David Fowler v. M.T.C. East d/b/a Ports America, Incorporated (Board decision, May 30, 2025)

BRB interlocutory order. A Board majority considered the employer's amended reconsideration motion but left its earlier ruling in place: a notice contesting compensation must be served on the claimant as well as filed with the district director. It denied the requested change and en banc review, then returned the claim to the administrative law judge under its original remand. One judge dissented. The additional compensation issue remains pending. 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 seek Board reconsideration within 30 days under § 802.407.

Plain-English summary

David Fowler sought additional longshore compensation because his employer filed a notice contesting his hearing loss claim with the district director but did not give him a copy. The Board had previously held that service on the claimant was required and sent the issue back to the administrative law judge. The employer sought reconsideration after the Supreme Court changed the law on deference to agency interpretations. A Board majority held that its earlier reading of the notice requirement rested on its own statutory analysis and remained sound. It denied the employer's requested change and returned the case under the original remand; Judge Boggs dissented.

Decision snapshot

• Authority: Notice of controversion under 33 U.S.C. § 914(d) and 20 C.F.R. § 702.251; additional compensation under 33 U.S.C. § 914(e).
• Outcome: Reconsideration considered but requested relief and en banc review denied; original remand continues.
• Key point: The Board retained its ruling that an employer must serve its controversion notice on the claimant to complete the required filing.

Full text (DOL BRB public release)

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

BRB No. 22-0199

DAVID FOWLER
)
)
Claimant-Petitioner
)
)
v. )
)
M.T.C. EAST d/b/a PORTS AMERICA,
)
INCORPORATED
)
)
and
)
PUBLISHED
)
PORTS INSURANCE COMPANY,
)
INCORPORATED
) DATE ISSUED: 05/30/2025
)
Employer/Carrier-
)
Respondents
)
)
DIRECTOR, OFFICE OF WORKERS’
)
COMPENSATION PROGRAMS, UNITED
)
STATES DEPARTMENT OF LABOR
) ORDER on AMENDED
) MOTION for
Respondent
) RECONSIDERATION EN
BANC

GRESH, Chief Administrative Appeals Judge, and ROLFE, Administrative Appeals Judge:1

Employer filed a timely amended motion for reconsideration with a suggestion for en banc review with oral argument of the Benefits Review Board’s decision in Fowler v.

1 Administrative Appeals Judge Greg Buzzard is no longer with the Benefits Review

Board; Administrative Appeals Judge Jonathan Rolfe is substituted for him. M.T.C. East, 58 BRBS 1 (Apr. 5, 2024) (Boggs, J. dissenting), holding that service on the claimant is a required component of filing a notice of controversion under 33 U.S.C.
§914(d), reversing the ALJ’s denial of Claimant’s request for additional compensation under 33 U.S.C. §914(e), and remanding the case for further consideration consistent with its opinion.2 33 U.S.C. §921(b); 20 C.F.R. §802.407. Claimant and the Director, Office of Workers’ Compensation Programs (Director), each respond, urging the Board to deny the motion. We grant Employer’s amended motion for reconsideration but deny its request for en banc review with oral argument. For the reasons stated below, we also deny the relief requested.

Relevant to Employer’s motion for reconsideration, Section 14(d) of the Act requires an employer to file its notice of controversion (N/C) within fourteen days after becoming aware of an employee’s injury. 33 U.S.C. §914(d). Failure to do so can trigger the employer’s liability for ten percent additional compensation to the claimant under Section 14(e). 33 U.S.C. §914(e). As set forth more fully in the Board’s original decision, the pertinent facts are undisputed: Employer filed its N/C with the district director within fourteen days but did not serve Claimant. Claimant first became aware of the N/C outside the fourteen-day window when the district director informed him that Employer was controverting the claim. Although the underlying hearing loss claim was eventually resolved, at no point did Employer provide Claimant with a copy of its N/C, prompting Claimant’s request for additional compensation under Section 14(e).

Administrative Law Judge (ALJ) Monica Markley denied Claimant’s Section 14(e) claim for additional benefits. Claimant appealed, and the Director agreed with Claimant’s position. The specific question before the Board was “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).” Fowler, 58 BRBS at 1. Answering that question in the affirmative, the Board held 20 C.F.R. §702.251 and the “form prescribed by the Director” as delineated in Section 14(d), Form LS-207, mandate that Employer directly serve its N/C on Claimant and his representative. Fowler, 58 BRBS at

5. In reaching this conclusion, it held: “the Act is silent on whether the filing in Section

   2 On July 1, 2024, Employer requested the Board grant it leave to file an amended

motion for reconsideration to address intervening case law involving the Supreme Court of the United States’ decision in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). The Board, however, inadvertently issued a denial of Employer’s original motion for reconsideration on July 2, 2024. By order dated July 3, 2024, the Board rescinded its July 2, 2024 order, granted Employer leave to file its amended pleading, and set the accompanying briefing schedule for that filing.

