Rocky A. Jenkins v. C & D Services, Incorporated and American Resources Company (Board decision, November 30, 2022)

BRB final decision. This unpublished order is not precedent. The Benefits Review Board denied the employer's motion for reconsideration en banc of its earlier decision affirming a black lung benefits award. 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

The Board had affirmed a black lung benefits award to Rocky Jenkins in August 2021. The employer and carrier timely sought reconsideration by the full Board. After reviewing the motion and its earlier decision, a majority of the Board's permanent members did not vote to grant reconsideration. The Board denied the motion. This order resolves the reconsideration request without a new merits analysis.

Decision snapshot

• Authority: En banc reconsideration under 33 U.S.C. § 921(b)(5) and 20 C.F.R. § 802.407.
• Outcome: Motion for reconsideration en banc denied.
• Key point: A majority of permanent Board members did not vote to reopen the earlier 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. 20-0327 BLA

ROCKY A. JENKINS
)
)
Claimant-Respondent
)
)
v. )
)
C & D SERVICES, INCORPORATED
)
)
and
)
)
AMERICAN RESOURCES COMPANY
) DATE ISSUED: 11/30/2022
)
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 in this case, Jenkins v. C & D Servs., Inc., BRB No. 20-0327 BLA (Aug. 31, 2021) (unpub.), affirming the award of benefits. 33 U.S.C.
§921(b)(5); 20 C.F.R. §802.407(a). After consideration of Employer’s contentions and review of the Board’s disposition of this case, a majority of the Board’s permanent members did not vote to grant Employer’s motion. Therefore, 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