Kermit F. Bentley v. Kentucky Elkhorn Coal Incorporated and American Business & Mercantile Insurance, Incorporated (Board decision, September 29, 2021)

BRB final decision. This unpublished reconsideration order is not precedent. The Benefits Review Board denied the employer and carrier's request for reconsideration en banc, leaving its earlier affirmance of Bentley's benefit award in place. Under 20 C.F.R. § 802.406, a Board decision becomes final 60 days after issuance unless a timely petition for judicial review or a timely request for Board reconsideration is filed. A party may request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Kentucky Elkhorn Coal and its insurer asked the full Benefits Review Board to reconsider a July 2020 decision affirming black lung benefits for Kermit Bentley. Bentley and the Director of the Office of Workers' Compensation Programs supported the earlier decision. After reviewing the employer's arguments, no Board member voted to grant the motion. The Board denied reconsideration en banc, leaving the earlier benefit award undisturbed. The order gives no additional ruling on the medical evidence.

Decision snapshot

• Authority: 33 U.S.C. § 921(b)(5); 20 C.F.R. §§ 801.301, 802.407, and 802.409.
• Outcome: En banc reconsideration denied; the earlier affirmance of benefits remains in place.
• Key point: No Board member voted to grant the employer's reconsideration motion.

Full text (DOL BRB public release)

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

BRB No. 19-0252 BLA

KERMIT F. BENTLEY
)
)
Claimant-Respondent
)
)
v. )
)
KENTUCKY ELKHORN COAL
)
INCORPORATED
)
)
and
)
)
AMERICAN BUSINESS & MERCANTILE ) DATE ISSUED: 09/29/202
INSURANCE, INCORPORATED
)
)
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 the administrative law judge’s award of benefits in this case, Bentley v. Ky. Elkhorn Coal Inc., BRB No. 19-0252 (July 14, 2020) (unpub.). 33 U.S.C. §921(b)(5); 20 C.F.R. §802.407(a). Claimant and the Director, Office of Workers’ Compensation Programs, respond in support of the Board’s decision. 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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