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14(d) includes service;” therefore, “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 ).” Id. at 4-6. The Board, therefore, reversed the ALJ’s denial of Claimant’s request for additional compensation under Section 14(e) and remanded the case for further consideration. Id. at 6.

Employer asks the Board to reconsider its decision deferring to the Director’s position that the service requirement under 20 C.F.R. §702.251 permissibly fills the statutory gap in Section 14(d) because the Supreme Court of the United States subsequently held in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), that such deference under Chevron U.S.A., Inc. v. Natural Res.’s Def. Council, Inc., 467 U.S. 837, 842-845 (1984), is obsolete. Consequently, it asserts the Board is prohibited from deferring to the Director’s interpretation of any purported “statutory ambiguities.” Loper Bright, 603 U.S. at 401-403. Employer maintains the Board’s decision is “untenable” absent deference to the Director because the statutes and case law provide the N/C must be filed only with the district director to avoid potential liability under Section 14(e). Employer argues the Board should reconsider its interpretation of Section 14(d) in light of Loper Bright and under the standards for statutory interpretation set out in Holland v. Big River Minerals Corp., 181 F.3d 597, 603-604 (4th Cir. 1999), cert. denied, 528 U.S. 1117 (2000).3

The Director responds to Employer’s motion, asserting the Board did not give the Department’s position Chevron deference in rendering its decision, so the Board’s decision is consistent with Loper Bright. Because Employer has otherwise raised nothing new in its motion for reconsideration, the Director urges the Board to deny the motion. Claimant responds to Employer’s motion, similarly stating Loper Bright has no bearing on his position that a plain reading of Section 14(d) requires Employer to timely serve its N/C on both the Office of Workers’ Compensation Programs (OWCP) and Claimant.

3 In Holland, the United States Court of Appeals for the Fourth Circuit stated “statutory interpretation necessarily begins” by looking at the language of the statute itself to determine whether its meaning is plain and unambiguous. Holland, 181 F.3d at 603 (internal citations omitted). In making this determination, it held the court should be guided by the context surrounding the language in question, along with the broader context of the statute as a whole. Id. Following this review, if a court finds the statutory language in question is ambiguous, it may look to the legislative history to determine Congressional intent and, if that is not apparent, then it may apply the traditional tools of statutory construction. Id.

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 While the majority applied “the familiar Chevron framework” because it was the law at the time, it nevertheless concluded: “given that the agency’s interpretation of the statute is the more persuasive one, we need not even determine whether it is entitled to deference because where an agency’s interpretation is ‘clearly right’ there ‘is no need to choose between Chevron and Skidmore [v. Swift & Co., 323 U.S. 134, 140 (1944)], or even to defer[.]’” Fowler, 58 BRBS at 6 n.7 (citations omitted). We believe the analysis and interpretation of Section 14(d) in the Board’s original decision comports with the post- Chevron statutory review enunciated in Loper Bright.

In overruling Chevron, the Supreme Court held that “[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority.” Loper Bright, 603 U.S. at 412. The reasoning focused on the Administrative Procedure Act, which instructs “‘the reviewing court’ to ‘decide all relevant questions of law’ and ‘interpret . . . statutory provisions.’” Id., at 372 (quoting 5 U.S.C. §706). This requirement, the Supreme Court held, “cannot be squared with” Chevron’s directive to accept any “permissible” construction of an ambiguous statutory provision. Id. at 371-372,

396. Even when a “statute [is] ambiguous, there is a best reading all the same,” and the
     reviewing court is required to adopt the one that, “after applying all relevant interpretive tools, [it] concludes is best.” Id., at 400. Thus, while Loper Bright mandates a court to exercise its independent judgment when considering an agency’s interpretation of an ambiguous statute, it does not require the court to disagree with the agency. In exercising independent judgment, courts may still conclude the agency has offered the best reading of an ambiguous statute. Id., at 412-413. This is precisely what the Board’s original decision did in interpreting Section 14(d). In short, the Board’s original decision ultimately reflects agreement with, rather than deference to, the Director’s “more persuasive” and “clearly right” interpretation. Fowler, 58 BRBS at 5-6.

     As stated in the Board’s original decision, while Section 14(d) of the Act is
     

     ambiguous on the question of service, it explicitly requires the employer controverting the claim to file “a notice, in accordance with a form prescribed by the Secretary.” 33 U.S.C.
     §914(d). The form prescribed by the Secretary, Form LS-207, in turn, unequivocally states: “a copy of the completed form must be mailed to the claimant and claimant’s representative” and requires the employer’s signature to verify the form was, indeed, “mailed to the claimant and claimant’s representative.” Form LS-207, https://www.dol.gov/sites/dolgov/files/owcp/dlhwc/ls-207.pdf (last visited May 28, 2025). Additionally, although Section 14(d) is silent on whether service is a component of filing, the majority observed that the implementing regulation at 20 C.F.R. §702.251, enacted in accordance with the Secretary’s authority as the administrator of the Act, 33 U.S.C.

