United States Department of Labor

Employees’ Compensation Appeals Board

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R.P., Appellant

and

DEPARTMENT OF HOMELAND SECURITY, 

CUSTOMS & BORDER PATROL, Newark, NJ,

Employer

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Docket No. 18-0681

Issued: November 1, 2018

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

ALEC J. KOROMILAS, Alternate Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On February 9, 2018 appellant filed a timely appeal from an August 16, 2017 merit 

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 the case.

ISSUE

The issue is whether OWCP properly approved attorney fees in the amount of $5,117.00

for services rendered from May 3, 2013 to July 10, 2015.

FACTUAL HISTORY

On November 14, 2011 appellant, then a 59-year-old officer, filed a traumatic injury claim 

(Form CA-1) alleging that earlier that day, while at work, he lost his grip on a ship’s ladder and 

 

1 5 U.S.C. § 8101 et seq. 
2

fell approximately six feet onto a metal deck. OWCP accepted the claim for a torn right rotator 

cuff and right shoulder contusion. On January 25, 2012 appellant underwent authorized 

arthroscopic right rotator cuff repair with biceps tenodesis, subacromial decompression, and 

debridement. He remained off work following the January 25, 2012 surgery. OWCP paid 

appellant compensation for total disability commencing January 12, 2013 on the supplemental 

compensation rolls. It later expanded acceptance of the claim to include bilateral shoulder and 

rotator cuff sprains.

On May 6, 2013 appellant authorized Thomas R. Uliase, Esq., of Uliase & Uliase, to 

represent him before OWCP. Counsel requested a copy of the complete case record. 

On May 7, 2013 counsel requested that OWCP place appellant on the periodic 

compensation rolls due to the seriousness of the accepted injury.

In late May 2013, OWCP determined that it was necessary to obtain a second opinion in 

the case and scheduled an appointment with a medical specialist. In a May 31, 2013 letter, counsel 

requested that OWCP provide proof that it had selected the second opinion specialist according to 

applicable OWCP procedures and Board precedent. He also requested a list of three qualified 

specialists in appellant’s commuting area from which appellant could choose an examining 

physician.

In a letter dated June 4, 2013, counsel requested that OWCP expand acceptance of the 

claim to include a left rotator cuff tear and full-thickness tears of the right supraspinatus and biceps 

tendons. He included recent medical reports and a summary of the relevant findings.

In a letter dated December 18, 2013, counsel notified OWCP that it had paid appellant 

compensation at an incorrect rate from January 12 to March 8, 2013. He requested that OWCP 

issue appropriate retroactive compensation. Counsel again requested that OWCP place appellant’s 

case on the periodic compensation rolls due to the seriousness of the accepted injuries and ongoing 

difficulties with the employing establishment’s processing of appellant’s claims for compensation 

(Form CA-7). He reiterated this request in a letter dated April 25, 2014. 

In a letter dated June 13, 2014, counsel requested that OWCP pay appellant compensation 

for the period December 29, 2013 to April 19, 2014 as he had been found entitled, but had not yet 

been paid for the entire period. 

In a letter dated June 26, 2014, counsel requested that OWCP authorize appellant’s 

physician’s request for Synvisc injections to the right shoulder. He attached the physician’s letter 

of necessity.

On February 3, 2015 OWCP issued retroactive compensation for the periods December 29, 

2013 to March 22, 2014 and April 6 to 19, 2014. 

On February 27, 2015 the employing establishment offered appellant a modified position,

but did not include information regarding the work schedule or rate of pay. Counsel responded by 

letter dated March 9, 2015, which asserted that the job offer failed to conform to specific sections 

of OWCP’s procedures.
3

In a letter dated May 4, 2015, counsel requested that OWCP authorize appellant’s 

physician’s request for Orthovisc injections to the left shoulder. He attached the physician’s letter 

of medical necessity. 

In letters dated May 12, 2015, counsel advised OWCP that it had failed to notify him of a 

second opinion examination scheduled for May 19, 2015. He requested that it provide him with 

copies of all correspondence to appellant and the selected specialist. Counsel also requested that 

OWCP provide a list of three qualified physicians in appellant’s commuting area so that he could 

choose one to conduct the examination.

In a letter dated June 11, 2015, counsel requested that OWCP pay appellant compensation 

for intermittent periods from May 26, 2014 through May 31, 2015 which had not yet been paid. 

