George H. Stalcup:
Director, Strategic Issues:
[End of section]
Appendix I: OWCP's Claims Process:
Based on interviews with OWCP officials and reviews of OWCP
operational guidance, when a federal employee is injured at work and
becomes disabled, the employee files a claim with the employing
federal agency. All claims that involve medical expenses or lost work
time or both are then forwarded by the agency to 1 of OWCP's 12
district offices.[Footnote 18] Figure 2 characterizes OWCP's claims
process, including the claims adjudication process.
Figure 2: Claims Process: Initial claim adjudication process:
1. Injured federal employee files a claim with the employing agency.
2. Does the claim involve medical expenses and/or time loss?
If no: Claim is not filed with OWCP.
If yes[A], go to step 3.
3. District Office: Claim is filed with the district office for a
review by a claims examiner.
4. Does the district office approve the entire claim?
If yes: Claim approved and benefits administered;
If no, go to step 5.
5. Claim/part of claim denied.
6. Is the claimant satisfied with the entire decision?
If yes, Claimant does not further appeal the decision.
If no, go to step 7, 8, 9, or 10.
7. Claimant chooses to appeal through reconsideration by the district
office.
8. Claimant chooses to appeal through an oral hearing or a review of
the written record to the BHR[B].
9. Claimant chooses a review by ECAB.
10. Claimant does not appeal the decision.
Claims appeal/review process:
7a. District office: Claim is reconsidered by a different claims
examiner.
7b. Does the district office claims examiner affirm the appealed
decision?
If no, Claim approved and benefits administered;
If yes, Claim/part of claim denied.
7c. Claimant chooses to appeal through reconsideration again to the
district office (return to step 7).
7d. Claimant does not appeal the decision.
7e. Claimant chooses to appeal through the ECAB (go to step 8).
8a. BHR: Hearing representative conducts hearing and reviews the claim.
8b. Does the hearing representative affirm the appealed decision?
If yes, Claim/part of claim denied;
If no, Decision is reversed and claim is remanded to district office
for the administration of benefits; or;
If no, Case file is remanded to district office for the case to be
further developed; claim may or may not be approved.
8c. Claimant chooses to appeal through reconsideration to the district
office (return to step 7).
8d. Claimant does not appeal the decision.
8e. Claimant chooses to appeal to the ECAB. Return to step 8.
9a. ECAB: Claim is reviewed by a 3-member board.
9b. Does the ECAB affirm the appealed decision?
If yes, Claim/part of claim denied; Claimant does not appeal the
decision[C];
If no, Decision is reversed and claim is remanded to district office
for the administration of benefits; or;
If no, Case file is remanded to district office for the case to be
further developed; claim may or may not be approved.
[A] A portion of uncontested traumatic injury claims are
administratively closed without a determination of entitlement, which
allows for continuation of pay and limited medical expenses.
[B] The appellant loses the right to a hearing before a BHR
representative if a reconsideration has already been conducted by the
district office. However, BHR has the discretion to hear the matter.
[C] By law, claims can not be appealed to the U.S. Federal Court of
Appeals, outside of DOL.
Source: GAO review of OWCP's claims process.
[End of figure]
[End of section]
Appendix II: Scope and Methodology:
In your March 2001 letter, you asked GAO to examine several issues
related to OWCP's workers' compensation claims adjudication process.
To meet this objective, we reviewed a probability sample of over 1,200
decision summaries from about 8,100 ECAB and BHR claims appeal
decisions made between May 1, 2000, and April 30, 2001, on claimant
appeals.
As part of our review of the decisions made by BHR and ECAB on
appeals, we first categorized the decisions in our sample into three
groups: (1) affirmed (the decision made on the initial claim was not
changed), (2) remanded (the claim was sent back by either ECAB or the
BHR to the cognizant district office for additional review or action
and a new decision), or (3) reversed (the initial decision made on the
claim by the district office or BHR was determined by BHR or ECAB to
be incorrect and was therefore changed”in most cases a claim or
portion of a claim that had been denied was changed to an approval).
For each claim that had been remanded or reversed, we then analyzed
the decision summaries to determine the basis for the BHR or ECAB
decision.
