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related link: Federal workers' comp (OWCP) under scrutiny (6/20/04) | ||
APWU Human Relations Director Susan Carney, (red suit) Assistant Legislative Director Myke Reid (striped tie) and Human Relations Assistant Richard Boutwell (seated in front of Reid) listen to testimony by Subcommittee.
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Statement of Susan M. Carney Director Human Relations Department, American Postal Workers Union, AFL-CIO Any analysis of federal injury compensation costs which focuses on the reduction of benefits runs counter to the sprit of FECA |
STATEMENT OF SHELBY HALLMARK As currently structured, FECA creates direct disincentives to return-to-work |
Statement of Elliot P. Lewis Assistant Inspector General for Audit Office of Inspector General U.S. Department of Labor Recommendations to Improve the FECA Program |
APWU Decries ‘Cost-Driven’ Changes Proposed for Improving OWCP Protesting the potential for adding insult to injury, APWU testimony before the House Workforce Protections Subcommittee cautioned that studies of the injury compensation system should focus more on workers than on costs. “Any analysis which is based on the assumption that federal employees are somehow better off because they have become partially or totally disabled due to a workplace injury or illness is, at best, misguided,” said APWU Human Relations Director Sue Carney. “Any analysis that focuses on the reduction of benefits runs counter to the spirit of the Federal Employees Compensation Act, and risks the creation of fundamental inequities for the injured worker.” The May 13 hearing was the first in a series of oversight hearings to examine the efficiency of the FECA program. The key issue is the program’s effectiveness in claims processing and assisting employees in returning to work. (The subcommittee’s work is unrelated to proposals to reduce the benefits of injured postal workers that are being considered by the Senate Governmental Affairs Committee as part of postal reform legislation.) Testimony was given by claimants’ representatives, medical providers, and Labor Department officials. It focused in large part on what Rep. Charlie Norwood (R-GA), chairman of the House panel, called “the difficulty in communicating with the Office of Workers’ Compensation Programs, which administers FECA.” “While I know that the agency receives and processes a vast amount of mail, medical bills and phone calls each year,” Norwood said, “the program must continue to improve its performance in these areas to benefit workers who need these critical services.” Norwood noted that processing delays “can impact the entire system by significantly increasing the amount of time that workers remain off the job.” Despite this, Carney noted, time lost to Postal Service injury has declined steadily since fiscal year 2000, and continues to decline in fiscal year 2004. Postal workers are doing their part, Carney testified, “yet their federal injury compensation costs continue to rise.” “One major cost driver is the continuing increase in total amounts billed for medical services,” the APWU Human Relations director said. “In any efforts to cut costs, it is imperative to control the escalating prices of this powerful industry rather than reduce benefits to injured employees.” “Despite our progress to date,” said Shelby Hallmark, the director of OWCP, “there are structural features in the FECA which create, in themselves and in their interplay with civil service retirement law, incentives for workers to enter and remain on the long-term disability rolls long after they could be expected to return to work.” But Carney called FECA “a law based in equity,” saying that, “unilaterally reducing benefits to the injured worker simply in an effort to lighten the financial liability of the employer is not an equitable response to the increasing injury compensation costs. “Injured workers already suffer loses, both financial and emotional, for which they can never be compensated. A reduction in benefits that were fairly established would unjustly increase the already substantial burden of their injuries and illnesses, and literally add insult to injury ... Subjecting injured workers to additional financial hardship and possible re-injury should not be a substitute for the cures that modern medicine has to offer.” The 88-year old FECA program covers three million workers and provides a variety of benefits for employees injured in the performance of their duties, including payments for medical care and wage-loss compensation for total or partial disability. APWU News Service May 17, 2004
- BDS Equipment
Deployment Delayed
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FOR IMMEDIATE RELEASE CONTACTS: Kevin Smith or Subcommittee Examines Effectiveness of Federal Employees’ Compensation Act and Looks to Improve the System for Federal Workers WASHINGTON, D.C. – Witnesses before the House Workforce Protections Subcommittee today testified about various aspects of the Federal Employees’ Compensation Act (FECA), assessing the overall effectiveness of the workers’ compensation program for federal employees. Today’s hearing also examined whether claims processing, communication, and payment disbursements are meeting the needs of injured federal workers and the overall goals of the program. “The Subcommittee continues to hear complaints from claimants, medical providers and other Congressional offices about the difficulty in communicating with the Office of Workers’ Compensation Programs, which administers FECA,” said Rep. Charlie Norwood (R-GA), chairman of the Workforce Protections Subcommittee. “One of my colleagues from Texas recently forwarded a letter to me from