                                           4
     

     §939(a),4 explicitly requires that “[a] copy of the notice must also be given to the claimant” and the form requires the employer to attest to having done so.5

     Moreover, the Board stated its construction of the statute and regulation comports
     

     with prior case law in which the Board held “the purpose of Section 14(d) is ‘to notify
     [both] the claimant and the [district director] that the employer disputes its liability and will not pay all claimed benefits without adversary proceedings.’” Fowler, 58 BRBS at 5 (quoting Primc v. Todd Shipyards Corp., 12 BRBS 190, 196 (1980)) (emphasis added). Recognizing the “prompt resolution” of claims is an important factor underlying the Act’s adjudicatory process, the Board further concluded, “[a]n employer’s compliance with this dual purpose – notifying the claimant and the district director – is essential to the ‘prompt resolution’ of compensation claims under the Act.” Fowler, 58 BRBS at 5 (citations excluded).

     For these reasons, the Board determined the Secretary’s interpretation of the statute
     

     is the correct one, upheld her authority to promulgate 20 C.F.R. §702.251, and concluded, “pursuant to its straightforward terms, service on the claimant is a required component of filing a notice under Section 14(d).”6 Id. at 6. The Board’s original decision, therefore, reflects the exercise of “independent judgment in deciding whether [the] agency has acted

     4 The Board’s original decision also recognized: “the Act specifies in three other

sections where the Secretary retains the specific authority to regulate how the statutory notice and filing requirements are met. See 33 U.S.C. §§912(c), 919(a), 919(b).” Fowler, 58 BRBS at 4. As such, the majority held “the Act is silent on whether the filing in Section 14(d) includes service – other than to suggest service is a process prescribed by the Secretary as it is in other sections of the Act – the regulation at Section 702.251 permissibly fills any remaining gap by specifying the notice must be served on the claimant to complete filing.” Id.
5 Thus, by signing its Form LS-207, Employer attested to serving Claimant with its

notice of controversion, but it did not actually serve it.
6 In this regard, the Board acted in a manner consistent with the Supreme Court’s

subsequent instruction in Loper Bright that “[w]hen the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits.” Loper Bright, 603 U.S. at 395; see also 33 U.S.C. §939(a).
5 within its statutory authority,”7 thus comporting with the holding in Loper Bright. Loper Bright, 603 U.S. at 412. The Board did not rely on Chevron to reach its original disposition but instead conducted a review of the pertinent statutory and regulatory provisions to independently conclude, consistent with the parameters the Supreme Court adopted in Loper Bright, that the best reading of Section 14(d) requires an employer to timely serve its N/C on both the OWCP and the claimant. Consequently, we reject Employer’s argument that Loper Bright mandates reconsideration of the Board’s initial interpretation of Section 14(d) of the Act.8

Accordingly, we grant Employer’s amended motion for reconsideration, 20 C.F.R.
§802.409, but deny its request for en banc review with oral argument, and we deny the relief requested. We remand the case to the ALJ for further consideration consistent with our initial Decision and Order.

7 The Board’s independent assessment of the Section 14(d) service issue in this case

involved review of the statute, its implementing regulation, and the underlying purposes for each. Fowler, 58 BRBS at 3-6.
8 Employer raises additional arguments with respect to Section 14(d) that are unrelated to Loper Bright. Because the Board fully considered and resolved those issues in its original decision, we decline to revisit them. Similarly, our dissenting colleague acknowledges her arguments on reconsideration repeat her arguments made on the merits. In response, we once again simply state that Section 14(d) is itself indisputably silent on whether filing includes service. The Secretary permissibly filled that silence in Section 702.251 by making service on claimants a mandatory part of filing. That reading best harmonizes the statute, regulation, and case law. And since that interpretation is the most persuasive, no more is required. Kisor v. Wilkie, 588 U.S. __, 139 S. Ct. 2400, 2415 (2019) (“If uncertainty does not exist” in interpreting a regulation implementing a silent statutory provision, then the “regulation just means what it means -- and the court must give it effect, as the court would any law.”).

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 SO ORDERED.

DANIEL T. GRESH, Chief
Administrative Appeals Judge

JONATHAN ROLFE
Administrative Appeals Judge

BOGGS, Administrative Appeals Judge, dissenting:

I agree with my colleagues’ decision to grant Employer’s motion for reconsideration in light of Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), because the case formerly was analyzed by the majority under Chevron U.S.A., Inc. v. Natural Res.’s Def. Council, Inc., 467 U.S. 837, 842 (1984). However, now as then, the majority is mistaken in its approach because the statute is clear on its face, and it dictates the results here. Accordingly (as I previously contended, and both the district director and the ALJ previously determined), because Employer complied with the statute, there is no basis for requiring it to pay additional compensation to Claimant.