To determine the extent to which OWCP was complying with FECA's
requirements that (1) a referee physician be appointed to resolve
conflicts in medical opinions between claimant physicians and OWCP's
second opinion physicians and (2) claimants be informed of the outcome
of hearings in a timely manner, we performed several steps.
For the first of these two objectives, we reviewed FECA legislation
and OWCP regulations and interviewed OWCP officials to identify the
specific requirements related to referee physicians. From our
statistical sample of claims appeal decisions, we then identified
decisions in which at some point during the history of the claim,
there had been a conflict in the medical opinions between the
claimant's attending physician and an OWCP second opinion physician.
For this subset, we relied upon the decisions of the BHR and ECAB as
reflected in decision summaries to determine the extent to which
referee physicians were appointed as required. In addition, we
identified the frequency that claims were remanded or reversed by the
BHR and ECAB because a referee physician should have been but was not
appointed.
Regarding the length of time taken by OWCP to notify claimants about
hearing outcomes, we reviewed the relevant FECA requirement and OWCP's
guidelines and goals and interviewed OWCP officials. We limited our
review on this objective to claims decisions rendered by BHR, because
ECAB decision summaries did not contain the dates needed for our
analysis. Accordingly, we selected a subset of BHR cases from our
sample, and calculated the number of days between the date of the
hearing and the date of the final hearing decisions. In making our
calculation, we used the date of the BHR decision letter as the
claimant notification date.
To determine whether the physicians involved in reviewing claims were
board certified, we used another subset of claims appeal decisions
from our sample, and relied on information from the American Board of
Medical Specialties' (ABMS) website [hyperlink, http://www.abms.org].
ABMS is the umbrella organization for approved medical specialty
boards in the United States. We compared the names and specialties of
the second opinion and referee physicians to the database to determine
whether these physicians were board certified. We looked for an exact
or close match of names while allowing for obvious spelling errors in
the name or other minor discrepancies, such as missing initials.
Although most of the board certification verifications were done by
querying the ABMS website and printing copies of the certifications,
when necessary we also contacted ABMS by telephone to obtain verbal
verification on board certifications or used ABMS' directory book for
calendar year 2002. For those physicians whose certifications we were
not able to readily verify, we asked OWCP to provide documentation of
the board certifications, which they did for a number of physicians.
In determining whether second opinion and referee physicians used by
OWCP had state licenses, we used the same sample subset as we used in
verifying board certifications. In making the state license
determinations, we generally focused on the state in which the
employee resided for BHR decisions, and the state in which the
employing agency was located in for ECAB decisions. We relied on a
variety of resources in that search, including [hyperlink,
http://www.docboard.org] (a public service site) and individual state
medical board web sites for printed documentation. We also phoned
staff in various state medical board offices for verbal confirmation
for some physicians. We again looked for an exact or close match of
name while allowing for spelling and other minor differences. In
addition, since physicians are required to have state medical licenses
in order to become board certified, any physicians whom we could not
verify as licensed through state sources were considered to be
licensed if we had determined the physicians were board certified.
Also, while the dates of physician involvement on individual cases
could have taken place anytime during or even preceding the May 1,
2000, through April 30, 2001 period of our review, we made our
determinations for state licenses as of December 31, 2001.
We also determined whether second opinion and referee physicians
contracted for by OWCP possessed the appropriate medical specialty to
evaluate and fully understand the nature and extent of the claimant's
particular illness or injury. To do this, we drew another subset of
the appealed claims decisions for which we could determine that a
second or referee physician was involved, and that we could identify
the nature of the claimant's injury and the physician's medical
specialty. We contracted with a Public Health Service (PHS) physician
to review the injuries of the claimants in this sample and determine
whether the board specialties of the physician(s) who evaluated those
injuries were appropriate.[Footnote 19]
To determine how OWCP identifies problems with its appeals process,
levels of customer satisfaction, and potential claimant fraud, we
interviewed OWCP officials”including the deputy director and director
of BHR”and reviewed documentation provided by OWCP, including reports
from several annual customer (claimant) surveys and focus groups of
federal agencies. In addition, we interviewed officials in DOL's IG,
analyzed IG guidance on detecting and investigating potential
fraudulent activity, and reviewed IG annual reports that discussed the
identification and prosecution of claimant fraud.
We did our work in Washington, D.C., from March 2001 through April
2002. Our work was done in accordance with generally accepted
government auditing standards.
