Kristopher V. Worrell v. Virginia International Terminals, LLC (Board decision, July 2, 2020)

BRB interlocutory order. This unpublished decision is not precedent. The Board dismissed the employer's premature appeal while reconsideration of a medical treatment order remained before the district director. 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 request Board reconsideration within 30 days under 20 C.F.R. § 802.407.

Plain-English summary

Virginia International Terminals and its carrier appealed a district director's order to authorize physical therapy for Kristopher Worrell. Their timely motion for reconsideration was still pending when they appealed. The Board dismissed the appeal as premature and also noted that disputed facts about the need for treatment belong before an administrative law judge if informal proceedings do not resolve them. It dismissed this appeal with prejudice, leaving the reconsideration motion for the district director to address.

Decision snapshot

• Authority: Premature appeals under 20 C.F.R. § 802.206(f) and medical treatment disputes under 20 C.F.R. § 702.315.
• Outcome: Employer's appeal dismissed with prejudice as premature.
• Key point: A pending reconsideration motion prevented this appeal from proceeding.

Full text (DOL BRB public release)

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

BRB No. 20-0179
OWCP No. 05-317298

KRISTOPHER V. WORRELL
)
)
Claimant-Respondent
)
)
v. )
)
VIRGINIA INTERNATIONAL
)
TERMINALS, LLC
)
)
and
)
)
SIGNAL MUTUAL INDEMNITY
) DATE ISSUED: 07/02/2020
ASSOCIATION, LIMITED
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Respondent
) ORDER

Employer and its carrier appeal the January 9, 2020 Order Compelling Authorization and Furnishing of Medical Treatment (OWCP No. 05-317298) of District Director Theresa A. Magyar rendered on a claim filed pursuant to the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §901 et seq. (Act). Employer has filed its Petition for Review and brief, contending the district director erred in ordering Employer “to authorize and pay for all physical therapy with Wardell Orthopaedics under the direction of Dr. Arthur Wardell.” Employer contends the selection of Dr. Wardell’s physical therapy practice is inappropriate because it controverts, as unnecessary to treat Claimant’s work injury, the claim for the type of physical therapy Dr. Wardell recommended. Employer further asserts it is entitled to select Claimant’s physical therapist. The Director, Office of Workers’ Compensation Programs, responds, moving that Employer’s appeal be dismissed as premature because the district director has not acted on Employer’s timely-filed motion for reconsideration. Employer filed a reply in which it asserts the case should be forwarded to the Office of Administrative Law Judges (OALJ) for a formal hearing on the necessity of physical therapy after the district director acts on its motion for reconsideration, citing the Board’s recent Order in Sykes v. Virginia Int’l Terminals, LLC, BRB No. 20-02024 (June 25, 2020).

We dismiss Employer’s appeal for two reasons. First, its appeal was prematurely filed on February 7, 2020, while its January 15, 2020 motion for reconsideration remained pending with the district director.1 Under 20 C.F.R. §802.206(f), an appeal filed while a timely motion for reconsideration is pending must be dismissed. Aetna Casualty & Surety Co. v. Director, OWCP, 97 F.3d 815, 30 BRBS 81(CRT) (5th Cir. 1996). In order to preserve its rights, a party must file a new appeal within 30 days of the issuance of an order disposing of the motion for reconsideration. 20 C.F.R. §§802.206(d), (e).

Second, Employer’s appeal raises questions of fact regarding the necessity of Claimant’s medical treatment, which an administrative law judge must address if the parties are not in agreement at the conclusion of the informal proceedings. Weikert v. Universal Maritime Serv. Corp., 36 BRBS 38 (2002); Sanders v. Marine Terminals Corp., 31 BRBS 19 (1997) (Brown, J., concurring); see also Teer v. Huntington Ingalls, Inc., Pascagoula Oper., 53 BRBS 5 (2019); 20 C.F.R. §702.315. In such circumstances, the district director must refer the case to the OALJ at the request of any party. Ingalls Shipbuilding, Inc. v. Asbestos Health Claimants, 17 F.3d 130, 28 BRBS 12(CRT) (5th Cir. 1994).

1
In its January 15, 2020 Motion for Reconsideration, Employer challenged the necessity of physical therapy to treat Claimant’s injury. No informal conference was held on this issue, and Employer’s motion currently remains pending before the district director.

2
Accordingly, we dismiss Employer’s appeal with prejudice.

SO ORDERED.

GREG J. BUZZARD
Administrative Appeals Judge

DANIEL T. GRESH
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge