United States Department of Labor

Employees’ Compensation Appeals Board

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T.S., Appellant

and

U.S. POSTAL SERVICE, CINCINNATI 

PERFORMANCE & DISTRIBUTION CENTER, 

Cincinnati, OH, Employer

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Docket No. 17-1706

Issued: July 10, 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

PATRICIA H. FITZGERALD, Deputy Chief Judge

ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On August 1, 2017 appellant filed a timely appeal from a July 14, 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 abused its discretion in approving an attorney’s fee in the 

amount of $4,745.00 for services rendered from November 23, 2011 through December 29, 2014. 

 

1 5 U.S.C. § 8101 et seq.
2

FACTUAL HISTORY

On April 28, 2011 appellant, then a 51-year-old dock clerk, filed a traumatic injury claim 

(Form CA-1) alleging that, on April 26, 2011, she sustained a right shoulder injury while opening 

a track door. She stopped work on that date and returned to limited duty on May 11, 2011.

By decision dated November 17, 2011, OWCP accepted that appellant sustained a right 

shoulder strain and aggravation of her right shoulder osteoarthritis. 

Appellant thereafter filed a series of claims for compensation (Form CA-7) alleging 

intermittent disability commencing October 22, 2011. 

The record indicates that on November 27, 2011 appellant authorized counsel, Alan J.

Shapiro, Esq. to represent her in all matters arising out of her workers’ compensation claim. 

On December 20, 2011 OWCP denied appellant’s claims for compensation for wage loss 

subsequent to October 22, 2011. It found that the medical evidence of record was insufficient to 

support a worsening of her accepted work-related right shoulder condition to support increased 

disability from work. Counsel disagreed with OWCP’s decision and requested a telephonic 

hearing before an OWCP hearing representative. The record reflects that he presented several 

arguments during the telephonic hearing. 

Appellant underwent OWCP-approved right shoulder surgery on April 10, 2012. She

returned to part-time limited-duty work on September 11, 2012 and resumed full-time, full-duty

work on October 1, 2012. 

By decision dated May 17, 2012, an OWCP hearing representative affirmed OWCP’s 

December 20, 2011 decision. She found that the evidence of record did not support that appellant’s 

increased disability subsequent to October 2011 was causally related to and necessitated by the 

April 26, 2011 work injury without intervening new work factors. The hearing representative 

further found appellant’s disability subsequent to April 10, 2012 was payable as OWCP had 

authorized surgery. 

Appellant also filed a claim for a schedule award (Form CA-7). By decision dated 

December 19, 2014, OWCP awarded appellant a schedule award for nine percent permanent 

impairment of the right upper extremity. The period of the award ran for 28.08 weeks for the 

period November 7 to December 13, 2014. The record reflects that counsel filed several letters 

pertaining to the status of the schedule award claim prior to its issuance. 

On April 22, 2016 OWCP received counsel’s fee application in the amount of $4,745.00 

for services rendered from November 23, 2011 through December 29, 2014 in the current claim 

number. An itemized statement listing the services and time spent on each date was provided.2 

The time spent on each service ranged from 15 to no more than 60 minutes, for a total of 875 

minutes, or 14.6 hours. Counsel’s hourly rate was $325.00 per hour. The total fee requested was 

in the amount of $4,745.00. In his April 19, 2016 cover letter, counsel requested that OWCP assist 

 

2 The services provided included writing letters to appellant, appellant’s doctors, and to OWCP, telephone 

conferences, and review of OWCP’s decisions. 
3

in processing the fee request for OWCP file number xxxxx565. He explained that the fee petition 

had been sent to appellant, but she had not signed or returned the fee petition with payment. 

In a September 12, 2016 letter, counsel clarified that the fee petition was requested under 

the current case file, case number xxxxx721, noting that an incorrect file number had been listed 

on his April 19, 2016 letter. He indicated that appellant had reimbursed him for a medical advance, 

which was listed as $500.00 on the initial fee petition and he, therefore, did not need authorization 

for reimbursement of that expense. Counsel noted that he could not find any notes or letters that 

the fee was reduced to $2,600.00 and, if appellant had such records, then he stood corrected. He 

also indicated that appellant had agreed to pay the fee and referred to an e-mail in which she had 

agreed to make installment payments. However, no e-mail was provided with his letter of 

correspondence.