[End of section]
Appendix III: Sampling and Estimation Methods and Sampling Errors:
To help accomplish some of our objectives we reviewed a probability
sample of over 1,200 ECAB and BHR decisions issued between May 1,
2000, and April 30, 2001. This appendix describes how we selected
decisions for review and provides the sampling error of estimates
presented in this report that we made from our sample.
ECAB and BHR cases were sampled separately. We obtained a list of ECAB
decisions issued between May 1, 2000, and April 30, 2001. The listed
decisions were classified as either remands or nonremands and a simple
random sample of each of the two classifications was selected. BHR
decision files covering the period of our review were stored in
folders in three filing cabinets. Each folder was divided into two
compartments. We took separate systematic samples from the front and
back compartments of the folders in the cabinets. Since the file
cabinets contained some decisions that fell outside our review period,
we estimated, based on our sample, the number of decisions in the
three filing cabinets that were issued between May 1, 2000, and April
30, 2001.
Using these sampling methods described above, we obtained a sample of
over 1,200 decisions. Each sampled decision was weighted in our
analysis to account statistically for all appealed claims decisions
issued between May 1, 2000, and April 30, 2001, including those that
were not sampled. The estimates we made from our sample and the
sampling errors associated with these estimates are given in the table
below.
Table 1: Sampling Error of Estimates for Appealed Claims Decisions to
ECAB and BHR between May 1, 2000, and April 30, 2001[A]:
Result of BHR/ECAB appeal review:
Description: a. Percent of decisions that were affirmed;
Estimate: 67;
Sampling error of estimate: ± 2;
Confidence interval: 65-69.
Description: b. Percent of decisions that were reversed;
Estimate: 10;
Sampling error of estimate: ± 2;
Confidence interval: 8-12.
Description: c. Percent of decisions that were remanded;
Estimate: 22;
Sampling error of estimate: ± 2;
Confidence interval: 20-24.
Description: d. Percent of decisions where review result could not be
determined;
Estimate: 1;
Sampling error of estimate: ± 1;
Confidence interval: 0-1.
Description: e. Percent of decisions that were remanded or reversed
due to questions about or problems with case management or evaluation
problems;
Estimate: 25;
Sampling error of estimate: ± 2;
Confidence interval: 23-27.
Description: f. Number of decisions that were remanded or reversed due
to questions about or problems with case management or evaluation
problems;
Estimate: 2,026;
Sampling error of estimate: ± 174;
Confidence interval: 1,852-2,201.
Description: g. Percent of decisions that were remanded or reversed
due to new evidence;
Estimate: 6;
Sampling error of estimate: ± 1;
Confidence interval: 5-7.
Physicians' board certification and licensing:
Description: a. Percent of second opinion physicians reviewed for
board certification and licensing;
Estimate: 63;
Sampling error of estimate: ± 4;
Confidence interval: 59-68.
Description: b. Percent of referee physicians reviewed for board
certification and licensing;
Estimate: 85;
Sampling error of estimate: ± 8;
Confidence interval: 77-94.
Description: c. Percent of second opinion physicians who were board
certified;
Estimate: 94;
Sampling error of estimate: ± 3;
Confidence interval: 91-96.
Description: d. Percent of referee physicians who were board certified
Estimate: 99;
Sampling error of estimate: ± 1;
Confidence interval: 98-100.
Description: e. Percent of second opinion physicians who were licensed
Estimate: 96;
Sampling error of estimate: ± 2;
Confidence interval: 94-98.
Description: f. Percent of referee physicians who were licensed
Estimate: 99;
Sampling error of estimate: ± 1;
Confidence interval: 98-100.
Relevance of physician specialty to claimant injury:
Description: a. Percent of second opinion physicians reviewed for
appropriateness to claimant injury;
Estimate: 61;
Sampling error of estimate: ± 4;
Confidence interval: 57-65.
Description: b. Percent of referee physicians reviewed for
appropriateness to claimant injury;
Estimate: 83;
Sampling error of estimate: ± 8;
Confidence interval: 75-91.
Description: c. Percent of second opinion and referee physicians who
had appropriate specialties for the claimed injuries;
Estimate: 98;
Sampling error of estimate: ± 1;
Confidence interval: 96-99.
