United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of L.C., Appellant 

and 

U.S. POSTAL SERVICE, POST OFFICE, 

Rochester, NY Employer 

__________________________________________ 

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Docket No. 13-1744 

Issued: May 17, 2017 

Appearances: Case Submitted on the Record

Paul Kalker, Esq., for the appellant 

Office of Solicitor, for the Director 

ORDER GRANTING FEE PETITION 

Before: 

CHRISTOPHER J. GODFREY, Chief Judge 

PATRICIA H. FITZGERALD, Deputy Chief Judge 

COLLEEN DUFFY KIKO, Judge 

Counsel for appellant has filed a fee petition in the amount of $7,000.00.1 The Board 

notes that all petitions for approval of fees for representative’s services performed before the 

Board are considered under the Board’s statutory authority found at section 8127 of the Federal 

Employees’ Compensation Act,2 (FECA) and under its Rules of Procedure found at 20 C.F.R. 

§ 501.9(e). 

Pursuant to its regulations, the Board must consider the petition under the following 

general criteria: 

(1) The usefulness of the Representative’s services;3

                                                             1

 FECA (5 U.S.C. § 8127(b)) and its implementing regulations (20 C.F.R. § 501.9) clearly require the Board to 

review each fee petition on its own merits and with regard to the unique facts and issues of each appeal. The 

recognition that each appeal to the Board has unique aspects is reflected in the Board’s orders granting or denying 

fee petitions. 

2

 5 U.S.C. § 8127. 

3

 The Board’s consideration of “usefulness” includes, but is not limited to, the frequency and quality of 

communication by the attorney with the client, the factual evidence and legal argument offered by the attorney, and 

written pleadings filed in the case. The Board will also consider the usefulness of an attorney’s work as it aided the 

Board in its consideration and decision of the issue appealed. 
2

(2) The nature and complexity of the appeal;4

(3) The capacity in which the Representative has appeared;5

(4) The actual time spent in connection with the Board appeal;6 and 

(5) Customary local charges for similar services.7

As required by the Board’s regulations, appellant has been afforded written notice of the 

fee requested and provided an opportunity to comment on the fee petition.8

 

The requested fees pertain to services performed before the Board in the abovereferenced appeal. The underlying issue was whether appellant had established a modification of 

an August 20, 1998 wage-earning capacity determination was warranted. An oral argument 

before the Board was held on May 29, 2014. By decision dated June 26, 2014, the Board set 

aside a June 11, 2013 OWCP decision. The Board indicated that OWCP should have further 

developed the medical evidence on the issue of whether post-traumatic stress disorder (PTSD) 

was an employment-related condition, and whether there was a material change warranting a 

modification of the wage-earning capacity determination. 

On appeal counsel submitted a five page appeal letter with arguments and citations to 

Board case law and OWCP procedures. He requested oral argument before the Board and 

provided arguments in support of the request. The Board granted the request for oral argument 

by order dated April 8, 2014. Counsel attended the May 29, 2014 oral argument and presented 

arguments. He summarized the lengthy factual and medical history and argued that the evidence 

was sufficient to warrant a modification of the August 20, 1998 wage-earning capacity 

determination. 

By order dated August 27, 2014, the Board denied appellant’s fee petition as it had failed 

to explain in detail how the claimed fee was justified under the five factors listed above. Counsel 

was permitted 60 days to resubmit the fee petition. 

On September 12, 2014 counsel provided a supplemental fee petition and a statement of 

service requesting approval of fees totaling $7,000.00. The fee petition listed 27.10 hours of 

                                                             4

 The Board’s evaluation of the “nature and complexity” of an appeal includes, but is not limited to, whether the 

issue appealed is novel or required extensive or unusual factual evidence or legal argument. The Board recognizes 

that not all complex issues are cases of first impression. However, the attorney must establish the complex or 

unusual nature of the appeal. 

5

 The Board’s consideration of the “capacity” in which an attorney appears includes, but is not limited to, whether 

the attorney obtained a written retainer and fee agreement. 

6

 The Board’s evaluation of an attorney’s itemized statement of work and charges includes, but is not limited to, 

whether the statement is clear, detailed, and describes those aspects of the appeal which merit the fee claimed and 

whether counsel has personally affirmed the correctness of the fee. No stipulated or contingent fee will be approved 

by the Board. 20 C.F.R. § 501.9(e). 

7

 The Board’s consideration of customary, local fees recognizes that attorneys often have clients in several states 

and that local custom must be balanced against national practice in FECA appeals. 

8

 20 C.F.R. § 501.9(e). Appellant submitted a June 9, 2014 letter indicating he agreed with the requested fee for 

services rendered on the appeal. 
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services at $320.00 per hour. The description of services included preparation for oral argument, 

research, travel, and correspondence with appellant. Counsel indicated that the amount billed to 

appellant was reduced from $8,672.00 to $7,000.00. 

The Board has carefully reviewed the fee petition, and finds that it is sufficient to satisfy 

the requirements of section 501.9(e) of the Board’s implementing regulations. Considering the 

five factors enumerated above, including the usefulness of the services provided, the complexity 

of the appeal, the time spent, and customary local charges, the Board concludes the fee requested 

is reasonable. 

The Board notes that under 20 C.F.R. § 501.9(e) “[n]o claim for a fee for legal or other 

service performed on appeal before the Board is valid unless approved by the Board.” Under 

18 U.S.C. § 292, collecting a fee without the approval of the Board may constitute a 

misdemeanor, subject to fine or imprisonment for up to a year, or both. 

IT IS HEREBY ORDERED THAT the fee petition is granted in the amount of 

$7,000.00. 

Issued: May 17, 2017 

Washington, DC 

 

 Christopher J. Godfrey, Chief Judge 

 Employees' Compensation Appeals Board 

 

 Patricia H. Fitzgerald, Deputy Chief Judge 

 Employees' Compensation Appeals Board 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board