In this case: Claimant filed a claim for benefits for a work-related hearing loss;
Employer received notice of the claim (from the district director) and timely paid Claimant permanent partial disability benefits, while simultaneously filing a notice of controversion (N/C) with the district director (on the prescribed form) that disputed other aspects of the claim; the district director informed Claimant of the controversion; and Claimant responded, asserting he did not receive a copy of the notice of controversion from Employer.9 On December 3, 2020, Claimant subsequently advised the district director that Employer had accepted the claim and paid benefits in full; he nevertheless asserted entitlement to an additional 10% assessment from Employer under Section 14(e) of the Longshore and Harbor Workers’ Compensation Act (LHWCA or the Act) because Employer had not sent a copy of the notice of controversion to him. Both the district director and the ALJ denied Claimant’s claim for additional payment, finding the law was clear: it did not require a copy of the notice of controversion to be sent to Claimant for Employer to avoid the 10% assessment, and thus Claimant was not entitled to receive

9 Employer asserts the electronic filing system permits parties to access documents

without having to send hard copies by mail.

7 additional payment. See Fowler, 58 BRBS at 2-3. Claimant appealed, and the original majority granted him an award.

The Statutory Language is Clear and Unambiguous on Its Face

The appropriate place to begin analysis here is with the language of the statute in question. Adams v. Dole, 927 F2d 771, 774 (4th Cir. 1991). Section 14(d) of the LHWCA states:

If the employer controverts the right to compensation he shall file with the deputy commissioner [district director]10 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 Secretary stating that the right to compensation is controverted, the name of the claimant, the name of the employer, the date of the alleged injury or death, and the grounds upon which the right to compensation is controverted.

33 U.S.C. §914(d) (emphasis added).

Section 14(e) of the LHWCA provides for a 10% assessment on an employer who does not provide full payment “unless notice is filed under [Section 14(d)].” 33 U.S.C.
§14(e) (emphasis added). This Section of the Act clearly sets out the requisite information to be contained in an employer’s notice of controversion, states it must be submitted “in accordance with a form prescribed by the Secretary,” and mandates it be filed with the district director within the specified fourteen-day period.11 33 U.S.C. §914(d). Employer,

10 The statutory responsibilities of the deputy commissioner have been reallocated by DOL to the district director and the administrative law judges. Consequently, “district director” will be substituted hereafter for “deputy commissioner,” for those functions now assumed by the district director. 20 C.F.R. §701.301(a)(7) (“district director” replaces “deputy commissioner”).
11 Though the Secretary has made a form available, neither Section 14(d) nor the form itself requires the notice of controversion to be filed on that form. Indeed, such a command would run counter to the leniency of the Act in this regard, as it is axiomatic the Act does not exalt form over substance but permits any writing which includes the requisite information to constitute the equivalent of the respective form. See, e.g., Fireman’s Fund Ins. Co. v. Bergeron, 493 F.2d 545 (5th Cir. 1974) (request for modification need not be formal in nature – it simply must be a writing which indicates an intention to seek further compensation); McKnight v. Carolina Shipping Co., 32 BRBS 165, aff’d on recon. en banc, 32 BRBS 251 (1998) (letter to district director contained requisite information and was the 8 in this case, has done precisely what the statute requires – it timely filed a notice of controversion with the district director (on the form the Secretary prescribed) - and in doing so, has precluded its liability for a Section 14(e) assessment.

The majority takes the absence of a statutory definition of “filing” as an ambiguity as to the meaning of “filing.” To the contrary, Section 14(d)’s language is clear as to what must be done, when it must be done, and with whom to avoid the Section 14(e) assessment. Consequently, there is no reason not to apply the well-established presumption that Congress says what it means and means what it says. Rotkiske v. Klemm, 589 U.S. 8, 13 (2019).12 Accordingly, to avoid imposition of the 10% assessment, it is plain that the Act

equivalent of filing a claim for compensation); Chong v. Todd Pac. Shipyards Corp., 22 BRBS 242 (1989), aff’d mem. sub nom. Chong v. Director, OWCP, 909 F.2d 1488 (9th Cir. 1990) (doctor’s report showing disability was equivalent to filing a claim); Peterson v. Columbia Marine Lines, 21 BRBS 299 (1988) (notice of injury sufficient to file a claim). Similarly, the Board has held the title of a document is not determinative of whether the employer has complied with Section 14(d).

If the document contains all the information required by Section 14(d), it is equivalent to a notice of controversion and satisfies the requirements of the statute. White v. Rock Creek Ginger Ale Co., 17 BRBS 75, 79 (1985) (notice of suspension of benefits with required information constitutes notice of controversion equivalent; “the case law has established that liability for the assessment terminates after the Department of Labor receives any mode of notice which contains the same information as a notice of controversion”) (emphasis added)); Spencer v. Baker Agricultural Co., 16 BRBS 205, 209 (1984) (“A document containing all the information required by Section 14(d) may be considered equivalent to a notice of controversion;” pre-hearing statement including Section 14(d) information is notice of controversion equivalent). As the Board has held inclusion of the information specifically required by the statute is sufficient, and the form itself need not be used, not complying with the form’s instructions cannot invoke the 10% assessment. Moreover, because the Board has held liability terminates upon the information being conveyed to the Department, liability cannot be imposed where the Department has received the requisite information.
12 “If the words of a statute are unambiguous, this first step of the interpretive inquiry

is our last.” Rotkiske, 589 U.S. at 13 (citing Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254 (1992)).