a constituent who is a physician with experience in treating injured federal workers. The physician points out that he has now stopped seeing new patients with federal workers’ compensation claims, as have many of his colleagues, because of the repeated delays and denials for surgery requests. In his experience, the typical delays for surgery approvals run anywhere from six months to a full year.” “These kinds of delays can impact the entire system by significantly increasing the amount of time that workers remain off the job,” added Norwood. “While I know that the agency receives and processes a vast amount of mail, medical bills and phone calls each year, the program must continue to improve its performance in these areas to benefit workers who need these critical services.” The 88-year old FECA program covers some three million federal workers and provides a variety of benefits for employees injured in the performance of their duties, including payments for medical care, wage-loss compensation for total or partial disability, schedule awards for certain injuries, and assistance in returning to work, including vocational rehabilitation. FECA also provides benefits to the survivors of federal employees who die in the performance of their work for the federal government. In FY 2003, the program paid more than $2.3 billion in benefits to approximately 280,000 individuals. Committee member Rep. Jim Greenwood (R-PA) said Congress needed to learn more about the FECA program to ensure injured federal employees are provided with timely workers’ compensation benefits. “I hope that this hearing today will provide us with a foundation of understanding,” Greenwood said. “It is critical that we learn how this important program operates and its overall effectiveness on behalf of workers. We want to build on the program’s successes and correct weaknesses.” Witnesses before the Subcommittee provided members with information about the program, highlighted the objectives of a workers’ compensation system and the role government should play in the system, and suggested areas of improvement that would benefit claimants and taxpayers. Shelby Hallmark, director of the Office of Workers’ Compensation Programs (OWCP), said the agency has “made major progress, but we still have major challenges, especially in achieving appropriate return-to-work outcomes.” Hallmark highlighted the importance of strengthening return to work initiatives such as President Bush’s Safety, Health and Return-to-Employment (SHARE) program, which was introduced in January. The program “directs federal agencies to set goals and track results in four areas: lowering workplace injury and illness case rates; lowering lost-time injury and illness case rates; reporting injuries and illnesses in timely fashion; and reducing days lost from work injuries and illnesses,” he said. Elliot Lewis, assistant inspector general for audit at the Labor Department, explained the importance of effective management of the FECA program, saying “The FECA program affects the budgets of all federal agencies, and quasi-federal agencies such as the Postal Service. Effective management of the FECA program works to the benefit of every claimant, federal agency and taxpayer.” Lewis highlighted a number of continuing problems, however, including an audit that found “the lack of current medical evidence in 18 percent of sampled cases, which appeared to be due to OWCP’s failure to comply with its own procedures rather than a lack of responsiveness on the part of the claimant.” He also said the inspector general’s office had “made recommendations to OWCP for improvement in the areas of customer service and program integrity and OWCP has recognized the need to implement changes in response to our concerns.” Allan Hunt, the executive director for employment research at the Upjohn Institute in Kalamazoo, Michigan, who has studied the FECA program, testified there was room for improvement in administering the program but also highlighted some areas of program success. He said OWCP had developed a “loss production days performance measure” that had helped the agency “minimize work time lost to occupational injury and illness.” As a result, Hunt said OWCP had been able to drive the “lost production day rate down by one-third in the past decade.” This oversight hearing is the first in a series being conducted by the Subcommittee to examine the efficiency of the FECA program overall, as well as its effectiveness in claims processing and assisting employees in returning to work. |
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Statement of Susan M. Carney
Examining the Federal Employees’ Compensation Act May 13, 2004 Mr. Chairman and members of the subcommittee: I am Sue Carney, Director of the Human Relations Department of the American Postal Workers Union, AFL-CIO. I would also like to introduce Richard Boutwell, APWU Federal Injury Compensation Specialist and Assistant to the Human Relations Department. On behalf of APWU President William Burrus and our members I would like to say that we appreciate the opportunity to present our views regarding the Federal Employees’ Compensation Act (FECA) and its administration by the Department of Labor, Employment Standards Administration, Office of Workers’ Compensation Program (OWCP). The APWU is the largest postal union in the world, representing over 300,000 postal workers in the clerk, maintenance, and motor vehicle service crafts. We are employed in approximately 38,000 sites throughout the country, providing a public service in every city, town and community in our nation. Workplace injuries and illnesses negatively impact a significant number of postal employees. In recognition of this, it is a priority function of