United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

S.D., Appellant 

and 

U.S. POSTAL SERVICE, TEUTONIA 

STATION, Milwaukee, WI, Employer 

__________________________________________ 

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Docket No. 14-1851 

Issued: May 22, 2015 

Appearances: Case Submitted on the Record

Appellant, pro se 

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

ALEC J. KOROMILAS, Alternate Judge 

JURISDICTION 

On August 20, 2014 appellant filed a timely appeal from a May 30, 2014 merit decision 

and a July 18, 2014 nonmerit decision of the Office of Workers’ Compensation Programs 

(OWCP). Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. 

§§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 

ISSUES 

The issues are: (1) whether OWCP properly approved attorney fees in the amount of 

$2,816.66 for services rendered for 8.67 hours from March 4, 2009 to March 26, 2012; and 

(2) whether OWCP properly refused to reopen appellant’s case for further review of the merits 

pursuant to 5 U.S.C. § 8128(a). 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

This case has previously been before the Board. The pertinent facts follow. On 

February 4, 2009 appellant, then a 37-year-old mail carrier, filed a traumatic injury claim 

alleging that on January 24, 2009 she sustained left shoulder strain due to casing mail and 

streeting.2

 OWCP accepted the claim for left shoulder and upper arm sprain, which was 

subsequently expanded to include the conditions of left shoulder adhesive capsulitis; cervical 

degenerative disc disease at C7-T1 and cervical spondylosis without myelopathy and authorized 

June 4, 2009 surgery for the left shoulder. On March 11, 2009 appellant filed an occupational 

disease claim (under File No. xxxxxx792) alleging that on November 18, 2004 she first became 

aware of her right shoulder condition. OWCP accepted the claim for a right shoulder condition 

not otherwise classified and authorized a June 10, 2010 right shoulder surgery.3

Appellant filed a claim for a schedule award on March 5, 2012. On March 20, 2012 

OWCP granted a schedule award for eight percent impairment each for the right and left upper 

extremities. The period of the award ran from March 11, 2012 to February 23, 2013. 

Appellant appealed to the Board, and by decision dated June 14, 2013, the Board set 

aside the March 20, 2012 schedule award decisions and a July 9, 2012 decision denying a 

hearing of the March 20, 2012 decision as untimely.4

 The Board found that an OWCP medical 

adviser’s report was insufficient to form a basis for a schedule award determination as he failed 

to adequately explain how his calculations had been reached. 

On November 21, 2012 Mr. Shapiro requested approval of his attorney fees.5 He 

submitted a fee petition noting an hourly rate of approximately $325.00 and an itemization of 

services totaling 9.67 hours for a total of $3,141.66. 

On November 28, 2012 OWCP returned Mr. Shapiro’s fee petition to him as he had 

failed to obtain appellant’s signature, pursuant to 20 C.F.R. § 10.703(a)(2). 

In a February 12, 2013 letter, OWCP reiterated that it was unable to process 

Mr. Shapiro’s attorney fee petition as it was incomplete due to the lack of appellant’s signature. 

It advised counsel of its regulations at 20 C.F.R. § 10.703(c) which requires counsel to forward 

the fee request to appellant to afford her the opportunity to respond. 

Counsel forwarded the fee request to appellant and by correspondence dated March 6, 

2013, appellant refused to agree to the fee petition as she had not retained Mr. Shapiro’s services 

and that no monies were owed to him. Appellant claimed to have only asked for a free 

 2

 OWCP assigned File No. xxxxxx745. 

3

 On April 30, 2009 OWCP combined OWCP File No. xxxxxx792 with OWCP File No. xxxxxx745, with the 

latter OWCP file number as the Master OWCP file number. 

4

 Docket No. 12-1847 (issued June 14, 2013). 

5

 On March 9, 2009 appellant signed a form authorizing Alan Shapiro, Esq., to represent her in all matters arising 

out of her claim before OWCP. Although the form was signed by appellant, the case number had been handwritten 

on the form. 
3

consultation one time in 2004 in a previous claim. Attached to her letter was Mr. Shapiro’s fee 

petition with her signature disapproving the requested fee. 

In a decision dated April 4, 2013, OWCP approved attorney fees in the amount of 

$2,816.66 for services rendered from March 4, 2009 to March 26, 2012. Counsel had charged 20 

minutes for the preparation of three letters dated November 1, 2009, and May 1 and 

June 2, 2010. As no letters with those dates were contained in the file, OWCP disallowed the 

time claimed (20 minutes x 3 letters = 1 hour) for the three documents. Thus, the fee of 

$3,141.66 was reduced by one hour or $325.00, which resulted in an approved fee of $2,816.66. 

