Antonio Diaz-Maldonado v. Conrad Industries, Incorporated and American Longshore Mutual Association (Board decision, October 29, 2020)

BRB final decision. This unpublished decision is not precedent. A Board decision ordinarily becomes final 60 days after issuance unless a timely petition for judicial review or Board reconsideration is filed 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

Antonio Diaz-Maldonado appealed a Longshore compensation decision without counsel. The judge’s original order was served in March 2020, and an order denying reconsideration was served on April 24, 2020. Even assuming the reconsideration request extended the appeal period, the Board found that an appeal filed on August 3 missed the thirty-day deadline. It dismissed the appeal without reviewing the compensation merits.

Decision snapshot

• Authority: Appeal time limits under 33 U.S.C. § 921(a) and 20 C.F.R. §§ 802.205, 802.206.
• Outcome: Appeal dismissed as untimely; the Board did not reach the merits.
• Key point: The August appeal was too late even if the April reconsideration order started a new appeal period.

Full text (DOL BRB public release)

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

BRB No. 20-0460
Case No. 2018-LHC-00809
OWCP No. 07-309788

ANTONIO DIAZ-MALDONADO )
)
Claimant-Petitioner )
)
v. )
)
CONRAD INDUSTRIES, INCORPORATED )
)
and ) DATE ISSUED: 10/29/2020
)
AMERICAN LONGSHORE MUTUAL )
ASSOCIATION c/o A.E.U., )
INCORPORATED
)
)
Employer/Carrier- )
Respondents ) ORDER

Employer has filed a motion to dismiss as untimely the appeal filed by Claimant, who is not represented by legal counsel. 20 C.F.R. §802.401(b). Claimant responds that the Benefits Review Board should deny Employer’s motion.

We grant Employer’s motion as Claimant’s appeal was not timely filed. The administrative law judge’s original Decision and Order was filed and served by the district director on March 5, 2020. 33 U.S.C. §919(e); 20 C.F.R. §702.350. Claimant filed a motion for reconsideration on April 20, 2020, which the administrative law judge denied as untimely and without merit. This Order was filed and served by the district director on April 24, 2020. Assuming for the sake of argument Claimant’s motion for reconsideration tolled the time for filing an appeal, see 20 C.F.R. §802.206, any appeal to the Board had to be filed within 30 days after April 24, 2020, at the latest.1 33 U.S.C. §921(a); 20 C.F.R.
§§802.205, 802.206(e). As Claimant did not file an appeal with the Board until August 3, 2020, well after the 30-day statutory deadline, the law requires we dismiss his appeal.2 See, e.g., Beach v. Noble Drilling Corp., 29 BRBS 22 (1995) (order on recon. en banc) (McGranery, J., concurring) (Brown, J., dissenting).

Accordingly, we dismiss claimant’s appeal as it was untimely filed.3

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge

1
The 30th day fell on a Sunday, May 24, 2020. Monday, May 25, was a federal holiday. Thus, any appeal had to have been filed by May 26, 2020. 20 C.F.R. §802.221(a).
2
Claimant’s July 1, 2020, letter to the administrative law judge also cannot be considered a timely appeal to the Board.
3
A motion for modification under 33 U.S.C. §922 to claim a change in condition or a mistake in a determination of fact in the prior decision may be viable.