United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.C., Appellant 

and 

DEPARTMENT OF HOMELAND SECURITY, 

U.S. CITIZENSHIP & IMMIGRATION 

SERVICES, Miami, FL, Employer 

__________________________________________ 

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Docket No. 15-284 

Issued: May 14, 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 

JAMES A. HAYNES, Alternate Judge 

JURISDICTION 

On November 19, 2014 appellant filed a timely appeal from a May 30, 2014 merit 

decision and an August 21, 2014 attorney fee 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 terminated appellant’s wage-loss and 

medical compensation benefits effective June 1, 2014; and (2) whether it abused its discretion by 

approving appellant’s prior counsel’s fee in the amount of $4,560.00. 

 1

 5 U.S.C. § 8101 et seq. 
2

FACTUAL HISTORY 

OWCP accepted that on March 30, 2012 appellant, then a 53-year-old clerk, sustained a 

cervical sprain and cervicalgia while lifting file boxes. Following emergency room treatment on 

April 4, 2012, he was followed by Dr. Christopher Brown, an attending Board-certified 

orthopedic surgeon, who ordered a magnetic resonance imaging (MRI) scan, which was 

performed on May 16, 2012 that showed cervical spondylosis with central stenosis at C4-5, 

C6-7, a disc herniation at C3-4, and bilateral foraminal stenosis from C4 to 7 due to spondylitic 

changes.2

 Appellant stopped work at the time of injury. He reported for duty on May 23, 2012, 

again stopped work and did not return. 

Dr. Guillermo Pasarin, an attending Board-certified neurosurgeon, provided an 

August 17, 2012 report noting multilevel spondylitic disc disease from C3 through C7, with 

myelomalacia at C5-6 consistent with appellant’s neurologic symptoms in the right upper 

extremity, and advanced degenerative disc disease with congenital stenosis. He opined that the 

accepted cervical sprain likely exacerbated appellant’s preexisting degenerative conditions, 

causing them to become symptomatic. 

Dr. Brown provided duty restrictions through March 2013 due to impaired cervical spine 

strength and mobility.3

 He opined that appellant reached maximum medical improvement as of 

March 8, 2013, with a permanent restriction against lifting or carrying more than 25 pounds. 

On June 3 2013 OWCP obtained a second opinion report from Dr. Peter J. Millheiser, a 

Board-certified orthopedic surgeon, who reviewed the medical record and a statement of 

accepted facts. Dr. Millheiser related appellant’s symptoms of numbness and paresthesias in 

both hands and feet, as well as neck and back pain. On examination, he found voluntarily 

restricted motion of the cervical, thoracic, and lumbar spine without spasm, tenderness, trigger 

points, motor loss, or neurologic abnormalities. Dr. Millheiser noted hypoesthesia of the dorsal 

aspect of the first ray in both feet and on the plantar surfaces of the hallux bilaterally. He 

diagnosed a cervical sprain, cervical spondylosis, cervical radiculopathy, a focal disc herniation 

at C3-4, bilateral cervical canal stenosis, and bilateral foraminal stenosis. Dr. Millheiser opined 

that the accepted cervical sprain had ceased without residuals. He explained that appellant’s 

ongoing symptoms were caused by preexisting degenerative disc disease, unaffected by his 

sedentary work duties as described in the statement of accepted facts. Dr. Millheiser found 

appellant able to perform full-duty work with no restrictions. 

In a September 19, 2013 addendum, Dr. Millheiser stated that Dr. Pasarin’s report 

demonstrated that appellant’s “main problems [were] the preexisting advanced degenerative 

disease,” which may have been exacerbated by the accepted injury. On February 6, 2014 he 

added that the accepted cervical sprain caused a temporary, resolved aggravation of preexisting 

degenerative, disc disease and cervical spondylosis. 

 2

 Appellant had concomitant diagnoses of major depressive disorder and obstructive sleep apnea related to his 

military service. 

