Edward D. Davalos v. Port America Texas, Incorporated and Ports Insurance Company, Incorporated (Board decision, May 8, 2019)

BRB interlocutory order. This unpublished order is not precedent. The Benefits Review Board dismissed the employer's appeal without prejudice and remanded the case for modification proceedings before an administrative law judge. The appeal may be reinstated by a timely motion after the modification decision. A final Board decision ordinarily becomes final 60 days after issuance absent timely judicial review or reconsideration under 20 C.F.R. § 802.406; a party may seek Board reconsideration within 30 days under § 802.407.

Plain-English summary

Port America Texas sought modification of an administrative law judge's decision while its appeal in Edward Davalos's case was pending before the Benefits Review Board. The employer asked the Board to dismiss the appeal without prejudice and return the case to the judge. The Board granted that request. It said the employer could move to reinstate the original appeal within 30 days after the modification decision was filed. Any party adversely affected by that decision could also file a new appeal within 30 days. The order does not decide the merits of the original appeal or the modification request.

Decision snapshot

• Authority: Modification under 33 U.S.C. § 922 and Board procedure under 20 C.F.R. § 802.301(c).
• Outcome: Employer's appeal dismissed without prejudice; case remanded for modification proceedings.
• Key point: The original appeal could return to the Board after the modification decision on a timely 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. 19-0281
Case No. 2018-LHC-00601
OWCP No. 08-302298

EDWARD D. DAVALOS
)
)
Claimant-Respondent
)
)
v. )
) DATE ISSUED: 05/08/2019
PORT AMERICA TEXAS,
)
INCORPORATED
)
)
and
)
)
PORTS INSURANCE COMPANY,
)
INCORPORATED
)
)
Employer/Carrier-
)
Petitioners
) ORDER

On April 25, 2019, employer notified the Board that it has filed with Administrative Law Judge Larry W. Price a motion for modification pursuant to Section 22 of the Act, 33 U.S.C. §922. Employer moves the Board to dismiss its appeal without prejudice and to remand the case to Judge Price.

We dismiss employer’s appeal without prejudice and remand the case to the administrative law judge for modification proceedings. 20 C.F.R. §802.301(c). Employer’s appeal of the administrative law judge’s initial decision will be reinstated provided employer files a motion for reinstatement within 30 days of the date the administrative law judge’s decision on modification is filed by the district director. 20 C.F.R. §802.301(c). Any party adversely affected by the decision granting or denying modification may file a new appeal with the Board within 30 days of the date the decision on modification is filed. 33 U.S.C. §921(a); 20 C.F.R. §§802.205, 802.301(c). JUDITH S. BOGGS, Chief Administrative Appeals Judge

GREG J. BUZZARD
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge