Tramond M. Bourgeois v. Fab-Con, Incorporated and Signal Mutual Indemnity Association, Limited (Board decision, March 21, 2019)

BRB final decision. This unpublished order is not precedent. The Board denied reconsideration of its earlier decision affirming the denial of benefits. A 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; reconsideration is governed by 20 C.F.R. §§ 802.407 and 802.409.

Plain-English summary

Tramond Bourgeois asked the Board to reconsider its decision affirming denial of payment for shoulder surgery. He argued that the surgery treated an AC joint condition found to be work related. The Board declined to consider that theory because he first raised it on reconsideration. It also noted that he had not challenged the earlier finding that the AC joint sprain had resolved before the surgery. The Board denied reconsideration.

Decision snapshot

• Authority: Board reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. §§ 802.407, 802.409.
• Outcome: Motion for reconsideration denied.
• Key point: A new theory for surgical coverage could not be raised for the first time on reconsideration.

Full text (DOL BRB public release)

U.S. Department of Labor
Benefits Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

BRB No. 18-0253

TRAMOND M. BOURGEOIS
)
)
Claimant-Petitioner
)
)
v. )
)
FAB-CON, INCORPORATED
)
) DATE ISSUED: 03/21/2019
and
)
)
SIGNAL MUTUAL INDEMNITY
)
ASSOCIATION, LIMITED
)
)
Employer/Carrier-
) ORDER on MOTION for
Respondents
) RECONSIDERATION

Claimant has filed a timely motion for reconsideration of the Board’s decision in Bourgeois v. Fab-Con, Inc., BRB No. 18-0253 (Nov. 15, 2018). 33 U.S.C. §921(b)(5); 20 C.F.R. §802.407. Claimant challenges the Board’s affirmance of the administrative law judge’s denial of benefits. Employer responds, urging the Board to deny claimant’s motion. Because claimant has not established error in the Board’s decision, we deny his motion for reconsideration.

Claimant challenges only the Board’s affirmance of the administrative law judge’s denial of payment for the cost of the 2017 shoulder surgery. In a theory not previously raised, claimant asserts the purpose of the surgery was, in part, to examine and relieve the AC joint. He reasons that the AC joint condition was found to be work-related, making the surgery work-related. We decline to address claimant’s theory of recovery because he is raising it for the first time in a motion for reconsideration. See, e.g., Johnston v. Hayward Baker, 48 BRBS 59 (2014); Ravalli v. Pasha Maritime Services, 36 BRBS 91 (2002), denying recon. in 36 BRBS 47 (2002). Further, as set forth in our decision, Bourgeois, slip op. at 5 n.6, claimant did not challenge the administrative law judge’s finding that the AC

joint sprain resolved as of November 4, 2014. He cannot now assert that the 2017 surgery was to repair this fully-resolved condition.1

Accordingly, claimant’s motion for reconsideration is denied. 20 C.F.R. §802.409.

SO ORDERED.

JUDITH S. BOGGS
Administrative Appeals Judge

GREG J. BUZZARD
Administrative Appeals Judge

RYAN GILLIGAN
Administrative Appeals Judge

1
Should claimant believe there was a mistake in fact in the administrative law judge’s decision or a change in his condition, he may file a motion for modification with the district director. 33 U.S.C. §922; 20 C.F.R. §702.373.