United States Department of Labor

Employees’ Compensation Appeals Board

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T.B., Appellant

and

DEPARTMENT OF THE AIR FORCE, TINKER 

AIR FORCE BASE, OK, Employer

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Docket No. 18-1163

Issued: February 11, 2019

Appearances: Case Submitted on the Record

Appellant, pro se

Office of Solicitor, for the Director

DECISION AND ORDER

Before:

CHRISTOPHER J. GODFREY, Chief Judge

PATRICIA H. FITZGERALD, Deputy Chief Judge

VALERIE D. EVANS-HARRELL, Alternate Judge

JURISDICTION

On May 22, 2018 appellant filed a timely appeal from an April 20, 2018 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 this case.

2

ISSUE

The issue is whether OWCP abused its discretion in approving a fee in the amount of 

$4,500.00 for 14 hours of services rendered by then-counsel from July 26, 2011 through 

November 16, 2017.

 

1 5 U.S.C. § 8101 et seq.

2 The Board notes that following the April 20, 2018 decision, OWCP received additional evidence. However, the 

Board’s Rules of Procedure provides: “The Board’s review of a case is limited to the evidence in the case record that 

was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board 

for the first time on appeal.” 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional 

evidence for the first time on appeal. Id.
2

FACTUAL HISTORY

On September 27, 2006 appellant, then a 42-year-old aircraft mechanic, filed a traumatic 

injury claim (Form CA-1) alleging that, on September 22, 2006, he injured his lower back while

climbing into a forward lower lobe of an aircraft at work. OWCP accepted the claim for sprain of 

back, lumbar region and degeneration of thoracic or thoracolumbar intervertebral disc. Appellant 

had periods of intermittent disability during the period May 8, 2007 through January 3, 2011. He 

stopped work again on May 5, 2011 and claimed a recurrence of disability. 

On August 5, 2011 appellant authorized Alan J. Shapiro, Esq. to represent him in all 

matters arising out of his workers’ compensation claim. 

By decision dated October 3, 2011, OWCP accepted that appellant sustained a recurrence 

of disability on May 5, 2011.

On November 21, 2012 OWCP determined that the position of aircraft engine repairer was 

available and suitable in accordance with appellant’s medical limitations as provided by Dr. Sai R. 

Framjee, an orthopedic spine surgeon serving as an impartial medical specialist, in his amended 

report of April 26, 2012.

On November 26, 2012 appellant retired effective December 1, 2012, and elected to 

receive Office of Personnel Management (OPM) benefits in lieu of FECA compensation benefits.

By decision dated February 15, 2013, OWCP finalized an overpayment of compensation 

in the amount of $1,472.19 for the period December 1 through 15, 2012 as appellant was not 

entitled to FECA benefits after OPM benefits were elected. While it found that he was without 

fault in the creation of the overpayment of compensation, it denied waiver of recovery of the 

overpayment as no financial information had been received from appellant to establish a basis for 

granting waiver of recovery of the overpayment.

In 2017 OWCP received evidence pertaining to a schedule award due to his accepted 

employment conditions from his treating physician, Dr. John W. Ellis, Board-certified in family 

medicine.3 

On September 28, 2017 OWCP referred the case to Dr. Arthur S. Harris, a Board-certified 

orthopedic surgeon, serving as an OWCP district medical adviser (DMA), for an evaluation of 

permanent impairment of appellant’s lower extremities. Dr. Harris issued his impairment rating

report on September 30, 2017.

By decision dated November 8, 2017, OWCP granted appellant a schedule award for 10 

percent permanent impairment of his right lower extremity. The award ran for 28.8 weeks from 

September 24, 2015 to April 12, 2016 and was based on the reports from Dr. Ellis and Dr. Harris. 

The record reflects that then-counsel filed several letters pertaining to the status of the schedule 

award claim prior to its issuance. 

 

3 The record does not contain a Form CA-7 requesting a schedule award.
3

On December 12, 2017 OWCP received a letter from appellant requesting a copy of his 

files. Appellant noted that his then-counsel “states that he did a lot of work and wants to[o] much 

money.” OWCP also received then-counsel’s fee application in the amount of $4,500.00 for 14 

hours of services rendered from July 26, 2011 through November 16, 2017 in the current claim. 

