Joyce Ann Hicks v. Magic Mining, Incorporated (Board decision, April 30, 2020)

BRB final decision. This unpublished order is not precedent. The Board denied Magic Mining's request to reconsider an earlier decision in the survivor claim. Under 20 C.F.R. § 802.406, a timely reconsideration request makes the 60-day finality period run from the Board's decision on reconsideration. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Magic Mining asked the Benefits Review Board to reconsider an earlier decision in Joyce Ann Hicks's black lung survivor claim and suggested review by the full Board. The Board reported that a majority had not voted to vacate or change its earlier decision. It therefore denied the motion for reconsideration. This short order does not revisit the merits of the survivor claim.

Decision snapshot

• Authority: Board reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. § 802.407.
• Outcome: Motion for reconsideration denied; earlier Board decision left in place.
• Key point: A majority of the Board did not vote to vacate or modify the earlier decision.

Full text (DOL BRB public release)

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

BRB No. 19-0155 BLA

JOYCE ANN HICKS
)
(Widow of CARL HICKS)
)
)
Claimant-Respondent
)
)
v. )
)
MAGIC MINING, INCORPORATED
)
) DATE ISSUED: 04/30/2020
Employer-Petitioner
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
) ORDER on MOTION for
) RECONSIDERATION EN
Party-in-Interest
) BANC

Employer has filed a timely motion for reconsideration of the Benefits Review Board’s Decision and Order in the Widow’s claim in Hicks v. Magic Mining, Inc., BRB Nos. 19-0155 BLA, 19-0278 BLA-A (Apr. 30, 2020) (unpub.), suggesting the appropriateness of en banc review.
33 U.S.C. §921(b)(5); 20 C.F.R. §802.407(a), (b). Claimant has not responded. The Director,
Office of Workers’ Compensation Programs, has filed a response opposing employer’s motion.
Employer has filed a reply brief.

A majority of the Board has not voted to vacate or modify the Board’s decision. Therefore, employer’s motion for reconsideration is denied. 33 U.S.C. §921(b)(5); 20 C.F.R. §§801.301(c);
802.407(d); 802.409.

By Order of the Board:

Thomas O. Shepherd, Jr.
Clerk of the Appellate Boards