Bruce Zimmer v. Jack Gray Transport and Reliance Insurance Company (Board decision, December 21, 2020)

BRB interlocutory order. This unpublished order is not precedent. The Benefits Review Board dismissed Bruce Zimmer’s appeal without prejudice because a second motion for reconsideration remains pending before the administrative law judge. The underlying claim remains unresolved. 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

Bruce Zimmer appealed an administrative law judge’s order that partly granted reconsideration in his Longshore Act case. He later told the Board that a second timely reconsideration motion was still pending before the judge. Board rules require dismissal of an appeal filed while such a motion is pending. The Board dismissed this appeal without prejudice and said an aggrieved party may file a new appeal after the judge rules on the second motion.

Decision snapshot

• Authority: Premature appeals during reconsideration under 20 C.F.R. § 802.206(f).
• Outcome: Appeal dismissed without prejudice; reconsideration remains pending before the administrative law judge.
• Key point: A timely pending reconsideration motion makes an appeal to the Board premature.

Full text (DOL BRB public release)

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

BRB No. 21-0058
Case No. 2011-LHC-00257
OWCP No. 10-037531

BRUCE ZIMMER
)
)
Claimant-Petitioner
)
)
v. )
)
JACK GRAY TRANSPORT
) DATE ISSUED: 12/21/2020
)
and
)
)
RELIANCE INSURANCE COMPANY c/o
)
IIGA/GAB ROBINS
) ORDER

Claimant filed a timely notice of appeal of Administrative Law Judge Peter B.
Silvain, Jr.’s Order Partially Granting Motion for Reconsideration, which the Benefits Review Board acknowledged on November 9, 2020. On December 14, 2020, Claimant informed the Board that a second timely motion for reconsideration is pending and moved to remand the case for the administrative law judge to address it. See 20 C.F.R.
§802.206(b)(1).

Pursuant to 20 C.F.R. §802.206(f), we must dismiss Claimant’s premature appeal without prejudice.1 See Aetna Cas. & Sur. Co. v. Director, OWCP, 97 F.3d 815, 30 BRBS

1
Section 20 C.F.R. §802.206(f) states:

If a timely motion for reconsideration of a decision or order of an administrative law judge or deputy commissioner is filed, any appeal to the Board, whether filed prior to or subsequent to the filing of the timely motion for reconsideration, shall be dismissed without prejudice as premature.
81(CRT) (5th Cir. 1996). Any aggrieved party may file a new appeal of the administrative law judge’s Decision and Order and Orders on Reconsideration with the Board within 30 days after the date the decision on second reconsideration is filed in the office of the district director. 33 U.S.C. §§919(e), 921(a); 20 C.F.R. §§802.205(a), 802.206(d)-(f).

Accordingly, we dismiss Claimant’s appeal.

SO ORDERED.

JUDITH S. BOGGS, Chief
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

MELISSA LIN JONES
Administrative Appeals Judge

Following decision by the administrative law judge or deputy commissioner pursuant to either paragraph (d) or (e) of this section, a new notice of appeal shall be filed with the Clerk of the Board by any party who wishes to appeal.
During the pendency of an appeal to the Board, any party having knowledge that a motion for reconsideration of a decision or order of an administrative law judge or deputy commissioner has been filed shall notify the Board of such filing.
2