United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of W.F., Appellant 

and 

DEPARTMENT OF HEALTH & HUMAN 

SERVICES, SOCIAL SECURITY 

ADMINISTRATION, Alexandria, LA, Employer 

__________________________________________ 

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Docket No. 12-1754 

Issued: November 3, 2014 

Appearances: Case Submitted on the Record 

Jeffrey P. Zeelander, Esq., for the appellant 

Office of Solicitor, for the Director

ORDER GRANTING FEE PETITION 

Before: 

RICHARD J. DASCHBACH, Judge 

COLLEEN DUFFY KIKO, Judge 

PATRICIA HOWARD FITZGERALD, Judge 

 By letter dated March 13, 2014, counsel for appellant filed a request for approval of 

attorney fees in the amount of twelve thousand, two hundred and eighty-five dollars 

($12,285.00).1

 

The requested fees pertain to services performed before the Board in the abovereferenced appeal. The Board’s March 15, 2013 order remanding case found that the Office of 

Workers’ Compensation Programs (OWCP) had failed to review numerous medical reports 

dating from 1992 to 2011 submitted by appellant addressing the issue of disability. The Board 

remanded the case for OWCP to properly consider all of the evidence in the record and, 

following such further development as OWCP deemed necessary, to issue an appropriate 

decision on the claim. The June 1 and February 21, 2012 decisions of OWCP were set aside. 

                                                             1

 Counsel filed the March 13, 2014 fee petition under 20 C.F.R. § 10.703, which provides that “where a fee 

application is accompanied by a signed statement indicating the claimant’s agreement with the fee as described in 

(a)(1)(ii) above, the application is deemed approved.” The Board notes that 20 C.F.R. § 10.703(b) pertains to 

uncontested fees for work performed before OWCP. The procedures implemented by OWCP with regard to the 

consideration of fees are separate and distinct from the Board’s Rules of Procedure. All petitions for approval of 

fees for representative services performed on appeal before the Board are reviewed pursuant to 20 C.F.R. § 501.9(e). 

Evelyn R. Adams, 10 ECAB 585 (1959). 
2

On April 17, 2014 counsel provided to the Board a memorandum supplementing his fee 

petition, providing additional information for consideration of the fee request pursuant to 20 

C.F.R. § 501.9(e). He noted that appellant was not paid any wage-loss benefits in this case until 

after the Board remanded the case to OWCP. Counsel contended that the Board’s order was 

critical in forcing OWCP to consider evidence that it had steadfastly refused to consider. He 

provided a copy of a document in which OWCP had approved previous attorney fee petitions on 

the sole basis that appellant had agreed to pay him for his services at the rate of $450.00 per 

hour. Counsel also noted that there is no customary local charge for services before the Board 

and that counsel has a national practice representing clients throughout the United States and 

overseas. He contended that appellant’s claim was extremely complex “due to the mendacity of 

OWCP personnel who refused to pay [appellant].” 

As required by the Board’s regulations, appellant was afforded written notice of the fee 

requested and provided an opportunity to comment on the fee petition. Although no response 

was received, the record does include a copy of the itemized statement of fees charged which has 

been signed by appellant. 

Under the Board’s Rules of Procedure, the Board must consider counsel’s fee petition 

under the following general criteria: 

(1) The usefulness of the Representative’s services;2

(2) The nature and complexity of the appeal;3

(3) The capacity in which the Representative has appeared;4

(4) The actual time spent in connection with the Board appeal;5

 and 

(5) Customary local charges for similar services.6

 

                                                             2 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. 

3

 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. 

4

 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. 

5

 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). 

6

 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 the Federal Employees’ Compensation Act 

appeals. 
3

The Board notes that the bulk of the fees in this case ($11,430.00) are itemized for the 

preparation of a 16-page pleading submitted on appeal.7

 The Board has carefully reviewed 

counsel’s submissions requesting for approval of fees and finds that the fees charged in this 

instance are excessive given the time spent, the usefulness of the representation, and the 

complexity of the matter on appeal. 

As to the time spent and usefulness of the representation, the Board recognizes that counsel’s 

pleading summarized a lengthy factual history. However, counsel was likely already intimately 

aware of the facts of the case through his representation of appellant before OWCP.8 Further, his 

pleading consists merely of a compilation of documents photocopied from the record and pasted 

into the document, with short explanatory paragraphs. Although counsel’s itemized statement of 

fees indicates that a large amount of research was performed, his pleading did not advance any 

legal arguments, nor did it include any citations to Board case law. The arguments presented 

centered primarily on the failure of OWCP to properly handle the case and the argument that 

OWCP had “rendered numerous shoddy decisions in the history of this case.” Counsel claimed 

that “any weakness in the medical evidence over the years in this case should be resolved in 

favor of [appellant] in light of the multitude of bad decisions that bear no connection to the 

medical reports and the failure of OWCP to provide her with wage loss and medical care in a 

timely manner.” 

As to the complexity of the matter on appeal, the issue before the Board was not a 

complicated matter, as evinced by the Board’s procedural remand. The appeal did not involve a 

novel issue, or extensive or unusual factual evidence or legal argument. 

The Board finds that counsel in this instance has failed to establish adequate justification for 

the full amount of his fee based on the amount of time spent, and the usefulness of the 

representation and the complexity of this case. 

The Board has reviewed the fee petition and additional information submitted by counsel and 

finds that it fails to satisfy the requirements of section 501.9(e) of the Board’s implementing 

federal regulations, to the extent noted above. As such, the Board will approve a fee of 

$4,950.00 in this matter. This amount represents eleven (11) hours of representative services 

performed at the hourly rate of $450.00.9

 The Board finds this amount reasonable given the 

particular facts of this case. 

                                                             7

 Counsel’s itemized statement of fees notes entries dated December 11 through 26, 2012 for time spent 

reviewing the file from OWCP, researching, drafting a letter to ECAB (the Board presumes that this document 

resulted in the December 26, 2012 pleading since no other December 2012 correspondence is found in the record), 

and drafting/finalizing ECAB memorandum, totaling 25.3 hours at $450.00 per hour. 

8

 In fact, the fee agreement submitted to the Board for approval also noted over $18,225.00 in additional attorney 

fees itemized for work performed before OWCP. 

9

 This includes one hour to draft the appeal and memorandum to file; nine hours to review the file from OWCP, 

perform any necessary research, and prepare the pleading; and one hour to review the ECAB decision with 

memorandum to file. 
4

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

thousand, nine hundred and fifty dollars ($4,950.00).10

Issued: November 3, 2014 

Washington, DC 

 

 Colleen Duffy Kiko, Judge 

 Employees' Compensation Appeals Board 

 

 Patricia Howard Fitzgerald, Judge 

 Employees' Compensation Appeals Board 

                                                             10 Richard J. Daschbach, Chief Judge, who participated in the preparation of the opinion, was no longer a member 

of the Board after May16, 2014.