United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

J.J., Appellant 

and 

ARCHITECT OF THE CAPITOL, CAPITOL 

VISITOR CENTER, Washington, DC, Employer 

__________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 17-0825 

Issued: June 13, 2017 

Appearances: Case Submitted on the Record

Daniel M. Goodkin, Esq.

Office of Solicitor, for the Director 

DECISION AND ORDER 

Before: 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

VALERIE D. EVANS-HARRELL, Alternate Judge 

JURISDICTION 

On February 27, 2017 counsel filed a timely appeal from a February 9, 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 this issue. 

ISSUE 

The issue is whether OWCP abused its discretion by denying an attorney’s fee in the 

amount of $2,969.00 for services rendered from May 20 to August 2, 2016. 

FACTUAL HISTORY 

On October 7, 2011 OWCP accepted that appellant, then a 34-year-old visitor’s guide, 

sustained a sesmoid fracture of her great right toe due to the standing and walking required by 

 1

 5 U.S.C. § 8101 et seq.
2

her job over time. Appellant intermittently stopped work and received disability compensation 

on the daily rolls for intermittent periods beginning October 19, 2011.2

Appellant was terminated from the employing establishment effective March 4, 2015. 

She filed a recurrence claim (Form CA-2a) alleging a recurrence of disability for the period 

March 4, 2015 and continuing. In a June 8, 2016 decision, OWCP accepted appellant’s 

recurrence claim for the period March 4 to September 10, 2015.3

 

On June 21, 2016 counsel submitted a fee application in the amount of $2,275.50 for 

services rendered from December 3, 2015 to May 11, 2016. The fee application was 

accompanied by a statement from appellant, signed on June 6, 2016, indicating her agreement 

with the requested fee amount and acknowledging that the fee was her responsibility. 

In a June 24, 2016 decision, OWCP approved the attorney’s fee application in the amount 

of $2,275.50 for services rendered from December 3, 2015 to May 11, 2016. 

In a July 29, 2016 letter to OWCP, counsel requested, on behalf of appellant, that the 

accepted work-related conditions be expanded to include migraine headaches. He attached a 

statement from appellant in which she discussed why she felt her migraine headaches were 

related to her former employment. In an August 4, 2016 letter, OWCP requested that appellant 

submit additional evidence in support of her claim to expand the accepted conditions. 

By letter dated September 8, 2016, counsel submitted a fee application in the amount of 

$2,969.00 for services rendered from May 20 to August 2, 2016. He attached a statement of 

services containing language asking appellant whether she approved of the fee application in the 

amount of $2,969.00. Appellant had not signed the document. 

In a September 21, 2016 letter, OWCP forwarded to appellant a copy of counsel’s fee 

application in the amount of $2,969.00 for services rendered from May 20 to August 2, 2016. It 

provided her 30 days to comment on the fee application request and to denote whether the fee 

charged was reasonable and appropriate. 

On September 23, 2016 OWCP received a September 19, 2016 letter from appellant to 

counsel in which appellant indicated that she would not be approving the fee application in the 

amount of $2,969.00 because she felt that counsel’s services were not useful with respect to her 

claim to expand the accepted conditions. In an October 14, 2016 letter to OWCP, appellant 

advised that she was rejecting the fee application in the amount of $2,969.00, noting that the fee 

was not reasonable because counsel’s services were not useful to her as a claimant.4

 She also 

submitted a copy of a December 4, 2015 e-mail she had sent to counsel noting that she was 

 2

 Appellant received disability compensation on the periodic rolls for the period May 5, 2013 to 

October 18, 2014. 

3

 Appellant received disability compensation on the daily rolls for the period March 4 to September 10, 2015. 

4

 Appellant asserted that a majority of counsel’s time was spent on updates and meetings to discuss the case, and 

that no legal action had been taken to move the case forward. 
3

financially unable to invest any more money into the case, and that she no longer wished to 

employ his services. 

In a February 9, 2017 decision, OWCP denied the attorney’s fee application in the 

amount of $2,969.00 for services rendered from May 20 to August 2, 2016 noting that appellant 

had not signed a fee approval for these services. It advised that appellant had contested the fees 

indicating that she did not find the services of counsel’s office useful, that a majority of the time 

was spent on updates and meetings to discuss the case, and that no legal action had been taken to 

move the case forward. OWCP noted that she provided a December 4, 2015 e-mail to counsel 

noting that she was financially unable to invest any more money into the case, and that she no 

longer wished to employ his services. 

