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Brownstein | Rask News

Brownstein Rask LLP Portland Oregon Attorneys

Quarterly LHWCA caselaw summary 2023/12

| Norman Cole, Of Counsel

In this quarter the Board issued three unpublished decisions involving common attorney fee disputes. In Bajric v. Flour Canops Ltd. the Board rejected claimant’s request to require the defense attorney to produce its billing records but noted in an “appropriate case” the records should be produced. In Kazibwe v. Reed International, Inc. the ALJ reduced hourly rates for some services that could have been performed by paralegals or support staff at a lower rate. The Board held the ALJ should not second guess the way claimant’s attorney assigned work to attorneys and staff. Finally, in Bajric v. Flour Canops, Ltd. the ALJ, relying on 20 CFR §18.33(d), did not consider a reply brief claimant’s attorney submitted without prior permission from the judge in response to employer’s objections to attorney fees. The Board held 20 CFR §18.33(d) did not support the ALJ’s conclusion because it applied to motions filed before a hearing, and the fee petition here, filed as a consequence of a §8(i) settlement, was not a pre-hearing submission.

The Board also issued two unpublished decisions involving admissibility of exhibits submitted without full compliance with a pre-trial order. In Elezi v. Fluor Canops, Ltd., claimant’s attorney submitted a medical report responding to a report from employer’s defense examiner three days after parties exchanged exhibits and more than thirty days after discovery and expert disclosure deadlines. The ALJ excluded the report because the claimant failed to demonstrate good cause and excusable neglect so as to permit admission of the untimely response. The Board affirmed. In Ajdini v. Flour Canops, Ltd., the ALJ received defense expert’s report and testimony even though defense attorneys had failed to timely provide a complete list of the expert’s testimony. The ALJ ordered defense counsel to supplement the disclosure and allowed claimant an opportunity to depose the doctor on the limited issue of prior expert testimony. The Board affirmed because the ALJ took steps to remedy any deficiency and the order was not arbitrary, capricious, or an abuse of discretion.

Finally, in a published decision, Garcia v. National Steel & Shipbuilding Co., the Board held the average weekly wage in a cumulative trauma claim should be based on earnings before the disability related to the cumulative trauma became manifest.