3

 Appellant participated in physical therapy from May through September 2012. 
3

Appellant’s counsel at the time provided a February 7, 2014 letter asserting that both 

Dr. Brown and Dr. Millheiser supported a continuing causal relationship between appellant’s 

ongoing symptoms and the accepted cervical sprain. OWCP placed appellant’s case on the 

periodic rolls as of March 9, 2014. 

By notice dated April 9, 2014, OWCP advised appellant that it proposed to terminate his 

wage-loss and medical compensation benefits as the accepted cervical sprain and cervicalgia had 

ceased without residuals, considering Dr. Millheiser’s opinion the weight of the medical 

evidence. It afforded him 30 days to submit additional evidence and argument. 

Appellant provided a May 9, 2014 statement disagreeing with the proposed termination. 

He asserted that he was unable to work due to back and neck pain, as well as side effects from 

prescribed medications. Appellant submitted a May 8, 2014 report from Dr. Brown, noting that 

physical therapy was not effective in reducing appellant’s symptoms. On examination, 

Dr. Brown found a normal range of motion in the cervical spine, no paraspinal tenderness or 

trigger points, and normal reflexes throughout the extremities. He opined that appellant 

remained at maximum medical improvement. Dr. Brown recommended a pain management 

program. 

By decision dated May 30, 2014, OWCP finalized the termination of appellant’s wageloss and medical compensation benefits effective June 1, 2014 finding that the accepted neck 

sprain had ceased without residuals. It accorded Dr. Millheiser the weight of the medical 

evidence. 

On June 17, 2014 appellant’s prior counsel requested that OWCP approve a fee request 

for $4,560.00 for 15.2 hours of work from June 4, 2012 to March 11, 2014, at the rate of $300.00 

an hour. Counsel noted that he rendered an additional three hours of legal services in appellant’s 

case for which he did not charge appellant. He explained that appellant had signed an agreement 

agreeing to pay the fee, but then “expressed no interest in paying any type of [representative] fee, 

although he is well aware that he [was] responsible for payment.” Counsel provided an itemized 

timesheet, describing the type, and duration of the services provided on the 46 listed dates. 

In a June 18, 2014 letter, OWCP requested that appellant comment on his counsel’s fee 

request for $4,560.00. It advised him that, if he did not respond by July 18, 2014, it would 

assume that he did not wish to comment on the fee and would consider the fee request approved 

as fair and reasonable. 

In a June 22, 2014 letter, appellant contended that he had active residuals of the accepted 

injury and disputed the termination of his compensation. He submitted his claim form and 

medical evidence dated from 2002 to 2004 related to the right thumb and right elbow. Appellant 

did not address counsel’s fee request. 

By decision dated August 21, 2014, OWCP approved the request for a $4,560.00 fee for 

services rendered from June 4, 2012 to March 11, 2014. It found that appellant had failed to 

raise a timely objection to the proposed fee. 
4

LEGAL PRECEDENT -- ISSUE 1 

Once OWCP has accepted a claim and pays compensation, it bears the burden to justify 

modification or termination of benefits.4

 Having determined that an employee has a disability 

causally related to his or her federal employment, OWCP may not terminate compensation 

without establishing either that the disability has ceased or that it is no longer related to the 

employment.5

ANALYSIS -- ISSUE 1 

OWCP accepted that appellant sustained a cervical sprain and cervicalgia in a March 30, 

2012 lifting incident. Apart from a brief return to work on May 23, 2012, appellant stopped 

work on the date of injury and did not return. Dr. Brown, the attending Board-certified 

orthopedic surgeon, diagnosed significant degenerative cervical disc disease with foraminal 

stenosis. Dr. Pasarin, the attending Board-certified neurosurgeon, opined that the accepted 

sprain aggravated the preexisting cervical spine conditions. OWCP obtained a second opinion 

from Dr. Millheiser, a Board-certified orthopedic surgeon, who submitted June 3 and 

September 19, 2013, and February 6, 2014 reports. Dr. Millheiser opined that the accepted 

cervical sprain temporarily aggravated underlying degenerative disc disease. OWCP terminated 

appellant’s wage-loss and medical benefits effective June 1, 2014, based on Dr. Millheiser’s 

reports as the weight of the medical evidence. 

