Luis Peña Garcia v. Calzadilla Construction Corporation and IMS Insurance Company of Puerto Rico (Board decision, January 16, 2018)

BRB final decision. This unpublished decision is not precedent. A final Board decision ordinarily becomes final 60 days after issuance unless a timely petition for judicial review or Board reconsideration is filed under 20 C.F.R. § 802.406. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Luis Peña Garcia asked the Board to reconsider its earlier decision on attorney fees. He argued that obtaining treatment from a physician of his choice meant he had successfully prosecuted the claim and qualified for an employer-paid fee. The Board said it had already considered and rejected that argument. It denied reconsideration and affirmed the earlier decision.

Decision snapshot

• Authority: 33 U.S.C. §§ 921(b)(5), 928(b); 20 C.F.R. §§ 802.407, 802.409.
• Outcome: Reconsideration motion denied; earlier Board decision affirmed.
• Key point: Repeating an argument already decided did not justify reconsideration.

Full text (DOL BRB public release)

U.S. Department of Labor
Benefits Review Board
P.O. Box 37601
Washington, DC 20013-7601

BRB No. 17-0103

LUIS PEÑA GARCIA
)
)
Claimant-Petitioner
)
)
v. )
)
CALZADILLA CONSTRUCTION
) DATE ISSUED: Jan. 16, 2018
CORPORATION
)
)
and
)
)
IMS INSURANCE COMPANY OF
)
PUERTO RICO
)
)
Employer/Carrier-
) ORDER on MOTION for
Respondents
) RECONSIDERATION

Claimant has filed a motion for reconsideration of the Board’s decision in Garcia v. Calzadilla Constr. Corp., BRB No. 17-0103 (Sept. 13, 2017). 33 U.S.C. §921(b)(5);
20 C.F.R. §802.407. Employer has not responded.

In his motion, claimant contends that his right to receive treatment from a physician of his choice in New York constitutes a “successful prosecution” of the claim entitling his attorney to an attorney’s fee payable by employer under Section 28(b), 33 U.S.C. §928(b). The Board fully addressed and rejected this contention in its decision.
Garcia, slip op. at 4-5. Claimant has not demonstrated a basis for reconsideration of this
issue. Therefore, we deny claimant’s motion for reconsideration.
 Accordingly, claimant’s motion for reconsideration is denied. 20 C.F.R.
§802.409. The Board’s decision is affirmed.

SO ORDERED.

_______
BETTY JEAN HALL, Chief
Administrative Appeals Judge

_______
JUDITH S. BOGGS
Administrative Appeals Judge

_______
JONATHAN ROLFE
Administrative Appeals Judge