Claimant notification time after hearing:
Description: a. Percent of hearing summaries reviewed;
Estimate: 95;
Sampling error of estimate: ± 2;
Confidence interval: 93-97.
Description: b. Number of appealed claims in which an oral hearing was
held and BHR rendered a decision on between May 1, 2000 and April 30,
2001;
Estimate: 2,945;
Sampling error of estimate: ± 71;
Confidence interval: 2,874-3,015.
Description: c. Percent of claimants notified of hearing outcome in
less than or equal to 85 days;
Estimate: 77l
Sampling error of estimate: ± 4;
Confidence interval: 72-81;
Description: d. Number of claimants notified of hearing outcome in
less than or equal to 85 days;
Estimate: 2,256;
Sampling error of estimate: ± 199;
Confidence interval: 2,057-2,456.
Description: e. Percent of claimants notified of hearing outcome in
less than or equal to 110 days;
Estimate: 92;
Sampling error of estimate: ± 3;
Confidence interval: 89-95.
Description: f. Number of claimants notified of hearing outcome in
less than or equal to 110 days;
Estimate: 2,717;
Sampling error of estimate: ± 202;
Confidence interval: 2,515-2,918.
Description: g. Percent of claimants notified of hearing outcome in
111 to 180 days;
Estimate: 5;
Sampling error of estimate: ± 2;
Confidence interval: 3-8.
Description: h. Number of claimants notified of hearing outcome in 111
to 180 days;
Estimate: 158;
Sampling error of estimate: ± 65;
Confidence interval: 93-223.
Description: i. Percent of claimants notified of hearing outcome in
181 days to more than 1 year;
Estimate: 2;
Sampling error of estimate: ± 1;
Confidence interval: 1-4.
Description: j. Number of claimants notified of hearing outcome in 181
days to more than 1 year;
Estimate: 70;
Sampling error of estimate: ± 44;
Confidence interval: 26-114.
[A] Sampling error and confidence intervals are based on the 95
percent confidence level.
Source: GAO analysis of appealed claims decisions.
[End of table]
[End of section]
Appendix IV: Comments from the Department of Labor:
U.S. Department of Labor:
Assistant Secretary for Employment Standards:
Washington, D.C. 20210:
April 30, 2002:
Mr. George H. Stalcup:
Director, Strategic Issues:
U.S. General Accounting Office:
Washington, DC 20548:
Dear Mr. Stalcup:
Thank you for the opportunity to review and provide comments to the
draft report to the Chairman of the Subcommittee on Government
Efficiency, Financial Management and Intergovernmental Relations,
Committee on Government Reform, U.S. House of Representatives
entitled: "Office of Workers' Compensation Programs ” Further Actions
Are Needed to Improve Claims Review," GAO-02-637. On behalf of
Secretary Chao, the Employment Standards Administration (ESA), Office
of Workers' Compensation Programs (OWCP) has reviewed the report.
The GAO report examined selective aspects of the OWCP adjudication
process. Specifically:
* the frequency and primary reasons why appealed claims decisions are
reversed or remanded to OWCP district offices for additional
consideration;
* the extent to which OWCP is complying with the Federal Employees'
Compensation Act (FECA) requirement to inform claimants within 30 days
about the outcomes of appeal hearings;
* the extent to which OWCP is using certified and licensed physicians
to provide opinions on injuries claimed and whether the physicians'
areas of specialty appear to be consistent with the injuries they
evaluate; and;
* methods OWCP uses to identify customer satisfaction and potential
claimant fraud.
Our response to each of these items follows, in reverse order as
presented above.
GAO Item: Methods OWCP uses to identify customer satisfaction and
potential claimant fraud.
Response. The GAO report comments on some of OWCP's extensive work to
improve customer services in the Federal Employees Compensation
Program and on our cooperation with the Office of Inspector General to
identify potential claimant fraud. As to customer service
satisfaction, we appreciate the GAO's recognition that OWCP has taken
steps to survey customer satisfaction over the past few years, and to
take action to address specific areas where needed.
In addition, we consider the monitoring of potential claimant fraud an
essential part of the OWCP program and appreciate the acknowledgment
by GAO that a cooperative relationship exists with the DOL's Inspector
General for this purpose.
