An employer must serve a claimant with a notice of controversion, or the employer may be liabile for additional compensation under Section 14(e), according to the Benefits Review Board. Fowler v. M.T.C. East, 58 BRBS 1 (2024) (Boggs, J. dissenting), motion for recon pending.

The Board recently addressed an issue of first impression: “whether service on a claimant is a required part of filing an employer’s notice of controversion under Section 14(d) of the Act, 33 U.S.C. §914(d), such that failure to do so makes the employer liable for additional compensation under Section 14(e), 33 U.S.C. §914(e).” After a discussion of the undisputed facts, the parties’ respective positions, and an extensive analysis of the pertinent provisions of the Act and accompanying regulations, the Board held: “the Act is silent on whether the filing in Section 14(d) includes service;” therefore, “the regulation implemented by the Secretary of Labor [Section 702.251] permissibly fills a silent statutory gap and, pursuant to its straightforward terms, service on the claimant [by the employer or its carrier] is a required component of filing a notice under Section 14(d).” The failure to timely do so subjects an employer to liability for additional compensation under Section 14(e).

In reaching this conclusion, the Board stated inclusion of service as a part of filing is well within the Secretary’s general authority, as the administrator of the Act, to make all regulations necessary to that administration and specific authority, as exemplified in Sections 12(c), 19(a), and 19(b), to regulate how the statutory notice and filing requirements of the Act are met. In this regard, the Board noted both the regulation enacted by the Secretary, Section 702.251, [“[a] copy of the notice must also be given to the claimant.]” and the “form prescribed by the Director” as delineated in Section 14(d), the LS-207 [“a copy of the completed form must be mailed to the claimant and claimant’s representative” – that form also requires verification, via the employer’s signature, that it was, in fact, “mailed to the claimant and claimant’s representative”], mandate the employer directly serve its notice on the claimant. The Board further stated failure to provide “direct and timely notice” to the claimant of an employer’s grounds for controversion discourages “the prompt resolution of claims” and as such falls contrary to the intended purpose of Sections 14(e) and (f). 

Certain penalties under the Longshore Act have increased effective January 2, 2018.  The penalty under Section 14(g) of the Act, for failure of an employer to report the termination of payments, has increased to $285 from $279.  The penalty under Section 30 for failure to report an injury now has a maximum penalty of $23,426, up from $22,957.  In assessing this penalty, the District Director may consider certain aggravating or mitigating factors, and may rely upon a graduated schedule of penalty amounts.  Finally, the penalty under Section 48a, for discrimination against employees who bring compensation proceedings, ranges from a maximum of $11,712 and a minimum of $2,343.  These increases were prompted by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which requires agencies to adjust the levels of existing civil monetary penalties annually based on inflation.  The Division of Longshore and Harbor Workers' Compensation of the Department of Labor provided notice of these increases in Industry Notice 163, which may be viewed here.