J.W. and U.S. Postal Service, Post Office, Albany, NY (Board decision, January 14, 2014)

ECAB final decision and order granting remand. The Board granted OWCP’s Director’s motion to set aside an attorney fee approval and return the matter for further development. OWCP must issue a new decision after J.W. can present evidence about the alleged contingency fee arrangement. Under 20 C.F.R. § 501.6(d), this Board order becomes final 30 days after issuance. A party may petition the Board for reconsideration within 30 days unless this order specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

The official PDF displays the docket as 13-978; the official filename uses 13-0978. J.W. appealed OWCP’s approval of an attorney fee, asserting that he had signed a contingency fee agreement for 30 percent of the compensation recovered. He raised that agreement for the first time on appeal, where the Board could not review new evidence. OWCP’s Director moved to remand so J.W. could submit supporting material and OWCP could reconsider the fee. The Board granted the motion, set aside the approval and directed OWCP to issue a new decision after further development.

Decision snapshot

• Authority: The Director’s motion to remand, as described in the order.
• Outcome: Attorney fee approval set aside and remanded for a new OWCP decision.
• Key point: J.W. must have an opportunity to present the alleged fee agreement to OWCP.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
J.W., Appellant
)
)
and ) Docket No. 13-978
) Issued: January 14, 2014
U.S. POSTAL SERVICE, POST OFFICE,
)
Albany, NY, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

ORDER GRANTING REMAND

Before:
RICHARD J. DASCHBACH, Chief Judge
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge

On March 18, 2013 appellant timely filed for review of a February 11, 2013 decision of the Office of Workers’ Compensation Programs (OWCP), which approved an attorney fee on the grounds that appellant did not contest the reasonableness of it. Appellant advised the Board that he had signed a contingency fee arrangement with his attorney for 30 percent of any monies received from OWCP.

Following the Board’s September 18, 2013 request for a pleading, the Director of OWCP filed a November 25, 2013 motion to remand. Noting that appellant raised the contingency fee arrangement for the first time on appeal, and that the Board could not review new evidence, the Director requested that the Board set aside OWCP’s February 11, 2013 decision and remand the case for further development and consideration of appellant’s contentions regarding the propriety of the fee. The Director assured the Board that OWCP will give appellant the opportunity to submit evidence supporting his allegation of a contingency fee arrangement, and thereafter, will issue a de novo decision on the request for approval of the attorney fee.

The Board has duly considered the matter and concludes that the Director’s motion to remand should be granted. The remand will set aside the adverse decision with which appellant disagrees, will provide him an opportunity to make his case before OWCP and will protect his appeal rights with OWCP’s issuance of a de novo decision. Accordingly, IT IS HEREBY ORDERED THAT the Director’s motion to remand is granted. The February 11, 2013 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded for further action.

Issued: January 14, 2014
Washington, DC

Richard J. Daschbach, Chief Judge
Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

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