9 requires filing with the district director; it does not require sending the notice of controversion to anyone else.13

Examination of the Act as a Whole Confirms the Plain Meaning of “Filing”

An examination of the language more generally in the Act, as well as the context in which Sections 14(d) and (e) operate, confirms this plain language interpretation. A court will look into the specific context in which language was used as well as the broader context of the statute as a whole. Campbell v. McCarthy, 952 F3d 193 (4th Cir. 2020).

“Filing” Means Communicating Information Solely to an Official or Court

In the LHWCA, Congress uses the term “filing” only with respect to a notice directed to the district director or a court and then only as to a matter that may or does require formal action on the part of the district director or court. See 33 U.S.C. §§913, 914(d), 919(a), 919(b), 919(e), 921(c). This consistent usage establishes that what is contemplated by Sections 14(d) and (e) is the specific act of formally communicating (or having communicated) information to the government official or entity. Additionally, in the Act, Congress demonstrated it knew how to require that notice be given to a party or parties, as well as how to require that notice be given to a party in addition to the governmental official or official entity. See 33 U.S.C. §§912(a), 919(b), 919(e). The Act treats filing with the district director or court as distinct and apart from sending a copy to a party. 33 U.S.C. §919(e) (ALJ’s order must be filed in the office of the deputy commissioner and a copy sent to the employer and claimant); 33 U.S.C. §921(c) (“Any person adversely affected…may obtain review…by filing in such court…. A copy of such petition shall be forthwith transmitted by the clerk of the court, to the Board, and to the other parties…..”); Hamdan v. Rumsfeld, 548 U.S. 557, 578-579 (2006) (“evidence of deliberate omission” where language excluded from one statutory provision is included in another); Key Tronic Corp. v. U.S., 511 U.S. 809 (1994) (where provisions for fees were included elsewhere in a statute, absence of similar provisions in other sections of statute indicates the omissions were deliberate). Hence, because Section 14(d) requires filing only with the district director, and does not require notice to a claimant, the Section 14(e) assessment for non-compliance with Section 14(d) applies only when an employer does not file a notice of controversion with the district director. It does not apply to the situation where an employer does not send a copy of the notice to a claimant.

13 There is no apparent conflict as to the meaning of the phrase “filing with the district director” within the provisions of the statute, nor does reading “filing with the district director” to mean just what it says conflict with the purposes of the Act – and the majority has not shown to the contrary.

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 The Operation of the Act Confirms the Plain Meaning of Sections 14(d) and (e)

Examination of the operation of the statute confirms that a plain language interpretation is consistent with its structure and that the purpose of Section 14(e) is to provide an incentive for an employer to notify the Department. Under the Act, the employer’s filing triggers the involvement of and action by the Department of Labor – the Secretary and her delegates are thereafter mandated to take action based on the employer’s filing of its controversion. 33 U.S.C. §914(h). Accordingly, courts have recognized that the purpose of Section 14(e) is specifically to bring disputes to the attention of the Department. See, e.g., National Steel & Shipbuilding Co. v. U.S. Dept. of Labor [Holston], 606 F.2d 875, 880 (9th Cir. 1979) (“The 10 percent assessment for failure to file the notice acts as an incentive to induce employers to bear their burden under the Act and bring any compensation disputes to the attention of the Department.”).

In instances where an employer controverts a claim, the statute does not require the claimant to perform any additional action to trigger the Department’s involvement in the resolution of the claim. This is because, as the United States Court of Appeals for the Third Circuit has recognized:

[T]he employer bears the burden of bringing any dispute to the attention of the agency through the notice of controversion. That notice brings the administrative process into play, setting into motion the deputy commissioner’s formal claim procedures.

Universal Terminal & Stevedoring Corp. v. Parker, 587 F.2d 608, 611 (3d Cir. 1978).14 Comparison with Other Provisions Confirms No More Interpretation is Needed

14 The majority cites the Board’s decision in Primc v. Todd Shipyards Corp, 12 BRBS 190, 196 (1980), for the proposition that “the purpose of the statute is to notify both the claimant and the deputy commissioner that employer disputes its liability and will not pay all claimed benefits without adversary proceedings.” However, Primc does not require the employer to directly notify the claimant and would not accurately reflect Universal Terminal (see supra) – which is the sole authority the Primc majority cites – if direct notification of a claimant by an employer was what it meant to describe. As noted above, and contrary to the majority’s reading of the statement it quotes from Primc, courts and the Board have recognized that the notification is designed to trigger action by the district director, which could include conveying any necessary information to the claimant.

