United States Department of Labor 

Employees’ Compensation Appeals Board 

__________________________________________ 

In the Matter of K.E, Appellant 

and 

DEPARTEMENT OF THE ARMY, CORPS OF 

ENGINEERS, Seattle, WA, Employer 

__________________________________________ 

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Docket No. 13-296 

Issued: August 25, 2014 

Appearances: Case Submitted on the Record 

Steven E. Brown, Esq., for the appellant 

Miriam D. Ozur, Esq., for the Director 

ORDER GRANTING FEE PETITION 

Before: 

PATRICIA HOWARD FITZGERALD, Acting Chief Judge 

MICHAEL E. GROOM, Alternate Judge 

JAMES A. HAYNES, Alternate Judge 

Counsel for appellant filed a request for approval of attorney’s fees in the amount of one 

thousand, eight hundred and eighty-eight dollars and fifty cents ($1,888.50).1 By order dated 

April 2, 2014, the Board denied counsel’s request and allowed an additional 60 days for the 

submission of supplemental material information to review the request under the Board’s 

regulations at 20 C.F.R. § 501.9. 

The Board’s June 6, 2013 decision found that the issue of whether appellant sustained a 

recurrence of disability on July 28, 2008 due to her October 27, 2005 injury was not in posture 

for decision. The September 13, 2012 decision of the Office of Workers’ Compensation 

Programs (OWCP) was set aside and further development of the medical opinion directed on 

remand. Specifically, the second opinion physician was to further address her capacity to 

commute to and from work. 

                                                             1

 The Federal Employees’ Compensation Act (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 and denying fee petitions. 
2

The documents on appeal include a one-page attachment to appellant’s AB-1 form 

addressing the issue on appeal. Counsel cited to two decisions of the Board in support of his 

contention that the evidence was not properly developed as to whether appellant had the physical 

capacity to commute or perform the modified duties. In citing B.O.,2

 he contended that OWCP 

failed to establish that appellant had the capacity of getting to work by private or public 

transportation. Citing to Billy H. Bryant,

3

 counsel noted that the length of a commute was a 

factor to be considered in determining whether a job was suitable. On May 29, 2013 he 

submitted an addendum to the appeal, citing W.F.,4

 in support of the proposition that OWCP 

bears the burden of proof that an employee is capable of travelling to and from the workplace 

prior to terminating benefits. Counsel addressed appellant’s testimony regarding her commute. 

As noted, the Board found that further development of the medical evidence was necessary on 

appellant’s physical restrictions and ability to commute. 

On April 8, 2014 counsel responded to the Board’s April 2, 2014 order providing 

additional information for consideration of the fee request pursuant to 20 C.F.R. § 501.9(e). He 

noted that appellant did not contest the amount of the fee.5

 He addressed the usefulness of the 

representative services noting he submitted legal argument in the claim with citation to Board 

precedent that was found relevant to the issue on appeal as OWCP had failed to determine 

whether appellant’s condition prevented her travelling to and from work. Counsel noted that this 

was the second appeal of the case to the Board and that he was successful in his argument, as the 

Board remanded the case for further development of the claim. He also addressed the time 

submitted in the fee petition on the case, in communication with appellant and addressed the 

customary local charges for similar services. Counsel specifically addressed the hourly rates 

charged by the staff of his law firm in this appeal. 

The Board has duly considered the matter and finds that the petition sufficiently 

documents the work performed on behalf of appellant except to the inclusion of billings on 

December 12, 2012, March 28 and June 5, 2013. In each instance, there were multiple billings 

by Mr. Goodkin, Ms. Bauer and Mr. Brown under the category of review of file for status 

meeting and office meeting for case status. The amount billed on December 12, 2012 was 

$81.50 for .5 hours. The amount billed on March 28, 2013 was $155.00 for .5 hours. The 

amount billed on June 5, 2013 was $155.00 for .5 hours. The Board will disallow these 1.5 

                                                             2 B.O., Docket No. 07-103 (issued May 2, 2007). The Board notes that the issue in this case was a recurrence of 

disability for which appellant has the burden of proof and not a loss of wage-earning capacity as in B.O. 

3

 Docket No. 02-1014 (issued November 6, 2003). The Board reversed a termination decision of OWCP finding 

that the medical evidence established that the proposed daily commute to the job site exceeded the employee’s 

physical restrictions. 

4

 Docket No. 10-1828 (issued May 13, 2011). 

5

 Counsel cited to the provisions of the FECA Procedure Manual, Chapter 2.1200.6 and inquired as to whether 

they pertain to uncontested fees for work performed before the Board. The procedures implemented by OWCP with 

regard to the consideration of fees for services are separate from the Board’s review of such applications under 

section 501.9(e). OWCP and the Board are two separate and distinct bodies and separate application to the Board is 

required for approval of a fee for legal or other services performed in connection with an appeal. Evelyn R. Adams, 

10 ECAB 585 (1959). 
3

hours as excessive and redundant.6

 Deducting $391.50 from the fee petition, the Board finds that 

it otherwise satisfies the requirements of section 501.9(e) of the Board’s implementing federal 

regulations. 

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

thousand, four hundred and ninety-seven dollars ($1,497.00). 

Issued: August 25, 2014 

Washington, DC 

 

 Patricia Howard Fitzgerald, Acting Chief Judge 

 Employees’ Compensation Appeals Board 

 

 Michael E. Groom, Alternate Judge 

 Employees’ Compensation Appeals Board 

 

 James A. Haynes, Alternate Judge 

 Employees’ Compensation Appeals Board 

                                                             6

 While not directly pertaining to claims under FECA, the Board finds instructive the decision of the United 

States Supreme Court in Hensley v. Eckerhart, 461 U.S. 424 (1983). In any fee petition, counsel must use billing 

judgment and exclude redundant or unnecessary hours and to confirm that the fee requested is not excessive. 

Adequate documentation should be submitted to support the hours of work performed with specificity or a 

reasonably precise description of the work performed on behalf of the client.