LEGAL PRECEDENT 

It is not the function of the Board to determine the fee for services performed by a 

representative of a claimant before OWCP. That function is 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 sole function of the Board on appeal is to determine whether the action of 

OWCP constituted an abuse of discretion.5

 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.6 

Section 10.703(a)(2) of the Code of Federal Regulations provides 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.7 While the regulations provide 

that a fee application is deemed approved when it is accompanied by a signed statement 

indicating the claimant’s agreement with the fee,8 the regulations do not specifically provide for 

approval when a claimant fails to contest a fee application.9 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.10 After the claimant 

has been afforded a reasonable time to respond to the request, OWCP will then proceed to 

review the fee application. Pursuant to section 10.703(c), when a fee is in dispute OWCP will 

determine whether the amount of the fee is substantially in excess of the value of services 

received by looking at the following factors: (i) Usefulness of the representative’s services; 

 5 Alvin T. Groner, Jr., 47 ECAB 588 (1996); Edward Snider, 39 ECAB 1268 (1988). 

6 Daniel J. Perea, 42 ECAB 214, 221 (1990). 

7

 20 C.F.R. § 10.703(a)(2). 

8 Id. at § 10.703(b). 

9 See Helen J. Cavorley, Docket No. 02-2325 (issued February 7, 2003). 

10 20 C.F.R. § 10.703(c). 
4

(ii) The nature and complexity of the claim; (iii) The actual time spent on development and 

presentation of the claim; and (iv) Customary local charges for similar services.11 

ANALYSIS 

On September 19, 2016 counsel submitted a fee application in the amount of $2,969.00 

for services rendered from May 20 to August 2, 2016. In a September 21, 2016 letter, OWCP 

provided appellant 30 days to comment on the fee application request and to denote whether the 

fee charged was reasonable and appropriate. It received communications from appellant 

indicating that she would not approve the fee application in the amount of $2,969.00 because she 

felt that counsel’s services were not useful. In a February 9, 2017 decision, OWCP denied the 

requested fee of $2,969.00 without considering any of the factors enumerated in section 

10.703(c) of OWCP’s regulations. Rather, it based its determination on appellant’s responses to 

its June 21, 2016 letter in which she indicated that she would not sign a statement approving the 

fee application.12 

OWCP’s regulations provide that, when a fee is in dispute, OWCP will determine 

whether the amount of the fee is substantially in excess of the value of services received by 

looking at the following factors: (i) Usefulness of the representative’s services; (ii) The nature 

and complexity of the claim; (iii) The actual time spent on development and presentation of the 

claim; and (iv) Customary local charges for similar services.13 Consequently, the Board finds 

that the case is not in posture for decision regarding whether OWCP abused its discretion by 

denying an attorney’s fee in the amount of $2,969.00 and the case must be remanded to OWCP 

to consider the attorney’s fee application according to the applicable regulatory procedures.14

CONCLUSION 

The Board finds that the case is not in posture for decision regarding whether OWCP 

abused its discretion by denying an attorney’s fee in the amount of $2,969.00 for services 

rendered from May 20 to August 2, 2016. 

 11 Id. 

12 OWCP also mentioned a December 4, 2015 e-mail in which appellant indicated that she wished to terminate 

counsel’s services. The Board notes, however, that appellant continued to enlist counsel’s services after that date 

and she agreed to a fee application in the amount of $2,275.50 for services rendered from December 3, 2015 to 

May 11, 2016. In a June 24, 2016 decision, OWCP approved the fee application in the amount of $2,275.50. 

13 See supra note 11. 

14 See K.C., Docket No. 06-2130 (issued July 24, 2007). In K.C., the Board found that the case was not in posture 

for decision regarding whether OWCP abused its discretion with respect to its determination regarding a fee 

application because OWCP had not adequately considered the factors denoted in 20 C.F.R. § 10.703(c). 
5

ORDER 

IT IS HEREBY ORDERED THAT the February 9, 2017 decision of the Office of 

Workers’ Compensation Programs is set aside, and the case is remanded to OWCP for further 

action consistent with this decision. 

Issued: June 13, 2017 

Washington, DC 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees’ Compensation Appeals Board 

 

 Valerie D. Evans-Harrell, Alternate Judge 

 Employees’ Compensation Appeals Board