United States Department of Labor

Employees’ Compensation Appeals Board

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In the Matter of K.B., Appellant

and

DEPARTMENT OF VETERANS AFFAIRS, 

VETERANS ADMINISTRATION MEDICAL 

CENTER, Sioux Falls, SD, Employer

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Docket No. 16-0203

Issued: December 7, 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

COLLEEN DUFFY KIKO, Judge

ALEC J. KOROMILAS, Alternate Judge

Counsel for appellant has filed a fee petition in the amount of $6,452.50.1 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

Under these regulations, the Board must consider the petition under the following general 

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

5 U.S.C. § 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;7and

(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.9 No response was 

received.10 

The requested fees pertain to services performed before the Board in the abovereferenced appeal. In a merit review decision dated June 25, 2015, the Office of Workers’

Compensation Programs (OWCP) found that an April 2, 2015 report from Dr. Jack Rook, a 

Board-certified physiatrist, was of diminished probative value as he had discussed work 

activities prior to 2008. By decision dated November 16, 2016 decision, the Board remanded the 

case to OWCP for it to properly review the evidence of record, including the April 2, 2015 report 

from Dr. Rook. The underlying issues in the case were whether appellant’s left shoulder and 

cervical conditions were employment related. 

In support of the appeal, counsel submitted an 18-page brief with supporting legal 

citation in support of his arguments that appellant’s conditions were causally related to 

employment factors. As noted, the Board remanded the case for further review of the medical 

evidence. 

Counsel submitted a fee petition requesting approval of $6,452.50 for the period 

November 18, 2015 to June 9, 2016. The petition documents 21.55 hours spent in connection 

with the appeal before the board at $300.00 an hour for 21.45 hours for John S. Evangelisti, Esq. 

at $6,435.00 and $175.00 an hour for .10 hours for Paralegal Jodi Waldron at $17.50. The fee 

petition described the specific services provided for the amount claimed. 

In this regard, however, the Board finds billing for 3.50 hours on January 11, 2016 to 

“Draft ECAB brief” to be inappropriate as the counsel had already billed 17.60 hours between 

 

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 FECA appeals.

9

20 C.F.R. § 501.9(e). 

10 The Board notes that included with counsel’s fee petition was a signed statement from appellant indicating that 

she found the requested fee to be reasonable and appropriate.
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the dates of December 16 and 21, 2015 and the brief was filed electronically with the Board on 

December 21, 2015. Therefore the Board will disallow 3.50 hours at $300.00 an hour in the 

amount of $1,050.00 as excessive and redundant. The Board has carefully reviewed the fee 

petition, and finds that, as modified, it otherwise satisfies the requirements of section 501.9(e) of 

the Board’s implementing regulations. The Board 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 18 

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 $5,402.50.

Issued: December 7, 2017

Washington, DC

Christopher J. Godfrey, Chief Judge

Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge

Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge

Employees’ Compensation Appeals Board