GAO Item: The extent to which OWCP is using certified and licensed
physicians to provide opinions on injuries claimed and whether the
physicians' areas of specialty appear to be consistent with the
injuries they evaluate.
Response. We are pleased that GAO was able to confirm in nearly all
the cases in its large sample that second opinion and referee
specialists are Board certified in an appropriate specialty, and that
none was found to lack this credential.
GAO Item: The extent to which OWCP is complying with the Federal
Employees' Compensation Act (FECA) requirement to inform claimants
within 30 days about the outcomes of appeal hearings.
Response. GAO acknowledged the basis for OWCP's application of a
hearing standard which allows for 110 days for hearing decision
notification, including time for the claimant's review of testimony
and opportunity to comment. GAO also acknowledges that OWCP has the
authority to interpret the statutory requirement in this manner. We
also note that the Employees' Compensation Appeals Board has supported
this interpretation.
GAO Item: The frequency and primary reasons why appealed claims
decisions are reversed or remanded to OWCP district offices for
additional consideration.
Response. The GAO investigators reviewed a large sample of decisions
(more than 1,200 of 8,100) issued by the Branch of Hearings and Review
(H&R) and the Employees' Compensation Appeals Board (ECAB) on appeals
from decisions by the OWCP district offices, during a one-year period
ending in April 2001. The GAO report concludes from this review that
in a high percentage of these decisions, the case was reversed or
remanded to the district office due to district office error in the
evaluation of evidence or administrative errors in handling the
record. We believe that the method used in this review was not well
designed, and that the conclusions, particularly those concerning
outcomes of the hearing process, are not supported by the findings.
Especially with respect to cases appealed to H&R, the percentage of
cases resulting in remand and reversal cannot be simply converted into
an "error rate." In the first instance, it is important to note that,
as even the GAO report indicates, "medical evidence is an important
component in determining whether an accident described in a claim
caused the claimed injury and if the claimed injury caused the claimed
disability." Workers compensation cases, by their very nature, involve
a continuum of medical evidence. As such, a reasonable level of
remands and reversals from H&R should be expected. Moreover, such
remands and reversals are an indication of a robust and independent
evaluation of cases, and, hence, of appropriate due process and
protection of claimants' rights. The H&R hearing process was designed
expressly to give claimants the opportunity to adduce new evidence.
A claimant who receives an adverse decision on any benefit may file a
request for a hearing within 30 days. Additional evidence often
arrives in the district office after the decision was issued, and may
be added to the record by the claimant at any time during the process,
at the time of the hearing request, and at any time up until the
record is closed after the hearing. The claimant may also provide
additional evidence through testimony, and may call witnesses, at the
hearing. In presenting his or her case, the claimant has the
opportunity to emphasize or explain evidence that may not be clear in
the record. In fact, the hearing representative has a special
obligation to make sure that the claimant fully understands the basis
for the district office decision, and has an opportunity to perfect
the record with additional evidence. The purpose of the hearing right
is to make sure that the claimant has had every opportunity to make
the best case.
For all these reasons, the record on which the hearing examiner's
decision is based is always a different and fuller record than the one
available to the OWCP district office at the time of its decision.
Although GAO investigators reviewed many hearing decisions, they read
and catalogued only the written decision. Written decisions are
generally a few pages which summarize the evidence and conclusions of
law. Neither the case files nor the hearing transcripts were examined
by the GAO team. Thus, in many cases the GAO team was not in the best
position to judge whether the hearing decision was based solely on
information that was available to the claims examiner. This bears
directly on whether a remand or reversal reflects, "district office
error in evaluation." For example, a decision by the Hearing
Representative to weigh the claimant's personal testimony more heavily
than the written statement of the employer does not necessarily
indicate an error of evaluation on the part of the district office. In
fact, issues of credibility and presentation are the primary reason
that oral hearings are held. The face-to-face hearing allows the
hearing representative the ability to assess credibility, a duty which
the ECAB has noted in its decisions is of utmost importance.
To provide prompt decisions and benefits to claimants, OWCP has
timeliness requirements for decisions of different complexity, and
sometimes a requested medical report reaches the file after a decision
is issued and the case is transferred to H&R in Washington. Cases are
frequently reviewed by claims examiners on arrival and may be remanded
if the late-arriving evidence is sufficient to meet the claimant's
burden of proof. These claims examiner remands prior to hearing are
frequently based on the review of evidence not available to the
district office examiner. It appears that the GAO investigators
entirely excluded these cases from their sample.