the APWU Human Relations Department to provide guidance to our members regarding their rights and responsibilities, as well as the employer’s obligations to them under the Federal Employees’ Compensation Act. Overview Any analysis of federal injury compensation costs which focuses on the reduction of benefits runs counter to the sprit of FECA, and risks the creation of fundamental inequities for the injured worker. Any analysis which is based on the assumption that federal employees are somehow better off because they have become partially or totally disabled due to a workplace injury or illness is, at best, misguided. Before I discuss the FECA benefit structure, let me point to the very real losses suffered when a federal employee becomes partially or totally disabled due to an on-the- job injury or illness. The impact to injured workers and their families can be devastating in both their workplace and personal lives. Medical expenses and a loss of income often results in loss of property, damaged credit and consequential family problems. Regardless of the compassion you possess for the injured, or how fluent you are regarding various workers compensation programs, it is human nature for those who have never suffered a workplace injury to minimize the consequences or discount the effects of a medical condition until it strikes them or a close family member. Until then, diagnoses such as carpal tunnel syndrome, herniated discs, elbow tendonitis, rotator cuff tears, and closed-head injuries are just words on a page. Due to my personal experiences, I have a very different perception on the injured employee’s quality of life. I suffer from carpal tunnel and thoracic outlet syndromes causal to my employment with the United States Postal Service. I have impairments of 29% loss of use to my right arm and 15% loss of use to my left arm. The simple acts that we all take for granted aren’t so simple for me. Imagine not being able to drive for any real distance, or having difficulty turning the doorknob to enter your own home, missing out on activities with your kids, requiring assistance with household chores, and having to go to the salon because you can’t raise your arms long enough to style your own hair. My former husband has two herniated discs as a result of his employment with the USPS. Our family went months without his wage loss compensation benefit. It took five years for his back surgery to be approved. Our free time was spent in the doctor’s office three times a week for physical therapy, injections, routine follow-up visits, completing forms or obtaining medical reports. He is not the same person he was physically or psychologically before his injury. We are not the exception nor are we unique among the thousands of workers who are injured on the job each year. Any injury compensation policy analysis which implies that federal workers’ lives are favorably changed by their workplace injuries demonstrates a fundamental disconnect regarding the realities of life. Benefits Lost Totally disabled employees or partially disabled employees who return to work less than full-time, and receive wage loss compensation are placed in a leave without pay (LWOP) status. Employees in a LWOP status cannot accrue sick or annual leave and cannot make or receive contributions to their Thrift Savings Plan for retirement. Benefits they would otherwise be entitled to if not for their on the job injury. And while their LWOP will count as creditable service for retirement purposes, partially disabled employees who are not able to return to work full-time are, according to the Office of Personnel Management, part-time employees, even if their employment status is career full-time. Their base pay will be pro-rated when their annuity is computed. The subsequent annuity reduction can be dramatic. Additionally, a disabled employee’s pay rate for wage loss compensation is frozen as of the date of injury or first disability and does not increase as a result of contractual pay raises and COLAs, or step increases (a claimant will receive an OWCP COLA after receiving wage loss compensation for one year). Benefits FECA’s wage replacement rate is 66 2/3%, and if there is a dependent the rate is 75%. There is no income tax deduction from these injury compensation payments, but the employee’s health care and optional life insurance premiums are still deducted. The average Postal Service bargaining unit employee has a base pay of under $42,000. At this pay rate it is highly unlikely that the injured bargaining unit employee is going to receive a net pay increase as a result of a disabling injury. When comparing FECA to state wage loss compensation rates, it should be noted that an average bargaining unit employee’s weekly compensation of $538 would be less than the average maximum state wage weekly compensation of $559. It has been suggested that a reduction in the wage loss compensation formula would serve as an incentive for all claimants to return to work. Subjecting injured workers to additional financial hardship and possible re-injury should not be a substitute for the cures that modern medicine has to offer. It should also be mentioned that if an injured employee qualifies for Social Security Act (SSA) benefits that are paid for disability, then FECA benefits will be reduced by the SSA benefits attributable to the employee’s federal service. Continuation of pay (COP) is paid only for timely filed traumatic injury claims. It is not paid for occupational illness claims. According to USPS statistics the average COP usage is just 66.3 hours per traumatic injury. Implementing a three-day waiting period would impose a 37% slash to the worker’s pay that if not for the workplace injury they would be earning. As for