Dr. Millheiser provided detailed medical rationale, based on the complete medical record 

and statement of accepted facts. He explained that the accepted cervical sprain resolved as there 

were no objective findings on examination. Dr. Millheiser found appellant fit for full-duty work. 

Dr. Brown also found that appellant had reached maximum medical improvement as of March 8, 

2013, and he could perform full-time modified duty. He found appellant’s condition unchanged 

as of May 8, 2014, concurring with Dr. Millheiser that appellant had no objective neurologic 

abnormalities on examination attributable to the accepted cervical sprain. Neither Dr. Millheiser 

nor Dr. Brown found continuing residuals of the accepted injury. The Board, therefore, finds 

that OWCP’s May 30, 2014 decision terminating appellant’s medical and wage-loss 

compensation was proper under the law and facts of the case. 

On appeal, appellant alleges that OWCP sabotaged his compensation case by denying 

him necessary medical care and ignoring his neurologic symptoms. He asserts the need for 

cervical discectomies to address neurologic difficulties with his bladder, right hand, and both 

feet. The Board notes that there is no evidence of record that OWCP mishandled appellant’s 

case or denied him medical care required by the accepted injuries. 

LEGAL PRECEDENT -- ISSUE 2 

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 

 4 Bernadine P. Taylor, 54 ECAB 342 (2003). 

5 Id.
5

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 

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 similar services.10 

ANALYSIS -- ISSUE 2 

The Board finds that OWCP did not abuse its discretion. OWCP considered the detailed 

fee application submitted by appellant’s counsel, describing the specific legal services provided 

on 46 dates from June 4, 2012 to March 11, 2014. Counsel preferred that appellant had signed 

an agreement acknowledging his responsibility to pay the legal fee. 

OWCP advised appellant by June 18, 2014 letter of his counsel’s fee request and of his 

opportunity to submit evidence or argument against approval of the fee. It explained that, if he 

did not respond, it would approve the fee as fair and reasonable. Appellant provided a June 22, 

2014 letter discussing his symptoms, but did not address counsel’s fee issue. Therefore, OWCP 

approved the fee request by decision dated August 21, 2014. The Board finds that, as appellant 

did not object to the approval of the fee request, OWCP did not abuse its discretion by approving 

the $4,560.00 fee for 15.2 hours of legal services rendered from June 4, 2012 to March 11, 2014. 

On appeal, appellant contends that OWCP failed to mail him a notice of oral hearing on 

an unspecified issue because it was solely within the Board’s jurisdiction. It appears that he is 

referring to the fee issue. However, counsel’s fee decision, with attached appeal rights, was sent 

to appellant’s address of record. To the extent that appellant asserts he should have a 

 6

 J.P., Docket No. 11-63 (issued June 19, 2012); L.H., Docket No. 11-900 (issued December 6, 2011); C.H., 

Docket No. 10-987 (issued March 22, 2011). 

7 Daniel J. Perea, 42 ECAB 214 (1990). 

8

 20 C.F.R. § 10.703(a)(i). 

9 Id. at § 10.703(c). 

10 Id. 
6

hearing with regard to issues that are before the Board in the present appeal, the Board and 

OWCP may not simultaneously have jurisdiction over the issues in a case.11 

CONCLUSION 

The Board finds that OWCP properly terminated appellant’s wage-loss and compensation 

benefits effective June 1, 2014 because the accepted cervical sprain and cervicalgia resolved 

without residuals. The Board further finds that OWCP properly approved his counsel’s fee in the 

amount of $4,560.00. 

ORDER 

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

Compensation Programs dated August 21 and May 30, 2014 are affirmed. 

Issued: May 14, 2015 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

 11 See Arlonia B. Taylor, 44 ECAB 591 (1993); Russell E. Lerman, 43 ECAB 770 (1992); Douglas E. Billings, 41 

ECAB 880 (1990).