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In re Attorney's fees Pertaining to McLaren

Intermediate Court of Appeals of Hawaii

June 27, 2013

In the Matter of Attorney's Fees Pertaining to JOHN C. MCLAREN, Appellant,
v.
PARADISE INN HAWAII LLC, Employer, In the Case of ETSUKO FURUKAWA, Claimant, and FIRST SECURITY INSURANCE COMPANY OF HAWAII, INC., Insurance Carrier

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE LABOR AND INDUSTRIAL RELATIONS APPEALS BOARD (CASE NO. AB 2010-341 (2-07-45923)}

On the brief:

Arthur Y. Park, John C. McLaren (Park & Park) for Appellant.

Foley, Presiding J., Fujise and Ginoza, JJ.

MEMORANDUM OPINION

Appellant John C. McLaren (McLaren) appeals from (1) a March 21, 2011 decision and order by the Labor and Industrial Relations Appeals Board (LIRAB)and (2) a May 11, 2011 order denying McLaren's motion for reconsideration. The LIRAB concluded McLaren's appeal was untimely, and it affirmed a decision by the director of the Department of Labor and Industrial Relations Disability Compensation Division (director) regarding McLaren's request for attorney's fees and costs. On appeal, McLaren raises several points essentially contending the LIRAB erred in concluding his appeal was untimely and in refusing to review the merits of the director's decision.

I. BACKGROUND

McLaren represented a claimant in a workers' compensation case before the Department of Labor and Industrial Relations (DLIR) Disability Compensation Division. The case resulted in a stipulation and settlement agreement order declaring the workers1 compensation award that the claimant would receive.

On March 1, 2010, McLaren filed with the DLIR a request for attorney's fees and costs in the amount of $7, 105.52, pursuant to Hawaii Revised Statutes (HRS) § 386-94 (Supp. 2012). On June 8, 2010, the director approved McLaren's request in the reduced amount of $3, 729.63. The decision informed McLaren he could appeal by filing a written notice of appeal with the director within twenty days after the mailing of a copy of the decision.

On September 7, 2010, McLaren appealed to the LIRAB from the director's June 8, 2010 decision. Before filing this appeal to the LIRAB, McLaren had also filed the following documents with the DLIR: a June 14, 2010 letter with the heading "Objection To Approval Of Attorney's Fees Dated June 8, 2010 And Request For Disability Compensation Division Hearing"; a June 28, 2010 Form WC-77 Application for Hearing; a July 19, 2010 Request to Access Government Records regarding the director's June 8, 2010 decision; and an August 4, 2010 letter repeating his request for a hearing and for access to records.

The LIRAB held a hearing on McLaren's appeal on December 16, 2010. On March 21, 2011, the LIRAB issued a decision and order concluding that McLaren's appeal to the LIRAB was untimely and that none of McLaren's earlier filings with the DLIR constituted timely appeals. Consequently, the LIRAB affirmed the director's June 8, 2010 decision. McLaren filed a timely motion for reconsideration to the LIRAB on April 20, 2011, contending the LIRAB "erroneously overlooked pertinent facts, legal authority, and argument[.]" The LIRAB denied McLaren's motion on May 11, 2011, and McLaren filed a timely notice of appeal to this court on June 9, 2011.

II. STANDARDS OF REVIEW

Appellate review of a LIRAB decision is governed by HRS § 91-14(g) [(2012 Repl.)], which states that:

Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because ...

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