the argument that the three-day waiting period would discourage “frivolous” or “non-meritorious” claims, this reasoning implies it’s permissible to penalize the worker whose injury was not severe enough; the waiting period could prove to be counter productive. Putting it plainly, non-meritorious claims are going to be denied by OWCP. When the claim is denied the employee must reimburse the employer either by substituting leave for the COP, or by paying out of pocket. Therefore, these non-meritorious claims are not a cost factor for the employer, and a three-day waiting period is simply a pretext for an inequitable reduction of a reasonable wage loss payment for the worker. We also hear arguments for creating a “FECA Retirement System,” maintaining that a totally disabled person should be forced into OPM retirement at a certain age. We would argue that compelling people to retire because they have reached a certain age is contrary to national policy and implies that injured employees chose to become totally disabled in order to gain some financial advantage. Additionally, there is no equity in terminating wage loss compensation when an injured employee reaches some arbitrary age. Many people are working well beyond “normal” retirement age because they simply cannot afford to retire. As stated earlier, since injured employees are in a LWOP status, neither they nor their employing agency may make contributions to TSP. For FERS employees, the maximum impact would result in their annuity funding being diminished by 15% of their basic pay and the accrued rate of return on their TSP investment. Additionally, injured workers who continue to have disability causal to their employment would not be able to earn supplemental income to their annuity as so many healthy annuitants currently do. Disabled workers should not be held to a higher standard, singled out for financial hardship, nor be expected to make do on a reduced annuity. Medical Costs Statistics from the Department of Labor indicate that Postal Service injury case rates have declined steadily since fiscal year 2000, and continue to decline in fiscal year 2004, yet their federal injury compensation costs continue to rise. One major cost driver is the continuing increase in total amounts billed for medical services. In any efforts to cut costs, it is imperative to control the escalating prices of this powerful industry rather than reduce benefits to injured employees. FECA Changes Department of Labor submission timeliness reports establish that less than 65% of notice of injury or illness forms (CA-1s/CA-2s) are received by OWCP from the employing agencies within the federally mandated time limits (ten working days), and less than 48% of wage loss compensation claim forms (CA-7s) are received by OWCP in a timely manner (five working days). These delays have a significant impact on timely adjudication of entitlement to benefits. Until OWCP receives these claim forms, they cannot begin the claim adjudication process. They are unable to initiate the process of evaluating the merits of the claim, to monitor both the medical treatment and the employee’s return to medically suitable work. OWCP’s internal analysis has demonstrated that the delayed submission of the forms for notice of injury and claim for wage loss compensation make a significant difference in the length of time an injured worker remains off the job, even when injuries and working conditions are similar. Under the current FECA, OWCP does not have any enforcement powers. They can only attempt to persuade and cajole federal agencies to submit claim forms within the time limits mandated by federal regulation. We suggest that OWCP be granted enforcement powers in regards to addressing the entire experience of injured workers, from the day of injury to their return to work. This is a change which would benefit the injured employee, the employer, and OWCP. Ergonomic injuries alone cost taxpayers, businesses and workers billions of dollars annually. OSHA estimates that each year, 1.8 million workers suffer from musculoskeletal disorders and that 600,000 people miss work because of them. The Labor Department estimated that “new safety rules” for employers would prevent injury to about 300,000 workers annually and save the U.S. economy $9 billion. Repealing the Ergonomic Standards may have relieved business groups of the financial burden to correct workplace safety violations, but it did nothing to quell the costs of injuries that they or U.S. taxpayers encounter because of them. The latter is a far greater burden than the cost of addressing the unsafe conditions. Therefore, if in fact the Safety, Health and Return-to-Employment Initiative and this committee are genuine in their goal of reducing the costs of injury, then there must be more than initiative goals beyond that of job performance. There must be employer accountability to ensure a safe work environment that is mindful of unsafe conditions and of ergonomic standards. Finally, we recognize OWCP has made efforts to improve services. They have made technological improvements in order to process claims more efficiently, which provides claims examiners with more immediate access to imaged records and reduces delays in claim processing. The implementation of a centralized mailroom that services all OWCP District Offices has reduce routing time to responsible claims staff, and reduced record-misplacement occurrences. Although OWCP has relieved its claims examiners of some clerical duties, claims examiners are still in short supply to adequately adjudicate claims in a timely manner. These shortages cause delays in prompt medical treatment, which results in prolonged recovery for claimants and hardships for both claimants and the