The GAO report concludes that only 6% of appeals decisions are remands
and reversals stemming from receipt of additional evidence, while 25%
are remands/reversals caused by OWCP error. For the reasons just
stated, we believe that a large portion of the cases placed in the
second category attributed to OWCP error, in fact, should have been
categorized as remands and reversals attributed to receipt of
additional evidence. Thus, the report significantly understates the
real percentage of "new evidence" remand/reversals, and significantly
overstates the "error" category. Although we do not have sufficiently
detailed information about how the GAO team categorized decisions by
the various reasons, the report discusses the 6% figure in the context
of a paragraph regarding the procedure which allows claimants to
submit new evidence after a hearing has already been held. Such
instances are clearly far less frequent than the numerous situations
discussed above ” especially during the hearing itself” where new
evidence is submitted or differently argued. In any case, the 6%
determination is inaccurate on its face, and given the methodology of
the review a valid assessment of this ratio was not possible. Absent a
complete review of the case file, we believe it is impossible to
assess with any degree of accuracy which cases were remanded or
reversed due to new evidence or an interpretation of evidence based on
credibility assessment.
The foregoing addresses appeals to H&R, a process that was established
expressly to elicit new evidence. However, an additional difficulty
with the analysis in the GAO report is it's combining of reversals and
remands from H & R with reversals/remands from the Employees'
Compensation Appeals Board (ECAB). Unlike H&R, the Employees'
Compensation Appeals Board (ECAB) does not accept changes to the
record. Even at the ECAB, however, the claimant has an opportunity to
submit written arguments and/or to present oral argument. The percent
of appeals reversed or remanded by the ECAB may be the purest
indicator of district office oversight or error (for this reason this
smaller subset of decisions is monitored more closely and formally by
OWCP). Even here, however, the ECAB may be taking a new position on an
issue that has not previously been considered, and may essentially be
establishing a new interpretation of the Federal Employees'
Compensation Act (FECA). Only a careful review of the context can
determine the nature of the remand or reversal.
(Even when there is no new ground broken in an ECAB decision, it is
important to note that the Board and its legal staff have the benefit
of an extensive period to review the facts and legal argument in each
case, as well as any pleadings or oral argument filed on behalf of the
claimant or OWCP. It should not be surprising, nor is it always an
indication of initial error, that in some percentage of cases,
especially in complex areas of the law, the ECAB will arrive at a
different conclusion than a claims examiner did in the first instance.)
The report also conflates its analysis of remands and reversals.
Remands and reversals must be distinguished. A remand does not reverse
the denial of a claim and direct the examiner to pay the denied
benefit. It may, for example, direct the examiner to ask further
questions of the reporting physician, after which the district office
issues a new decision that considers the doctor's further response.
The new decision may reinstate the original denial or award the
benefit.
Thus, a valid "error rate" computed based on both remands and
reversals would reflect procedural or other mistakes in the original
decision. With respect to remands, however, a critical factor not
presented by the GAO report is that the substance of the original
district office decision is often found not to have been in error.
In summary, the report's presentation of the ratio of remands and
reversals caused by new evidence, as opposed to "errors" in the
original decision, is seriously flawed. We have attached a chart that
provides the actual outcomes from the two appeal bodies for FY2001.
Following the actual procedures we have described, we believe that all
H&R decisions in which a hearing was held reflect new information to
some degree. As for the other categories, our experience is that half
the remands/reversals prior to hearing and most of the
remands/reversals following reviews on the record are based on the
submission of new evidence. This analysis yields the conclusion that
well over half of the H&R remands/reversals reflect the consideration
of new evidence or new argument. As already stated, any attempt to
determine precisely which of these remands/reversals were primarily
caused by district office error would require a thorough study
of the entire case file, including the decision, the transcript, and
the various pieces of key evidence.
The chart also shows that remands for additional development far
outnumber reversals (in which the district office decision is simply
overturned. The ratio is 2:1 for hearing decisions and 3:1 for ECAB
decisions. As previously noted, after further development, the
district office may reach substantively the same decision after taking
account of the new information with further case development.