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 While Congress gave the Secretary the authority to promulgate regulations in furtherance of the administration of the Act generally, 33 U.S.C. §939(a), and the requirements for notice and filing under certain sections specifically, contrary to the majority’s opinion, “a clear distinction exists between” Sections 14(d) and (e) and those other sections, 33 U.S.C. §§912(c), 919(a), 919(b). Fowler, 58 BRBS at 7. That distinction, which arises from the wording of the specific provisions, constrains the Secretary’s authority in levying the additional assessment under Section 14(e) and confirms the correctness of applying the plain meaning interpretation of Sections 14(d) and (e).

The other specific filing and notice-related sections cited by the majority require a party to act “in accordance with regulations prescribed by the Secretary.”15 They thus provide the Secretary the opportunity to expound upon the statute. In marked contrast, Section 14(d) explicitly sets forth the information an employer is to provide, and to whom, and limits the Secretary’s role to prescribing a form for submission of that information. 33 U.S.C. §914(d) (“If the employer controverts the right to compensation he shall file with the deputy commissioner…a notice, in accordance with a form prescribed by the Secretary stating specified information [right to benefits is controverted; claimant’s name; employer’s name; date of alleged injury or death; grounds upon which right to compensation is controverted]).

“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Dean v. United States, 556 U.S. 568, 573 (2009) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)); see also Hamdan, 548 U.S. at 578-579. Because Congress provided for requirements to be set by the Secretary’s rulemaking in the other notice and filing sections, but not in Section 14(d), and because it provided only for a limited role – the creation of a form by the Secretary (containing information Congress had already specified) – in Section 14(d), it must be presumed that Congress did not intend for the Secretary to embellish upon the requirements for imposition of an assessment that Congress had already set. Comparing

15 Section 12(c) requires a claimant to give notice to both the employer and the district director but gives the Secretary the authority to issue regulations for designating the agents of an employer authorized to receive the notice. 33 U.S.C. §912(c). Section 19(a) addresses the procedure in the filing of the claim, providing the claimant must file the claim with the district director in accordance with “the regulations prescribed by the Secretary,” and Section 19(b) states the district director will notify the employer of the claim “in accordance with regulations prescribed by the Secretary.” 33 U.S.C. §919(a), (b).

12 the other notice and filing provisions with Section 14(d) makes it even clearer that there is no ambiguity in Sections 14(d) and (e), no reason to look for additional requirements or meanings, and no basis for the Secretary to reinterpret the plain meaning of the language Congress enacted. The Board has recognized this by holding no assessment applies once an employer provides the statutorily-specified information to the district director. Spencer, 16 BRBS 205, White, 17 BRBS at 78; see note 11, supra.

Further, the general authority of the Secretary granted in Section 39(a) cannot provide a basis for reinterpretation of the plain meaning of Congress’s language. Section 39(a) constitutes authorization for the Secretary, except as otherwise specifically provided, to implement the Act. Congress has been clear that the Section 14(e) assessment applies only to a failure to file with the district director, and any effort to impose an assessment for not sending a copy of the notice of controversion to the claimant would revise the law Congress wrote and create new law. Only Congress has that power. Gundy v. United States, 588 U.S. 128, 159 (2019) (“Constitution vests all federal legislative power in Congress alone”).

For argument’s sake, even if, as the majority suggests, there were “a silent statutory gap” in Section 14(d), the interpretation put forward by the Director and adopted by the majority does not pass muster. First and foremost, for the reasons set forth above, it is not the best reading of the statute. Second, as explained supra, Congress has limited the discretion of the Secretary to prescribing a form, so the substantive requirements incorporated in the form, as well as the procedural requirement as to who must receive that form for an employer to avoid paying an assessment, is limited to the best reading of the language set forth in the statute. Third, as explained infra, the position taken by the Director and adopted by the majority is not “reasoned decision-making” warranting respect.

As an initial matter, it must be recognized that the Director’s position is just a litigating position. It is not a “longstanding practice of the government,” which, by its continued use, “can inform [a court’s] determination of ‘what the law is.’” Loper Bright, 603 U.S. at 387 (citing NLRB v. Noel Canning, 573 U. S. 513, 525 (2014)) (additional citations omitted). Indeed, the Director’s position is contrary to the Department’s longstanding interpretation of the statute and regulations set forth in its Longshore and Harbor Workers’ Procedure Manual (Manual).16 As I noted in my previous dissent, the

16 All Manual references herein are to the Procedure Manual, Division of Federal

Employees, Longshore and Harbor Workers’ Compensation (DFELHWC), as posted online at dol.gov/agencies/owcp/dlhwc/lsproman/proman (last viewed May 28, 2025).