employers. In another effort to expedite service, OWCP recently contracted with a single company, ACS, to approve all medical services requiring prior authorization and to handle its bill payment processes. Contracting out, however, has created some new problems. Claims examiners are no longer available to discuss medical bills, reimbursements and authorizations with claimants, their representatives, or their physicians. ACS representatives are not responsive, nor do they demonstrate consistency in applying the regulations, which has resulted in unnecessary delays. We suggest that when duties are contracted out that there be a Statement of Work Agreement that specifies obligations and includes relief to OWCP of the contract when a vendor fails to meet the terms of the agreement. Additionally, we suggest that OWCP maintain genuine oversight with all contracted companies. Conclusion The Federal Employees’ Compensation Act is a law based in equity. The employer gives up some of the defenses available under common law, and the employee similarly forgoes the full range of damages which could be awarded. It is a non-adversarial process designed to provide a predictable level of liability for the employer, and a predictable level of benefits for the employee. To amend the law in a manner which upsets this balance would be a disservice to the overriding concept of fairness that is the law’s foundation. Unilaterally reducing benefits to the injured worker simply in an effort to lighten the financial liability of the employer is not an equitable response to the increasing injury compensation costs. Injured workers already suffer loses, both financial and emotional, for which they can never be compensated. A reduction in benefits that were fairly established would unjustly increase the already substantial burden of their injuries and illnesses, and literally add insult to injury. Thank you for this opportunity to address these important issues. |
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STATEMENT OF SHELBY
HALLMARK May 13, 2004 Chairman Norwood and Members of the Subcommittee: My name is Shelby Hallmark. I am the Director of the Office of Workers’ Compensation Programs (OWCP), a component of the Employment Standards Administration, within the Department of Labor. OWCP administers four workers’ compensation programs, of which the Federal Employees’ Compensation Act (FECA) is by far the largest. I appreciate the opportunity to discuss the real and measurable progress we have made in improving administration of FECA, and the challenges that must be addressed if the program is to reach its potential as a world-class workers’ compensation system. Challenges remain Despite our progress to date, there are structural features in the FECA which create, in themselves and in their interplay with civil service retirement law, incentives for workers to enter and remain on the long term disability rolls long after they could be expected to return to work. Returning to work following a significant injury can be a difficult and lengthy process, requiring physical, mental and emotional adjustments for the employee. When a workers’ compensation system adds economic disincentives to the picture, that difficult transition occurs more slowly or not at all, creating higher costs to the taxpayers, lost productivity to the employing agency, and for workers themselves and their families, disrupted lives and diminished self-esteem. As currently structured, FECA creates direct disincentives to return-to-work in two significant ways. The first and most far-reaching is that while the basic rate of FECA compensation, 66 2/3%, is comparable to most state systems, the majority of Federal employees receive an augmented benefit, 75%, reflecting at least one dependent. Computed at 75% tax free, FECA benefits frequently exceed the employee’s pre-injury take home pay. Few state systems provide any augmentation for dependents, and none approaches the Federal level. A second major disincentive to an employee’s recovery and resumption of a Federal career is the disparity between retirement benefits provided by OPM and long-term FECA benefits. Under current law, the thousands of long-term FECA beneficiaries who are over normal retirement age have a choice between Federal retirement system benefits and FECA benefits, but they overwhelmingly elect the latter because FECA benefits are typically far more generous. Injured employees who do return to work risk the possibility that their retirement income will be less than it would have been had they stayed in the FECA system on total disability. Thus the FECA and retirement benefit structures intertwine to discourage employees from returning to work. Other features of FECA have an indirect effect on return to work and the monetary and personal costs of Federal workers’ compensation. For example FECA, like all state systems, has a waiting day provision whose original intent is to discourage the filing of workers’ compensation claims for minor injuries that resolve quickly. A waiting period before wage-loss compensation can be paid is virtually universal in state systems. In FECA, however, the waiting period is not applied until after the worker has received the full 45 days provided under FECA’s unique “continuation of pay” provision, thus defeating its very purpose. The delayed waiting period unnecessarily burdens program administration with numerous minor injuries and makes the program vulnerable to over-utilization. The figure below shows the growth of incoming injury reports after the 1974 amendments inserted the continuation of pay provision and effectively cancelled the impact of waiting days. |
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Statement of Elliot P.
