It is not the function of the Board to determine the fee for services performed by a representative of a claimant before the Office. That is a function within the discretion of the Office based on the criteria in 20 C.F.R. § 10.145 pertaining to approval of representative's fees. The Board's sole function is to determine whether the action taken by the Office on the matter of the attorney's fee constituted an abuse of discretion. The Board has frequently stated that it will not interfere with or set aside a determination by the Office of a fee for representative services unless the evidence of record supports that the determination made by the Office represents an abuse of discretion. John E. Harman, 41 ECAB 169 (1989); Regina G. Jackson, 41 ECAB 321 (1989); Barbara Robertson (Paul Robertson), 41 ECAB 393 (1990). The criteria governing the approval of fees for representative's services are provided in 20 C.F.R. § 10.145(b), which provides that the fee approved by the Office will be determined on the basis of the actual necessary work performed and will generally include, but are not limited, to the following factors: (1) usefulness of the representative's services to the claimant; (2) nature and complexity of the claim; (3) actual time spent on development and presentation of the claim; (4) amount of compensation accrued and potential future payments; (5) customary local charges for similar services; and (6) professional qualifications of the representative. Regina G. Jackson, 41 ECAB 321 (1989). The Board found that it was error on the part of the Office to approve an attorney's fee based on an hourly billing rate of $272.10 without considering the professional qualifications of appellant's attorney and the customary local charges for similar services. The Office's decision approving the attorney's fee did not address the professional qualifications of appellant's attorney, i.e., how long he has been a member of the bar, his experience in this area of the law, nor did the decision address whether a rate of $272.10 per hour was a customary charge for legal services such as those rendered by the attorney. John E. Harman, 41 ECAB 169 (1989). Appellant repeatedly questioned the Office as to why the Office did not pay his attorney's fees. It is well established by Board precedent that in cases arising under the FECA, attorneys' fees are the personal obligation of the client, subject to prior approval by the Office for legal services performed before that agency and by the Board for legal services performed before the Board. John E. Harman, 41 ECAB 169 (1989). The Board found that the Office abused its discretion in approving an attorney's fee based on an hourly billing rate without first resolving the discrepancy as to the hourly rate. The Board noted that the Office took into consideration the criteria set forth in 20 C.F.R. § 10.145(b)(1)–(4) and (6), thoroughly discussed the application of the criterion to the attorney's fee request and provided adequate rationale in reducing the billable hours as the item omitted was not for a service performed for appellant before the Office. However, with respect to section 10.145(b)(5) the Board found that there was a conflict between appellant and her attorney regarding the amount of the billing rate. The Board noted that the Office implied in its compensation order approving the attorney's fee that there was no basis for appellant to object to the hourly billing rate as it was the same rate set by the Board for services performed before it to which appellant raised no objections. The Board noted, however, that its precedent and the regulations governing the approval of representative's fees establishes that the Board and Office are separate and distinct bodies and a separate application to the Board is required for approval of a fee for legal services performed in connection with an appeal. Thus, the fact the Board approved an hourly rate without any objection by appellant is not dispositive regarding appellant's registered current contentions that the hourly rate approved for services before the Office was not the agreed upon rate. The Board concluded that the Office should have investigated the matter to resolve the hourly billing rate; the case was remanded for that purpose. The Board noted that should the Office reduce any billable hours claimed by appellant's attorney, it should provide him with an opportunity to provide written comments in opposition thereto prior to the issuance of a de novo decision. Regina G. Jackson, 41 ECAB 321 (1989). The Board found that it was error on the part of the Office to approve the total amount of the fee requested by the attorney which included $151.68 in expenses incurred by the attorney for services performed. 20 C.F.R. § 10.145(e) clearly states that, in considering any request for a representative's fee, the Office will not recognize "expenses incurred by the representative for services performed." Barbara Robertson (Paul Robertson), 41 ECAB 393 (1990). The regulations governing representatives' fees provide that the representative shall arrange for the claimant to review the request for a fee and to comment as to the services provided and as to the reasonableness of the fee. These regulations state: "The claimant's written comments should accompany the application for approval of a fee submitted to the Office." The attorney's letter which constituted his fee application and incorporated his itemized statement shows that a carbon copy of this letter was furnished to appellant. The letter, however, was not accompanied by appellant's written comments regarding the fee application. Although the Office found that appellant did not contest the reasonableness of the fee, the record indicates that the Office made no attempt to independently verify that appellant in fact received a copy of the attorney's letter. The Federal (FECA) Procedure Manual provides that the claims examiner should contact the appellant if no statement on the fee has been received. The record indicates that the claims examiner did not follow these guidelines. The Board therefore remanded the case for further development on the attorney's fee issue. Barbara Robertson (Paul Robertson), 41 ECAB 393 (1990). BURDEN OF PROOF CLAIMANT DEATH BENEFITS Appellant has the burden of proving by the weight of the reliable, probative and substantial evidence that an employee's death is causally related to factors of his or her federal employment. This burden includes the necessity of furnishing medical evidence, based on a proper factual and medical background of the employee, which contains a physician's opinion supporting a causal relationship between the employee's death and specific factors or conditions of the employee's federal employment. Barbara Robertson (Paul Robertson), 41 ECAB 393 (1990); Timothy Forsyth (James Forsyth), 41 ECAB 467 (1990). |