In a November 4, 2016 letter, counsel requested the status of his fee petition. 

In a November 7, 2016 letter, OWCP forwarded to appellant a copy of counsel’s fee 

application in the amount of $4,745.00 for services rendered from November 23, 2011 through 

December 29, 2014. It provided her 30 days to comment on the fee application request and to 

denote whether the fee charged was reasonable and appropriate. No response was received from 

appellant. 

OWCP sent appellant another letter dated November 28, 2016, again providing her the 

opportunity to comment on counsel’s fee request for $4,745.00 for services rendered from 

November 23, 2011 through December 29, 2014. Appellant was advised that, if she did not 

provide comments by December 8, 2016, it would consider counsel’s fee request and approve a 

fee, which was determined to be fair and reasonable. 

On February 10, 2017 counsel inquired as to the status of the fee petition. 

By decision dated March 8, 2017, OWCP approved counsel’s fee petition in the amount of 

$4,745.00 for services rendered from November 23, 2011 through December 29, 2014. It noted 

that appellant had not contested the reasonableness of the fee amount. 

On April 19, 2017 appellant requested reconsideration of its March 8, 2017 decision. In a 

handwritten statement dated “April 2017,” appellant indicated that she had talked with counsel on 

the telephone and that they had agreed to $2,700.00, not $4,745.00. She indicated that she had 

paid $500.00 and only owed the remaining $2,200.00. Appellant explained that she could not find 

the original bill. 

By decision dated July 14, 2017, OWCP denied modification of its March 8, 2017 decision. 

It noted that an agreement to a flat rate, in this case $2,700.00, was inconsistent with FECA 

regulations. OWCP further found that counsel provided active assistance to appellant with regard 

to her schedule award claim and she had not contested either the time spent or the hourly rate or 

submitted evidence to document that an alternative charge for legal services had been agreed upon. 

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 
4

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.3 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.4

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.5 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,6the regulations do not specifically provide for approval 

when a claimant fails to contest a fee application.7 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.8 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.9

ANALYSIS

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

fee in the amount of $4,745.00. 

OWCP considered the relevant regulatory criteria in its decisions approving the requested 

fee. In this case, appellant’s former counsel submitted an attorney authorization, as well as an 

itemized statement of the time allotted on specific tasks, the hourly rate, and the total amount 

charged.10 On April 19, 2016 counsel submitted a fee application in the amount of $4,745.00 for 

services rendered from December 9, 2011 through December 29, 2014. While OWCP provided 

appellant two opportunities to comment on the fee application request and to denote whether the 

fee charged was reasonable and appropriate, she failed to respond. By decision dated March 8, 

2017, OWCP approved the fee petition in the amount of $4,745.00 as requested. 

 

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

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

5 20 C.F.R. § 10.703(a)(2).

6

Id. at § 10.703(b).

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

8 20 C.F.R. § 10.703(c).

9

Id.

10 See L.H., Docket No. 11-0900 (issued December 9, 2011). 
5

Appellant requested reconsideration and asserted, without supporting documentation, that 

she and counsel had agreed upon a fee of $2,700.00. She explained that she had already paid 

$500.00 and, therefore, owed only $2,200.00. Appellant indicated that she did not have the 

original bill. By decision dated July 14, 2017, OWCP denied modification of its prior decision 

approving the requested fee. Appellant disputed the requested free, contending only that she and 

counsel had agreed upon a fee of $2,700.00 of which she paid $500.00. However, there is no 

evidence to support that counsel and appellant had agreed to a reduced fee in any amount. In his 

September 12, 2015 letter, counsel indicated that appellant had reimbursed him for the medical 

advance, which was listed as $500.00 on the initial fee petition. However, he indicated that he 

could not find any notes or letters relative to the case that the fee was reduced to $2,600.00. The 

Board finds that appellant’s contention has not been established and, thus, is insufficient to 

establish that OWCP abused its discretion by approving the requested attorney’s fee.11

CONCLUSION

The Board finds that OWCP did not abuse its discretion in approving an attorney’s fee in 

the amount of $4,745.00 for services rendered from November 23, 2011 through 

December 29, 2014.

ORDER

IT IS HEREBY ORDERED THAT the July 14, 2017 decision of the Office of Workers’

Compensation Programs is affirmed.

Issued: July 10, 2018

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board

 

11 Id.