On April 25, 2013 appellant disagreed with the April 4, 2013 attorney fee decision and 

requested a review of the written record by an OWCP hearing representative. She alleged that a 

review of the fee petition showed that Mr. Shapiro did not respond to OWCP in a timely fashion 

or within the time limits set by OWCP. Appellant related that she agreed to a percentage only if 

both of her claims were reopened and that she has not received any award of compensation. She 

stated that she did not agree to the hourly rate and that she felt Mr. Shapiro provided no 

representation during the period in question. In concluding, appellant noted that, as the case was 

open and she was still receiving medical treatment for her injuries, she did not believe that he 

was entitled to attorney fees. 

By decision dated May 30, 2014, an OWCP hearing representative affirmed the April 4, 

2013 decision. 

On June 23, 2014 appellant requested reconsideration of the May 30, 2014 OWCP 

hearing representative’s decision and, in an attached June 18, 2014 letter, reiterated her 

contentions as to why Mr. Shapiro was not entitled to the requested fee amount. 

By decision dated July 18, 2014, OWCP denied appellant’s request for reconsideration 

without reviewing the merits of her claim. 

LEGAL PRECEDENT -- ISSUE 1 

It is not the Board’s function to determine the fee for representative services performed 

before OWCP. That is a function within the discretion of OWCP based on the criteria set forth 

in Title 20 of the Code of Federal Regulations and mandated by Board decisions. The Board’s 

sole function is to determine whether the action by OWCP constituted an abuse of discretion.6

 

Generally, an abuse of discretion is shown through proof of manifest error, clearly unreasonable 

exercise of judgment, or actions taken which are contrary to both logic and probable deductions 

from established facts.7

 

Section 10.703 of the Code of Federal Regulations provide in pertinent part that a 

representative must submit a fee application, which includes a statement of agreement or 

 6 L.H., Docket No. 11-900 (issued December 6, 2011); C.H., Docket No. 10-987 (issued March 22, 2011); Eric B. 

Petersen, 57 ECAB 680 (2006); Sharon Edwards, 56 ECAB 749 (2005). 

7 Daniel J. Perea, 42 ECAB 214, 221 (1990), (Thomas, Alternate Member, dissenting). 
4

disagreement with the amount charged, signed by the claimant.8

 When a fee application has 

been disputed, OWCP is required to provide the claimant with a copy of the fee application and 

request the submission of further information in support of any objection.9

 After the claimant 

has been afforded 15 days from the date the request was forwarded to respond to the request, 

OWCP will then proceed to review the fee application to determine whether the amount of the 

fee is substantially in excess of the value of services received by looking at the following factors: 

(1) usefulness of the representative’s services; (2) the nature and complexity of the claim; (3) the 

actual time spent on development and presentation of the claim; and (4) customary local charges 

for services for a representative of similar background and experience.10 Contingency fee 

arrangements are not recognized under FECA.11

ANALYSIS -- ISSUE 1 

The Board finds that this case is not in posture for a decision regarding OWCP’s approval 

of attorney fees of $2,816.66. Appellant asserts that she signed a contingency fee agreement 

based on the reopening of both her claims and that she did not agree to a fee agreement based on 

an hourly rate. In her June 18, 2014 letter, she further asserted that she requested the attorney to 

provide her with a copy of the contingency fee agreement, but the attorney never provided her 

with a copy of the contingency fee agreement despite multiple requests. The Board notes that 

the record does not contain a copy of the fee agreement between the parties. As the fee 

agreement is not contained in the record the Board is unable to determine whether appellant 

agreed to an hourly rate or to a contingency fee agreement, as asserted by appellant. As the 

record is devoid of any evidence regarding the type of fee agreement made between the parties, 

on remand OWCP shall obtain a copy of the fee agreement from the attorney in determining 

whether appellant had signed a contingency fee agreement or an hourly rate fee agreement. 

Following any necessary further development, OWCP shall issue a de novo decision regarding 

the attorney’s fee application according to the applicable regulatory procedures. 

CONCLUSION 

The Board finds that OWCP finds that this case is not in posture for a decision. In light 

of the Board’s disposition on the first issue, the second issue is moot. 

 8

 20 C.F.R. § 10.703(a)(i). 

9 Id. at § 10.703(c). 

10 Id. at § 10.703(c)(1)(i-iv). 

11 Id. at § 10.703(b); see also Angela M. Sanden, Docket No. 04-1632 (issued September 20, 2004); Eric B. 

Petersen, 57 ECAB 680 (2006); Sharon Edwards, 56 ECAB 749 (2005). 
5

ORDER 

IT IS HEREBY ORDERED THAT the decisions of the Office of Workers’ 

Compensation Programs dated July 18 and May 30, 2014 are set aside and the case remanded for 

further proceedings consistent with the above opinion. 

Issued: May 22, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Alec J. Koromilas, Alternate Judge 

 Employees’ Compensation Appeals Board