No neglect in delayed filing for attorneys fees: Court

A federal appeals court on Monday held that an injured worker failed to show that his petition for payment of his attorney’s fees was wrongly struck as untimely.

In Iopa v. Saltchuk-Young Brothers Ltd., a three-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco unanimously upheld an administrative law judge’s dismissal of a worker’s petition for attorneys fees for being untimely.

After he sustained an injury, Warren Iopa successfully litigated his claims for temporary disability benefits, and an administrative law judge held that he was entitled to reasonable attorney’s fees and costs under the Longshore and Harbor Workers’ Compensation Act and that a fee petition had to be filed within 21 days of the award, which was ordered July 31, 2014. However, Mr. Iopa’s counsel instead improperly filed a fee petition before the Office of Workers Compensation Programs, according to court documents. Counsel filed a corrected petition on Oct. 27, 2015, with the Office of Administrative Law Judges, and a judge struck the petition based on a finding of untimeliness without excusable neglect. The U.S. Department of Labor’s Benefits Review Board affirmed the decision, and Mr. Iopa appealed.

Mr. Iopa argued that the judge did not apply the proper standard in evaluating the circumstances for the untimely fee petition and, alternatively, even if the proper standard was applied, substantial evidence does not support the judge’s decision to strike fees. He further claimed that LHWCA fee petitions are subject to a “relatively lenient standard” and that the “loss of an attorney’s fee is a harsh result and should not be imposed on counsel as a penalty except in the most extreme circumstances.”

The 9th Circuit, however, held that Mr. Iopa’s counsel failed to establish excusable neglect, and agreed with the administrative law judge’s determination that the respondents would be prejudiced by the delayed filing because their “memory of the details of the case” could be affected by the substantial delay of Mr. Iopa’s counsel. The court found that the fact that the petition was filed 280 days past the 21-day deadline, and that Mr. Iopa’s lawyer waited an additional month to correct his petition once he was instructed to file with the ALJ versus the OWCP, further supported the ALJ’s finding.

Therefore, the court affirmed the board’s decision finding that the petition was untimely.

Attorney Normand Lezy of Cox, Wootton, Lerner, Griffin & Hansen LLP in Honolulu said the insurer is pleased with the court’s affirmation of the administrative law judge’s and review board’s decision.

“Rules must be followed if the Longshore Act is to function in a fair and predictable manner for all involved,” he said.

The attorney for Mr. Iopa did not immediately return calls for comment.