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 The Manual references 20 C.F.R. §702.251 and repeatedly states that, for purposes of avoiding a Section 14(e) assessment, an employer must submit its LS-207 (notice of controversion) or equivalent to the district office within 14 days and that thereafter a claims examiner shall send a copy of that form to the claimant and his representative within 10 days. Manual Chapter 2-0201, Para. 3.4 (“Consider Controversion of Entitlement”) (The form [LS-207] is “submitted in duplicate” to the district office and the claims examiner “sends a copy of the form to the claimant within [10] days of receipt of the form” in the district office; the Form LS-209, Request for Employee’s Reply is used to transmit the LS- 207)); Chapter 3-0301 (“Failure to Pay Installment of Compensation”), Para. 3.4 (“Check for Controversion Entitlement”) (Once the Form LS-207 is received, the claims examiner “shall send a Form LS-209 … to the claimant within [10] days”), Para. 10.4 (“Controversion by [Employer] of Informal Recommendation”) (Employer “is required to submit Form LS-207 or equivalent within fourteen days of the day of injury. If not, the
[Employer] may be subject to payment of additional compensation under section 14(e)” and “If Form LS-207 is received, copies, with Form LS-209, or by a cover letter prepared by the district office, are sent to the claimant and his/her representative within ten days of receipt of Form LS-207 or equivalent).” The Manual section relating to imposition of the Section 14(e) assessment speaks only of notification of the district director: see Chapter 8-0202 (“Late Payment: Section 14(e) Penalty”), Para. 4 (“Effect of Controversion of Claim”) (“If the claim is controverted within the time allowed by section 14(d) of the Act, the additional 10 percent is not assessed against the employer/insurer;” the “controversion notice should be submitted to the [district office] on or before the fourteenth day after the employer had knowledge of the injury or death;” the “period of assessment stops on the date the notice of controversion is filed in the [district office] or on the date an informal conference is held, whichever came first”), Para. 9 (“Period of Assessment”) (“The Benefits Review Board and the courts have held that the employer’s liability under section 14(e) does not apply to payments falling due on or after the date notice of controversion is filed in the office of the [district director] or the date of the informal conference, whichever occurs first”).

The majority suggests there is no significance to the absence of any mention that to avoid a Section 14(e) assessment/penalty, the employer must send a copy of the LS-207 or its equivalent to the claimant. According to the majority, this is the case because the Manual does not say that filing does not include notification to the claimant. However, the Manual has a purpose — to instruct DOL employees in implementing the relevant regulations and statute. Omitting information that would be essential to implementing the statute and regulations (if the majority’s contention about the statute and regulations’ interpretation were correct) would run entirely counter to the purpose and use of the Manual. Moreover, the omission of the putative requirement cannot be considered accidental because it occurs throughout the Manual. Accordingly, the majority’s argument 14
Manual states the Section 14(e) assessment does not apply once a notice of controversion is filed in the district office. Further, although numerous sections of the Manual state the employer will be subject to liability under Section 14(e) if it does not file its notice of controversion (LS-207 or equivalent) in the district office, nowhere does it indicate the

is the equivalent of the fraudster tailor’s contention that the Emperor was garbed in the finest of clothing when he was not wearing any clothing at all. As the little boy who observed the reality noted: there is nothing there.

Thus, the Manual supports the interpretation that an employer must file controversion with the district director to avoid having to pay the assessment/penalty. It does not support the interpretation that an employer must file controversion with the district director and send a copy to the claimant to avoid having to pay the assessment/penalty.

It also is significant that the agency interpretation of the statute and regulations provided by the claims examiner, who serves as the Secretary’s designee to administer and, where possible, informally resolve disputes as to claims arising under the Act, 20 C.F.R.
§§702.301, 702.311, repeatedly recognized that Section 14(d) compliance, for purposes of avoiding a Section 14(e) assessment, does not require an employer’s service of its LS-207 directly on the claimant. First, the claims examiner, on December 7, 2020, explicitly “determined that Employer/Carrier acted in compliance with Section 14(d)” as OWCP received its LS-207 on September 8, 2020, “13 days after knowledge of the injury.” CX 1 at 33. He reached this conclusion despite recognizing Employer had confirmed “that a copy of the LS-207 has been sent to [C]laimant by way of signing the form,” but it had not sent a copy of the form to Claimant. Id. Second, on December 22, 2020, the claims examiner affirmed his prior interpretation of Section 14(e) by reiterating it “cannot be applied when the claimant or claimant’s representative is not served with a notice of controversion from” the employer/carrier. Id. at 5. He stated, in “support of my position,” that “it is impossible to prove or disprove that form LS-207 was sent to claimant or his representative” and that although “the adjuster confirms a copy was sent to claimant by signing the form, this is not enforceable under [Section] 14 of the Act.” Id. He again found Employer/Carrier complied with the explicit language of Section 14(d) by filing its “notice with the district office within 14 days.” Id. Further, the claims examiner pointed out that upon OWCP’s receipt of an LS-207, a form LS-209, “is automatically generated and mailed to claimant.” He added the LS-209 informs the claimant as to the employer’s filing of its LS-207 and explains the next steps which can be taken. Primc, 12 BRBS at 196; see also Ingalls Shipbuilding, Inc. v. Director, OWCP [Fairley], 898 F.2d 1088 (5th Cir. 1990); Nat’l Steel & Shipbuilding Co. v. United States Dep’t of Labor, 606 F.2d 875 (9th Cir. 1979); Grant v. Portland Stevedoring Co., 16 BRBS 267 (1984).

