Ibish Fejza v. Fluor Federal Global Projects and Insurance Company of the State of Pennsylvania (Board decision, September 30, 2020)

BRB interlocutory order. This unpublished order is not precedent. The Board dismissed an appeal from a partial ruling while Ibish Fejza's medical-benefits claim remained pending before the administrative law judge. The judge had not issued a final decision on the claim. 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 § 802.407.

Plain-English summary

Ibish Fejza sought benefits under the Defense Base Act. An administrative law judge ruled that his disability-benefits claim was filed too late but left his medical-benefits claim pending. Fejza appealed the partial ruling before the judge finished the case. The Board held that the filing deadline issue could be reviewed after a final decision and did not qualify for immediate appeal. It dismissed the appeal without deciding whether the judge's deadline ruling was correct.

Decision snapshot

• Authority: Longshore Act filing period under 33 U.S.C. § 913 and review of final orders under § 921(b).
• Outcome: Early appeal dismissed; medical-benefits claim remained pending before the judge.
• Key point: A partial ruling on disability benefits was reviewable after final disposition of the remaining medical-benefits claim.

Full text (DOL BRB public release)

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

BRB No. 20-0522
Case No. 2019-LDA-00983
OWCP No. 02-319937

IBISH FEJZA
)
)
Claimant-Petitioner
)
)
v. )
)
FLUOR FEDERAL GLOBAL PROJECTS
)
) DATE ISSUED: 09/30/2020
and
)
)
INSURANCE COMPANY OF THE STATE
)
OF PENNSYLVANIA
)
)
Employer/Carrier-
)
Respondents
) ORDER

Claimant filed a timely notice of appeal of Administrative Law Judge Theodore W.
Annos’s Order Granting Employer/Carrier’s Motion for Partial Summary Decision and Order Denying Claimant’s Motion for Reconsideration (2019-LDA-00983) rendered on a claim filed pursuant to the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §901 et seq., as extended by the Defense Base Act, 42 U.S.C. §1651 et seq. 33 U.S.C. §921(a); 20 C.F.R. §§802.205(a), 802.206(e). This appeal is assigned the Benefits Review Board’s docket number 20-0522. 20 C.F.R. §802.210.

Employer has filed a motion to dismiss Claimant’s appeal as review of the administrative law judge’s interlocutory order is not warranted in this case. Claimant has not responded.

This appeal is interlocutory because the administrative law judge granted Employer’s motion for partial summary decision finding Claimant’s claim for disability

benefits untimely filed pursuant to Section 13 of the Act, 33 U.S.C. §913. However, because Claimant’s claim for medical benefits remains pending, the administrative law judge did not issue a “final” decision awarding or denying benefits. 33 U.S.C. §919(e); 20 C.F.R. §702.348; see Siler v. Dillingham Ship Repair, 28 BRBS 38 (1994) (claims for medical benefits are not subject to any statutes of limitations).

Generally, the Board does not decide cases on an interlocutory basis in order to avoid piecemeal review. Hudnall v. Jacksonville Shipyards, 17 BRBS 174 (1985). In order for a non-final order to be appealable, it must: conclusively determine the disputed question; resolve an important issue completely separate from the merits of the action; and be effectively unreviewable on appeal from a final judgment. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988) (“collateral order doctrine”); see, e.g., Zaradnik v. The Dutra Group, 52 BRBS 23 (2018); Niazy v. The Capital Hilton Hotel, 19 BRBS 266 (1987). If the order appealed does not satisfy these three elements, the Board, in its discretion, may grant review if it finds it necessary to direct the course of the adjudicatory process. 33 U.S.C. §923(a); see, e.g., Watson v. Wardell Orthopaedics, P.C., 51 BRBS 17 (2017); Baroumes v. Eagle Marine Services, 23 BRBS 80 (1988).

We grant Employer’s motion and dismiss Claimant’s appeal. This appeal does not satisfy the criteria of the collateral order doctrine as the issue decided is not “collateral” nor is it unreviewable after a final order issues. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976) (decisions granting partial summary judgment but leaving the “award[ ] of other relief ... to be resolved have never been considered ... ‘final’ within the meaning of 28 U.S.C. § 1291”); see, e.g., Zaradnik, 52 BRBS 23; Butler v. Ingalls Shipbuilding, Inc., 28 BRBS 114 (1994). Moreover, the Board need not direct the course of the adjudicatory process in this case. See, e.g., Watson, 51 BRBS 17 (addressing scope of administrative law judge’s authority under Section 19(a)); L.D. [Dale] v. Northrop Grumman Ship Systems, Inc., 42 BRBS 1, recon. denied, 42 BRBS 46 (2008) (addressing potential conflict between two sections of the Act). The administrative law judge’s finding that Claimant’s compensation claim was untimely filed is fully reviewable after he issues a final decision. 33 U.S.C. §§919(e), 921(b); J.T. [Tracy] v. Global Int’l Offshore, Ltd., 43 BRBS 92 (2009), aff’d sub nom. Keller Found./Case Found. v. Tracy, 696 F.3d 835, 46 BRBS 69(CRT) (9th Cir. 2012), cert. denied, 570 U.S. 904 (2013); Rochester v. George Washington Univ., 30 BRBS 233 (1997); see also Rhine v. Stevedoring Services of America, 596 F.3d 1161, 44 BRBS 9(CRT) (9th Cir. 2010); 20 C.F.R. §802.201(a).

2

Accordingly, we dismiss Claimant’s appeal.

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

GREG J. BUZZARD
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge