William B. Kealoha v. Leeward Marine, Incorporated and Hawaii Employers' Mutual Insurance Company, Incorporated (Board decision, March 25, 2021)

BRB interlocutory order. This unpublished order is not precedent. The Benefits Review Board dismissed the employer and carrier's appeal as premature while a motion for district director reconsideration remained pending. A new appeal may be filed after the reconsideration order. 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

Leeward Marine and its carrier appealed a district director's default compensation order in William Kealoha's case. Their notice of appeal said they had also filed a second reconsideration motion that had not been decided. The Board dismissed the appeal as premature under its rule for appeals filed while timely reconsideration is pending. A party seeking Board review after the district director decides that motion must file a new notice of appeal within 30 days of the reconsideration order.

Decision snapshot

• Authority: Pending reconsideration rule in 20 C.F.R. § 802.206(f).
• Outcome: Employer's appeal dismissed as premature.
• Key point: The Board requires a new appeal after the district director resolves a timely reconsideration motion.

Full text (DOL BRB public release)

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

BRB No. 21-0259
OWCP No. 15-045509

WILLIAM B. KEALOHA
)
)
Claimant-Respondent
)
)
v. )
)
LEEWARD MARINE, INCORPORATED
)
)
and
)
)
HAWAII EMPLOYERS’ MUTUAL
) DATE ISSUED: 03/25/2021
INSURANCE COMPANY,
)
INCORPORATED
)
)
Employer/Carrier-
)
Petitioners
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
)
)
Party-in-Interest
) ORDER

On February 12, 2021, Employer/Carrier (Employer) filed a notice of appeal of District Director Todd Bruininks’s Supplemental Compensation Order - Declaration of Default filed January 15, 2021, and the Errata Order filed January 29, 2021. 33 U.S.C.
§921(a); 20 C.F.R. §802.205. We acknowledge this appeal and assign it the Board’s docket number 21-0259. 20 C.F.R. §802.210.

Employer/Carrier’s notice of appeal states it filed a second motion for reconsideration on February 3, 2021, which has not been acted on. The regulation at 20 C.F.R. §802.206(f) requires that the Board dismiss as premature any appeal filed in a case in which a timely motion for reconsideration has been filed with the district director or administrative law judge.1 See Aetna Casualty & Surety Co. v. Director, OWCP, 97 F.3d 815, 30 BRBS 81(CRT) (5th Cir. 1996). If any party is aggrieved by the district director’s original order or his order on reconsideration, any new appeal must be filed with the Board within 30 days of the filing date of the order on second reconsideration. 20 C.F.R.
§§802.205, 802.206(d)-(f).

Accordingly, Employer’s appeal is dismissed.

SO ORDERED.

GREG J. BUZZARD
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

DANIEL T. GRESH
Administrative Appeals Judge

1
Section 802.206(f) states:

If a timely motion for reconsideration of a decision or order of an administrative law judge or [district director] 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. Following decision by the administrative law judge or [district director] 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.
2