In a letter dated June 18, 2015, counsel requested that OWCP approve appellant’s 

physician’s request to authorize Synvisc injections to the left shoulder. He reviewed a May 19, 

2015 second opinion report and noted that the specialist had also recommended 

viscosupplementation injections. Counsel again requested that OWCP expand acceptance of the 

claim to include bilateral rotator cuff arthropathy as recommended by the second opinion 

specialist.

In a letter dated June 26, 2015, counsel again requested that OWCP pay appellant all 

compensation due and owing from June 20, 2014 onward. He noted that OWCP’s compensation 

tracking function listed several periods as paid whereas no compensation payments had been 

issued.

On July 7 and 10, 2015 OWCP issued retroactive compensation for the period 

December 29, 2012 to June 13, 2015. 

In a letter dated July 20, 2015, counsel requested that OWCP issue a formal decision 

regarding its denial of requested viscosupplementation injections.

In letters dated July 28 and August 7, 2015, appellant stated that he no longer retained his 

legal counsel. He contended that counsel’s July 21, 2015 billing statement for $5,692.50 was 

unreasonable and that he was generally dissatisfied with counsel’s representation.

OWCP placed appellant’s case on the periodic rolls effective September 20, 2015. 

On September 14, 2015 counsel submitted a fee petition in the amount of $5,692.50 for 

services rendered from May 3, 2013 to July 10, 2015. The fee petition noted separate categories 

for attorney, paralegal, secretarial, and law clerk time, with the hours worked and the hourly rate 

for each individual’s services, as follows: 15.81 hours of attorney time at rates from $200.00 to 

$300.00 an hour; 5.29 hours of paralegal time at $150.00 an hour; 7.52 hours of secretarial time at 

$75.00 an hour, and 1.25 hours of law clerk time at $200.00 an hour. The fee petition listed the 

specific services provided and the time spent on each activity. Many of the itemized services were 

for correspondence to OWCP and review of communications from OWCP.

OWCP sent appellant an October 30, 2015 letter, noting that counsel had submitted a 

request for authorization of $5,692.50 in attorney fees. Appellant was provided an opportunity to 
4

review the fee request, and was informed that if he did not respond within 30 days, it would be 

assumed he did not wish to comment. OWCP indicated it would then approve a fee which it 

determined to be fair and reasonable. 

In a letter dated November 24, 2015, appellant asserted that he was opposed to the attorney 

fee request as counsel did nothing to further his claim. He contended specifically that he should 

not be billed for file reviews. Appellant noted that he periodically prohibited counsel from working 

on various issues in his compensation claim as he wished to advocate on his own behalf or request 

assistance from his elected representatives.

In response, counsel submitted his August 12, 2015 letter to appellant, explaining that had 

appellant not prohibited him from pursuing retroactive compensation, counsel could have obtained 

payment in a more timely manner.

By decision dated February 1, 2016, OWCP approved the fee petition in the amount of 

$5,117.00, out of the requested $5,692.50 as reasonable, as counsel had performed the work for 

which he had been retained. It excluded fees for counsel’s letters to OWCP on the following dates 

as the correspondence had not been imaged into the electronic case record: May 3, 2013 (three 

letters); May 6, 2013; May 31, 2013 (duplicate); June 3, 2013; July 11, 2013; February 14, 2014; 

February 20, 2014; April 21, 2014; June 10, 2014; May 7, 2015.

On March 2, 2016 appellant requested a telephonic oral hearing before an OWCP hearing 

representative. The hearing was held on October 3, 2016. At the hearing, appellant contended 

that OWCP did not respond to any of counsel’s correspondence and that the services provided 

were generally of no effect. He also asserted that counsel did not completely obey his directives 

to cease pursuing issues in his claim. Appellant also argued that the retroactive compensation he 

was paid was not in fact retroactive compensation because it was owed to him. He submitted 

June 4 and 21, 2013 letters from counsel regarding how to request medical records from his 

treating physicians and advising him that the firm did not pursue issues of medical malpractice. 

Following the hearing, appellant submitted an October 15, 2016 statement generally 

asserting that counsel’s services were of no effect and that the fees charged were excessive or 

unreasonable. He submitted copies of letters to and from counsel regarding the January 25, 2012 

surgical procedure and his allegations of medical malpractice. Appellant also provided copies of 

numerous letters from counsel in May and June 2013 instructing him how to obtain the medical 

reports necessary for OWCP to authorize requested treatment. 