Lewis May 13, 2004 Good afternoon Mr. Chairman and members of the Subcommittee. Thank you for the opportunity to testify on the work of the Office of Inspector General (OIG), U.S. Department of Labor (DOL), in the Federal Employees’ Compensation Act (FECA) program. My name is Elliot Lewis and I am the Assistant Inspector General for Audit at the OIG. Today I will highlight some of our recent audit and investigative work in FECA and outline legislative recommendations for improvement of this important program. I am accompanied by Stephen J. Cossu, Assistant Inspector General for Labor Racketeering and Fraud Investigations, who oversees investigations related to the program. He and I will be available to answer any questions the Subcommittee may have regarding the OIG’s work in the FECA program. Social Security Data Another area of concern involves the use of Social Security Administration (SSA) data. Use of this data is integral to the effective operation of the FECA program. In a September 2000 audit, we reviewed the potential use of crossmatching FECA data and SSA data to combat fraud and overpayments within the program. As a result of our crossmatch, we identified and referred for investigation, 33 cases that showed a potential cost recovery and cost avoidance of $7 million over 10 years for the FECA program. We believe that legislation allowing OWCP access to SSA wage data could provide a cost-effective tool to identify and remove dishonest claimants who conceal their earnings. Hotline The OIG receives complaints via our hotline that cover a variety of matters and allegations. During FY 2003, the OIG Hotline received 116 complaints related to OWCP and the FECA program. These complaints involved allegations of poor customer service, unfair practices, privacy concerns, mismanagement by OWCP, and fraud against the program. Some complaints are referred to OWCP for action and those dealing with allegations of fraud remain with the OIG. Fraud From an investigations point of view, the OIG investigates claimant fraud and fraud committed against the FECA program by service providers. In FY 2003, the OIG opened 154 cases, had 59 indictments, 49 convictions, and over $14 million in monetary results in the FECA program area. We also closed 153 cases from FY 2003 and prior years. The following cases are representative of the types of fraud we regularly investigate:
Recommendations to Improve the FECA Program In the past, the OIG has made recommendations to strengthen the program. These include: FECA currently has a provision that allows employees who sustain disabling job-related traumatic injuries to receive continuation of their regular pay for a period not to exceed 45 calendar days after the injuries. Currently, a three-day waiting period, before FECA benefits could begin, is at the end of the COP period, which does not serve to discourage frivolous claims. We recommend returning the three-day waiting period (before FECA benefits can start) to the beginning of the 45-day continuation-of-pay period. This would require employees to use any accrued sick leave, annual leave, or leave-without-pay for that three-day waiting period, before their FECA benefits could begin. (Should the claim be approved by OWCP, any leave used during this three-day waiting period would be restored.) Currently, FECA beneficiaries are not required to retire at any age. Therefore, beneficiaries may remain on disability for life. This results in a strong incentive to continue to receive FECA benefits, since the tax-free benefits are much greater than any retirement earnings would be. The OIG recommends that a suitable retirement age be established under the Act for FECA claimants. Once the beneficiaries reach the specified retirement age, their retirement benefits would be adjusted downward to a specified level; however, medical benefits could still be paid by OWCP.
Conclusion In conclusion Mr. Chairman, our findings and recommendations have focused on helping to make the FECA program operate more effectively and efficiently, while ensuring the integrity of the program. This concludes my written statement; Mr. Cossu and I would be pleased to answer any questions you or the other members of the Subcommittee may have. |