The report characterizes four percent of cases as due to
"mismanagement of claim files." This phrase is not defined, and only
one example is offered, of the need to reconstruct a case because
it was not forwarded promptly to ECAB. (Even here, the investigators
did not determine whether OWCP or ECAB was the source of the
administrative problem.) With no definition and only one example, the
phrase "mismanagement" appears to be unsupported. In any case, OWCP's
move to a completely imaged case record will improve our ability to
timely transfer files to both the H&R and the ECAB, eliminating
mailing delays and the small percentage (less than one percent of ECAB
decisions according to our data) of cases lost in the mail or via
misfiling.
Finally, GAO's recommendation appears to be based on (1) the
substantial overestimation of the contribution of OWCP errors to the
remand/reversal rate just described, and (2) a generalization that no
systematic study of the "underlying causes" of remands and reversals
has been undertaken by OWCP. OWCP explained its many and varied
approaches to decision monitoring and quality improvement to the GAO
team, and we do not understand the basis for this generalization. In
fact, OWCP does react to data showing trends from ECAB decisions and
hearing decisions, provides appropriate training to claims examiners,
and is fully committed to continuing to monitor the outcomes of
appeals.
To that end, examples of OWCP's approach include the following:
* Staff of the Division of Federal Employees' Compensation policy
branch study every decision of ECAB. Precedent-setting decisions and
decisions which evidence a pattern of error become the basis of FECA
Bulletins, FECA procedure manual revisions, accountability review
manual items, and nationally-developed training courses. As the report
mentions, quarterly circulars summarizing important decisions and
areas needing more attention are published.
* Accountability reviews of the quality of decisions are done
biennially in each district office. The categories used for screening
office performance are based on material drawn from OIG
findings, appellate results, and other sources. A quality index based
on a subset of the scores from these reviews is developed and a goal
for improvement is included in OWCP's Government Performance and
Results Act strategies. This index is intended to get at the
fundamental issues which affect outcomes on appeal. Comparative
results are shared with the district offices. The index categories
were tightened and enhanced for FY 2002 to raise the quality bar even
higher, and to ensure that claimants can fully understand the
reasoning behind decisions made on their cases in the district offices.
* Managers in the H&R evaluate every decision of the Branch, give
guidance to district offices when local patterns of error are
detected, and report to the FECA Director on problems and trends.
* Remands and reversals from H&R and ECAB are returned for action to
the district office where action is required on a short time frame.
They are reviewed by the District Director or a designee to determine
whether individual mentoring is needed. Topics that appear to have
been widely misunderstood are added to the agendas of local training
classes.
* Reports breaking out H&R decisions by issue, remand, and reversal
rate are provided to district offices, allowing regional managers to
compare outcomes across offices and utilize that information to target
training needs.
In addition to these central concerns regarding the report's findings
and recommendation, we identified a number of more technical issues or
problems with the draft report which are included in Attachment 1.
OWCP is committed to continual improvement of its processes and
performance. We believe we have effective systems in place for
monitoring the results of the two appellate systems and making changes
to procedures and targeting training efforts to address problems and
trends identified. Nevertheless, as recommended by the GAO report, we
will continue to review and enhance our systems for ensuring case
decision quality to better achieve improvements in our claims review.
Again, we appreciate the opportunity to review and comment on the
report.
Sincerely,
Signed by:
[Illegible] for:
Victoria A. Lipnic:
Enclosures:
Branch of Hearings and Review:
Decisions by Disposition Excluding Procedural Denials of Hearing,
Withdrawals, and No-Shows FY 2001:
Affirmations: 66.2%;
Remand Before Heating: 7.3%;
Reversal Before Hearing: 4.7%;
Remand After Hearing: 10%;
Reversal After Hearing: 8%;
Remand, Review of the Record: 3.3%.
Reversal, Review of the Record: 3.4%.
Percentages may not add up to 100% due to rounding.
ECAB Decisions by Disposition, FY 2001:
Affirm: 66%;
Affirm/Remand: 3.1%;
Remand: 14.6%;
Reverse: 4.7%;
Withdraw/Dismiss: 11.8%;
Remand for Failure to Produce Case Record: 0.7%.
Percentages may not add up to 100% due to rounding.