By decision dated December 13, 2016, an OWCP hearing representative affirmed OWCP’s 

February 1, 2016 decision which approved counsel’s fee petition in the amount of $5,117.00. The 

hearing representative found that the charges were reasonable and appropriate given the nature and 

complexity of the case, and the customary charges for a representative of similar background and 

experience. 

In a letter dated February 14, 2017, counsel notified appellant of his intention to submit the 

attorney fee to a collection process under applicable state law. 

On March 21, 2017 appellant requested reconsideration. He alleged that counsel wrote 

voluminous correspondence to inflate the bill and that his services were of no effect in his claim. 
5

Appellant provided a copy of an informational booklet from counsel with suggestions on how to 

draft effective correspondence to OWCP and medical providers. He also submitted copies of 

correspondence from counsel previously of record. 

By decision dated August 16, 2017, OWCP affirmed its prior approval of counsel’s fee 

request in the amount of $5,117.00. It found that appellant’s March 21, 2017 statement and copies 

of counsel’s correspondence did not establish that the fee had been approved in error. 

LEGAL PRECEDENT

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.2 

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.3

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

representative must submit a fee application, which includes an itemized statement showing the 

hourly rate, number of hours worked, and the work performed.4 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.5 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.6

ANALYSIS

The Board finds that OWCP did not abuse its discretion by approving attorney fees in the 

amount of $5,117.00 for services rendered from May 3, 2013 to July 10, 2015. 

As discussed above, the Board does not determine the fee for representative services before 

OWCP. The Board reviews the issue to determine whether there was an abuse of discretion by 

 

2 C.H., Docket No. 17-0623 (issued June 27, 2017); W.H., Docket No. 16-1297 (issued May 9, 2017); 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).

3 Claudio Vazquez, 52 ECAB 496 (2001).

4 20 C.F.R. § 10.703(a)(1).

5

Id. at § 10.703(c).

6

Id.
6

OWCP. In this case OWCP approved $5,117.00 of the requested fee of $5,692.50, noting that 

appellant had provided general allegations that he felt counsel’s services were ineffective. Having 

reviewed the evidence, the Board does not find an abuse of discretion by OWCP.

OWCP reviewed the four factors under 20 C.F.R. § 10.703(c). As to usefulness of services, 

the Board notes that, on May 6, 2013, appellant authorized counsel to represent him before OWCP.

Following his review of the case record, counsel requested on May 9, 2013 that appellant’s case 

be placed on the periodic compensation rolls. He requested on May 31, 2013 that OWCP follow 

its procedures in selecting a second opinion physician and requested on June 4, 2013 that OWCP 

expand acceptance of the claim to include additional conditions. Counsel provided updated 

medical reports from appellant’s physician in justification of the request for expansion.

Counsel also sent OWCP six letters dated from December 18, 2013 to June 26, 2015

requesting payment of retroactive compensation, with detailed explanations of the periods owed. 

OWCP issued the retroactive compensation on February 3, July 7, and July 10, 2015.

Additionally, counsel submitted a May 4, 2015 letter which detailed the deficiencies of a 

modified-duty job offer. OWCP took no additional action on the job offer. 

Counsel also wrote letters from May 12 to July 12, 2015 regarding selection of second 

opinion physicians and requesting authorization for viscosupplementation injections.

As to the nature and complexity of the case, the issues involved included medical evidence, 

pay rate, periods of eligibility for compensation, and a modified-duty job offer. Appellant alleged 

that counsel’s services did not obtain any favorable results and that he inflated his bill by writing 

numerous useless letters. He did not provide evidence to establish that counsel failed to perform 

the itemized services as authorized. OWCP found the time spent on activities, with the exception 

of the letters which were not imaged into the electronic case record, was not unreasonable, and the 

Board finds no abuse of discretion in this regard. It found that the hourly rates listed for attorneys, 

secretaries, paralegals, and a law clerk were customary and no contrary evidence was presented. 

The Board thus finds no abuse of discretion in this regard.

The Board has frequently held that it will not interfere with or set aside a determination by 

OWCP of a fee for legal services unless the determination is clearly in error.7 OWCP has the 

discretion to approve attorney fees, and in this case, the Board finds no abuse of discretion.8

CONCLUSION

The Board finds that OWCP did not abuse its discretion in approving attorney fees of 

$5,117.00.

 

7 William Arthur Burney, 29 ECAB 253 (1978).

8 See C.H., supra note 2; R.H., Docket No. 14-0429 (issued July 28, 2014).
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ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation 

Programs dated August 16, 2017 is affirmed.

Issued: November 1, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board