Frank N. Lacanfora v. Ceres Marine Terminals, Incorporated (Board decision, August 13, 2019)

BRB interlocutory order. This unpublished order is not precedent. The Benefits Review Board dismissed the employer's appeal without prejudice because a modification motion was pending before the administrative law judge. The modification proceeding remains pending, and the Board may reinstate this appeal on a timely request under 20 C.F.R. § 802.301(c). 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

Ceres Marine Terminals appealed in Frank Lacanfora's Longshore case, then told the Benefits Review Board that it had filed a modification motion with the administrative law judge. The Board applied its rule requiring dismissal of an appeal without prejudice when modification is pending. It returned the case for modification proceedings without deciding the appeal's merits. The employer may ask the Board to reinstate its original appeal within 30 days after the modification decision is filed. Any party aggrieved by that decision may file a separate appeal within the time stated in the order.

Decision snapshot

• Authority: Modification under 33 U.S.C. § 922; dismissal and reinstatement of an appeal under 20 C.F.R. § 802.301(c).
• Outcome: Employer's appeal dismissed without prejudice; case remanded for modification proceedings.
• Key point: A pending modification motion suspends the Board appeal, which can be reinstated on a timely request after the modification 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. 19-0414
Case No. 2018-LHC-00022
OWCP No. 05-304561

FRANK N. LACANFORA
)
)
Claimant-Respondent
)
)
v. )
) DATE ISSUED: 08/13/2019
CERES MARINE TERMINALS,
)
INCORPORATED
)
)
Self-Insured
)
Employer-Petitioner
) ORDER

By letter filed July 17, 2019, employer notified the Board that it has filed a Section 22, 33 U.S.C. §922, motion for modification which is pending with the administrative law judge. Section 802.301(c), 20 C.F.R. §802.301(c), states that if a party has filed a motion for modification, the Board shall, upon notification of such filing, dismiss the case without prejudice. We thus dismiss employer’s appeal without prejudice and remand this case to the Office of Administrative Law Judges for modification proceedings.

Employer’s appeal will be reinstated by the Board only if employer requests reinstatement. The request for reinstatement must be filed with the Board within 30 days from the date the decision on modification is filed, 20 C.F.R. §802.301(c), and it must be identified by the Board’s docket number assigned to this case, BRB No. 19-0414. The request for reinstatement must be served on all parties. If reinstatement is requested, the Board will consider only the issues raised in the petitioner’s appeal of the original decisions.

Any party who is aggrieved by the administrative law judge’s decision on modification may file a notice of appeal thereof within 30 days of the date the decision on modification is filed. 33 U.S.C. §921(a); 20 C.F.R. §802.205. This appeal will be assigned a new docket number and will be consolidated with any reinstated appeal of the original decisions. Accordingly, employer’s appeal is dismissed without prejudice and the case is remanded to the Office of Administrative Law Judges for modification proceedings.

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

GREG J. BUZZARD
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge