Dale L. Allen v. Island Creek Kentucky Mining Company and Island Creek Coal Company (Board decision, January 12, 2021)

BRB interlocutory order. This unpublished order is not precedent. The Benefits Review Board denied the employer and carrier's motion for reconsideration of an earlier decision that affirmed in part, vacated in part, and returned the benefits case for further proceedings. The reconsideration request is disposed of, while the underlying benefit entitlement remains unresolved on remand.

Plain-English summary

Island Creek Kentucky Mining Company and its carrier sought Board reconsideration of an earlier ruling on Dale Allen's black lung benefits claim. That ruling affirmed part of the administrative law judge's award but vacated another part, leaving further proceedings. The Director supported the Board's earlier ruling. No Board member voted to grant reconsideration, so the Board denied the motion without resolving the remaining benefits issues.

Decision snapshot

• Authority: Reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. §§ 802.407 and 802.409.
• Outcome: Employer and carrier's motion for reconsideration en banc denied; underlying case still pending after partial vacatur.
• Key point: Denial of reconsideration left the earlier remand ruling in place.

Full text (DOL BRB public release)

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

BRB No. 19-0201 BLA
Case No. 2013-BLA-05933

DALE L. ALLEN
)
)
Claimant-Respondent
)
)
v. )
)
ISLAND CREEK KENTUCKY MINING
)
COMPANY
)
)
and
)
) DATE ISSUED: 01/12/2021
ISLAND CREEK COAL COMPANY
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
) ORDER on MOTION for
) RECONSIDERATION
Party-in-Interest
) EN BANC

Employer has filed a timely motion for reconsideration en banc of the Benefits Review Board’s Decision and Order affirming in part and vacating in part the administrative law judge’s award of benefits in this case. Allen v. Island Creek Kentucky Mining Co., BRB No. 19-0201 BLA (May 27, 2020) (unpub.). 33 U.S.C. §921(b)(5); 20 C.F.R. §802.407(a). The Director, Office of Workers’ Compensation Programs, responds in support of the Board’s decision, to which Employer replies. After consideration of Employer’s contentions and review of the Board’s disposition of this case, no member of the Board voted to grant Employer’s motion. Consequently, Employer’s motion for reconsideration en banc is denied. 20 C.F.R. §§801.301(b), (c), 802.407(b), (d), 802.409. By Order of the Board:

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

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