United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of G.A., Appellant 

and 

U.S. POSTAL SERVICE, BULK MAIL 

CENTER, Denver, CO, Employer 

________________________________________ 

) 

) 

) 

) 

) 

) 

) 

) 

Docket No. 14-1516 

Issued: May 12, 2017 

Appearances: Case Submitted on the Record

John S. Evangelisti, 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 filed a fee petition in the amount of $2,270.00.1 The Board notes 

that all petitions for approval of fees for representative’s services 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).3

Pursuant to its regulation, the Board considered the fee petition under the following 

criteria: 

(1) The usefulness of the Representative’s services;4

 

 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 Id. at § 8127. 

3

 20 C.F.R. § 501.9(e). 

4

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

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

pleadings filed in the case. The Board will also consider the usefulness of a representative’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;5 

(3) The capacity in which the Representative has appeared;6 

(4) The actual time spent in connection with the Board appeal;7 and 

(5) Customary local charges for similar services.8

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. No response was 

received. 

The requested fees pertain to services performed before the Board in the abovereferenced appeal. The underlying issue was whether OWCP met its burden of proof to justify 

the reduction of appellant’s wage-loss compensation as he currently had the capacity to earn fulltime wages in the selected position of cashier II. By decision dated July 14, 2015, the Board 

reversed OWCP’s decision and found that OWCP did not meet its burden to justify the reduction 

of appellant’s wage-loss compensation. The Board found that the opinion of the referral 

physician did not clearly and unequivocally establish that appellant had the capacity to earn fulltime wages in the selected position of cashier II. 

On appeal counsel submitted an eight-page brief with supporting legal citation in support 

of his appeal, citing pertinent case law in support of his arguments. He provided a factual history 

of the claim and offered alternative arguments in support of his position. Counsel argued that the 

reduction of benefits should be reversed because the work restrictions set by the referral 

physician exceeded the physical demands of the selected position of cashier II. He also argued, 

inter alia, that OWCP erred by acting in a medical rather than adjudicatory capacity, that OWCP 

failed to resolve a conflict in the medical evidence regarding restrictions, and that the position 

description should have been forwarded to the treating physician for review. 

OWCP’s decision on appeal was dated January 24, 2014 and the appeal was filed with 

the Board on June 24, 2014. The fee petition requests approval of time from May 5 through 

August 19, 2014 and documents 9.05 attorney hours spent in connection with this appeal before 

the Board at $250.00 per hour for John S. Evangelisti, Esquire, and 0.10 hours at $75.00 for 

Paralegal Jodi Waldron. In his fee petition, counsel noted that he zealously represented 

appellant’s interest and presented specific arguments in his appeal brief. He noted that his usual 

hourly rate was $300.00 and $175.00 for his paralegal, that this fee was reasonable and 

customary, but that he represented appellant at his lower 2001 rates. 

 5

 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 representative must establish the complex or 

unusual nature of the appeal. 

6

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

whether the representative obtained a written retainer and fee agreement was obtained. 

7

 The Board’s evaluation of an 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 the 

representative 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). 

8

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

states and that local custom must be balanced against national practice in the FECA appeals. 
3

The Board has reviewed the fee petition and finds that it satisfies the requirements of 

section 501.9(e) of the Board’s implementing regulations. The Board after review of the petition 

concludes that 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 19 

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

subject to fine or imprisonment up to a year or both. 

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

$2,270.00. 

Issued: May 12, 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