15 employer will be subject to Section 14(e) liability if it does not send a copy of the LS-207 or equivalent to the claimant. (See e.g., Manual Chapter 8-0202, Para. 4).

An examination of the provisions relied upon by the Director and majority, once removed from isolation and considered in the context of their surrounding circumstances , and the Department’s longstanding interpretation and actions, does not support giving great respect to the Director’s or the majority’s current interpretation.

20 C.F.R. §702.251 is titled “Employer’s controversion of the right to compensation.” It states:

Where the employer controverts the right to compensation after notice or knowledge of the injury or death, or after receipt of a written claim, [it] must give notice thereof, stating the reasons for controverting the right to compensation, using the form prescribed by the Director. Such notice, or answer to the claim, must be filed with the district director within 14 days from the date the employer receives notice or has knowledge of the injury or death. A copy of the notice must also be given to the claimant.

20 C.F.R. §702.251.17 The sentence as to filing does not advise that filing includes notice to the claimant – it does not state the employer must file “with the district director, the claimant and his representative.” Instead, to show the need to inform the claimant, the regulation uses a separate sentence that does not specify who must undertake that task.18 Indeed, as I previously pointed out, the Department’s longstanding Manual indicates the Department of Labor, via the OWCP, bears that burden (see note 16). Further, 20 C.F.R.
§702.233, which is headed “Penalty for failure to pay without an award” states:

17 The regulation appears to restrict employers to using the form prescribed by the Director. However, as explained in note 11, supra, the Board has long held the Act does not require strict use of the prescribed forms, and any writing with the pertinent information will suffice. The form itself provides as much: “This form may be used by the employer/carrier to controvert the right to compensation.” LS-207 Form (emphasis added).
18 The LS-207 Form contains a similar passive statement: “A copy of the completed

form must be mailed to the claimant and claimant’s representative.” Interestingly, the “Privacy Statement” attached to the LS-207 Form also contains a statement that appears contradictory to the majority’s interpretation: “Completion of this form is not mandatory; however, failure to provide the information may result in additional compensation benefits payable by the employer (33 U.S.C. §914(e)). Additional disclosures of this information may be to: (1) The claimant and/or his representative….” LS-207 Form (emphasis added).

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 If any installment of compensation is not paid within 14 days after it becomes due, there shall be added…an amount equal to 10 per centum thereof which shall be paid …in addition to such installment unless the employer files notice of controversion in accordance with § 702.261[sic]….19

Consistent with the Manual and the statute, the plain language of 20 C.F.R. §702.233 states the penalty applies to a failure to file and the only filing described in Section 702.251 is a communication with the district director. Punitive provisions are to be narrowly construed. See generally Klien v. Weidner, 729 F.3d 280 (3d Cir. 2013). While the 10% assessment may be additional compensation to a claimant, it is also (as the heading of 20 C.F.R.
§702.251 recognizes) a penalty on an employer. This is evident from the fact that the additional amounts that could be assessed on an employer under 33 U.S.C. §914(e) or (f) are both styled as “additional compensation” but really act as penalties for the employer’s late action. See Burgo v. Gen. Dynamics Corp., 122 F.3d 140 (2d Cir. 1997), cert. denied, 523 U.S. 1136 (1998).20 Moreover, as the Board has held, submission of the form is optional, and instructions for the form are not binding. Accordingly, based on the language of the relevant regulations, interpretive policy, and the facts that the litigating interpretation set forth by the Director and adopted by the majority contravenes the longstanding interpretations set forth in the Manual, as well as the determinations by the responsible Departmental officials, the litigating interpretation does not merit respect. Even if the statute were ambiguous, the best interpretation would be that the assessment applies only when the employer fails to file a notice of controversion with the district director; there is no liability for a Section 14(e) assessment for not sending a copy of the notice of controversion to the claimant.

The ALJ’s Decision Should Be Affirmed

For all of these reasons, I continue to disagree with the majority’s interpretation of the unambiguous statute. Based on the clear statutory language, I would hold that to avoid the application of a Section 14(e) assessment, Section 14(d) requires only that an employer

19 20 C.F.R. §702.261 relates to “Claimant’s contest of actions taken by employer

or carrier with respect to the claim.” The provision relating to employer controversions is 20 C.F.R. §702.251.
20 There is a 10% assessment under (e) and a 20% assessment under (f), but neither

is tied to any actual injury a claimant may suffer, and any actual loss the claimant may have due to the employer’s late action is not likely to be doubly as great under the circumstances warranting payment under (f) versus those under (e).

17 timely file its notice controversion containing the requisite information with the district director. I would grant the relief requested: Employer complied with Section 14(d) and is not liable for a Section 14(e) assessment. Therefore, I would reverse the Board’s decision and affirm the ALJ’s decision denying Claimant’s entitlement to additional compensation under Section 14(e).

JUDITH S. BOGGS
Administrative Appeals Judge

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