[End of section]
Footnotes:
[1] A reversal means the current decision on the claim was determined
to be incorrect and the decision was changed, while a remand means the
claim was sent back to the district office or BHR for additional work
and a new decision and does not necessarily indicate that the current
decision was incorrect.
[2] OWCP is also responsible for adjudicating and administering claims
authorized by the Longshore and Harbor Workers' Compensation Act,
which covers employees engaged in maritime employment, and for
recipients of black lung compensation. In addition, OWCP administers
the Energy Employees' Occupational Illness Compensation Act.
[3] OWCP's regulations state that to determine if the medical evidence
is of equal value, each physician's opinion is to be considered
against the following factors: (1) whether the physician involved in
the case is a specialist in the appropriate field relevant to the
claimant's injury or illness, (2) whether the physician's opinions are
based upon a complete and accurate medical and factual history, (3)
the nature and extent of findings on examination of the claimant, (4)
whether the physician's opinions are rationalized, and (5) whether the
physician's opinion is stated unequivocally and without speculation.
[4] Our sample and analysis focused on decisions by the BHR and ECAB
on appealed claims. We did not include requests for reconsideration by
district offices.
[5] The remaining 2 percent of the decision summaries we examined did
not include information regarding what decision was reached on the
claimant's appeal or the rationale for the decision.
[6] Most reversals and remands resulting from the claimants submitting
new evidence were made by the BHR.
[7] Social Security Disability: SSA Must Hold Itself Accountable for
Continued Improvement in Decision-making [hyperlink,
http://www.gao.gov/products/GAO/HEHS-97-102], Aug. 1997.
[8] The hearing transcript is generally a verbatim description of the
hearing proceedings and only on rare occasions includes a preliminary
decision by the BHR.
[9] Our analysis reflects only appeals for which necessary dates were
available in the claims decision files. We estimate that the dates we
used to determine the length of time required to provide decision
information to a claimant were available in the decision files for 95
percent of the BHR appeals with hearings.
[10] The percentages of claims decision notifications signed within
110, 111 to 180, and 181 days or more of the hearing date do not total
100 percent due to rounding.
[11] We were only able to search for board certification and licensing
for”and consequently only included in our sample”those physicians for
whom we could identify a first and last name and an area of medical
specialty from the claims decisions summaries. Our estimates regarding
board certification and licensing cover about 63 percent of second
opinion and 85 percent of referee physicians.
[12] One reason why neither OWCP nor we were able to determine if a
small proportion of physicians-”for whom we had the necessary
information (i.e., first and last name and specialty)-”were board
certified and state licensed is that some of the medical examinations
by the physicians in our sample occurred during or prior to the period
from May 1, 2000, through April 30, 2001. Each of the state medical
boards and the ABMS web sites that we used to check the status of the
board certifications and licenses only provided information on current
status.
[13] We were not able to attempt to evaluate the appropriateness of
the physician's specialty in comparison to the injury for some claims
because the claims decisions summaries did not contain the type of
injury or the physician's specialty. We estimate that the information
needed to evaluate the appropriateness of the specialty was available
in the summaries we used for an estimated 61 percent of second opinion
physicians and 83 percent of referee physicians.
[14] The claimants were selected on a random sample basis and the
surveys were conducted in 1996, 1997, 1998, and 2000.
[15] The remaining 1 percent did not provide information on overall
satisfaction level.
[16] Prior GAO testimony (Office of Workers' Compensation Programs:
Goals and Monitoring Are Needed to Further Improve Customer
Communications, [hyperlink, http://www.gao.gov/products/GAO-01-72T],
Oct. 3, 2000) addresses deficiencies in the goals OWCP set for
customer satisfaction and the evaluative data collected for measuring
progress in improving customer satisfaction.
[17] A number of the cases involved more than one claimant or
physician.
[18] For uncontested traumatic injury claims, if the claim is for
medical expenses that did not exceed $1,500 and the employee missed
less than 45 days of work as a result of the injury, an OWCP claims
examiner can reimburse the claimant for the medical expenses incurred
and provide the claimant with continuation of pay benefits. An OWCP
official said the claims examiner would then administratively close
the claim without a determination of entitlement.
[19] We were not able to evaluate the appropriateness of the
physician's specialty in comparison to the injury for some claims
because the decision summaries did not contain the type of injury or
the physician's specialty.
[End of section]
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