The Benefits Review Board (BRB) recently ruled in Fowler v. M.T.C. that a claimant was entitled to additional compensation under Section 14(e) of the Longshore and Harbor Workers’ Compensation Act (LHWCA) because the employer did not serve the LS-207 it filed with the Office of Workers’ Compensation Programs (OWCP) to the claimant.
Section 14(d) of the LHWCA reads:
If the employer controverts the right to compensation he shall file with the deputy commissioner on or before the fourteenth day after he has knowledge of the alleged injury or death, a notice, in accordance with a form prescribed by the commission, stating that the right to compensation is controverted[.]
The BRB ruled in Fowler v. M.T.C. that “file” in this context includes sending the notice to a claimant and failure to do so enacts penalties under Section 14(e). Therefore, any notice of controversion should be provided to the claimant once filed to avoid paying additional compensation.
Fowler v. M.T.C. – Background
In Fowler, Claimant filed a claim for hearing loss attributed to his work as a longshoreman. On September 8, 2020, Employer paid permanent partial disability benefits for a period from May 8 to May 14, 2020 and provided the OWCP with Form LS-207, Notice of Controversion of Right of Compensation. Claimant was notified of the controversion from the OWCP.
After all benefits owed were paid, Claimant sought additional compensation under Section 14(e) for Employer’s failure to serve Claimant with its notice of controversion. The Administrative Law Judge (ALJ) found filing and service are separate acts and therefore, failure to serve the notice of controversion to Claimant does not violate Section 14(d) and therefore does not enact Section 14(e).
The case was appealed to the BRB. Claimant argued that Section 14(d) is vague and should be interpreted though 20 C.F.R. § 702.251, which states that employer must use the form prescribed by the Director and a copy of the notice must also be given to the claimant. The form prescribed, LS-207, reads, “a copy of the completed form must be mailed to the claimant and claimant’s representative” and “As verified by the signature below, this form was mailed to the claimant and claimant’s representative.”
The BRB found that Section 14(d) is ambiguous and applied the Chevron deference. To do so, it relied on 20 C.F.R. § 702.251 and other requirements of service throughout the LHWCA, ultimately finding that file includes service to the claimant. As such, Claimant was entitled to additional compensation under Section 14(e) for violation of Section 14(d).
Judge Boggs wrote a dissent agreeing with the ALJ that filing is an act between a party and the government official and not further interpretation through the Chevron analysis was needed.
Pending Appeal at the Fourth Circuit
The BRB reached its decision on April 5, 2024 – prior to the Supreme Court overruling Chevron in Loper Bright. Cases decided before Loper Bright that relied on the Chevron deference remain good law.
This decision has been appealed to the Fourth Circuit and the discussion over the application of Chevron, should it be needed, will be interesting. Until then, the BRB’s decision highlights the need for employers and carriers to serve notice of controversion to claimants once filed to close an avenue for additional compensation.