An itemized statement listing the services and time spent on each date was provided.4 The time 

spent for each service ranged from 5 minutes to no more than 90 minutes, for a total of 840 minutes, 

or 14 hours. Then-counsel’s hourly rate was $325.00 per hour. The total fee requested was in the 

amount of $4,550.00 with an “agreed fee” of $4,500.00. In his December 11, 2017 cover letter, 

then-counsel requested that OWCP assist in processing the fee request of $4,550.00 -- not the 

“agreed fee” of $4,500.00. He explained that appellant had not signed the fee petition nor had he 

returned the fee petition with payment.

In a February 15, 2018 letter, OWCP forwarded to appellant a copy of the fee application 

in the amount of $4,550.00 for services rendered from July 26, 2011 through November 16, 2017. 

It afforded him 30 days to comment on the fee application request and to denote whether the fee 

charged was reasonable and appropriate.

On March 22, 2018 appellant advised that he did not approve of the fee. He noted that, 

based on his review of the file, his prior counsel did nothing to help his case. Appellant also 

alleged that his then-counsel’s office had not called or answered his e-mails since 2014.

By decision dated April 20, 2018, OWCP approved then-counsel’s fee petition in the 

amount of $4,500.00 for services rendered from July 26, 2011 through November 16, 2017. 

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 

 

4 The services provided included writing letters to appellant and to OWCP, telephone conferences, e-mail 

exchanges, review of OWCP’s decisions, and submissions of schedule award packets to OWCP. 

5 See T.S., Docket No. 17-1706 (issued July 10, 2018); Alvin T. Groner, Jr., 47 ECAB 588 (1996); Edward Snider,

39 ECAB 1268 (1988).

6 See R.P., Docket No. 18-0681 (issued November 1, 2018); Claudio Vazquez, 52 ECAB 496 (2001); Daniel J. 

Perea, 42 ECAB 214, 221 (1990).

7 20 C.F.R. § 10.703(a)(2).
4

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

the claimant’s agreement with the fee,8the 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; (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

The Board finds that the case is not in posture for decision. 

In its April 20, 2018 decision, OWCP approved then-counsel’s fee petition in the amount 

of $4,500.00 for services rendered from July 26, 2011 through November 16, 2017. However,

appellant had disputed the fee petition, and specifically disputed the usefulness of his services. 

OWCP’s regulation provides 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.12 OWCP failed to make findings in its decision 

which considered the fee application according to applicable regulatory requirements.

13

 

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

abused its discretion in approving then-counsel’s fee petition in the amount of $4,500.00 for 

services rendered from July 26, 2011 through November 16, 2017.14 

 

8

Id. at § 10.703(b).

9 See R.P., supra note 6; see also Helen J. Cavorley, Docket No. 02-2325 (issued February 7, 2003).

10 20 C.F.R. § 10.703(c).

11 Id.

12 See supra note 10.

13 5 U.S.C. § 8124(a) provides that OWCP shall determine and make a finding of facts and make an award for or 

against payment of compensation. 20 C.F.R. § 10.126 provides in pertinent part that the final decision of OWCP shall 

contain findings of fact and a statement of reasons. See also 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).

14 See C.S., Docket No. 18-0047 (issued March 15, 2018); J.J., Docket No. 17-0825 (issued June 13, 2017).
5

The Board will therefore set aside OWCP’s April 20, 2018 decision and remand the case 

to OWCP for further consideration of this matter, to be followed by the issuance of a de novo 

decision containing adequate facts and findings.15

CONCLUSION

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

abused its discretion in approving then-counsel’s fee in the amount of $4,500.00 for 14 hours of 

services rendered from July 26, 2011 through November 16, 2017.

ORDER

IT IS HEREBY ORDERED THAT the April 20, 2018 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: February 11, 2019

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Valerie D. Evans-Harrell, Alternate Judge

Employees’ Compensation Appeals Board

 

15 See supra note 13.