The Employer Filed The Right Form. Then It Forgot To Tell The Injured Worker. That Cost Them

The TV lawyer on the billboard cannot find the longshore courthouse. He does not know what a notice of controversion is. He does not know the Longshore Act has a penalty provision that puts ten percent more money in an injured worker’s pocket when the employer breaks the rules. He does not know because he has never worked a longshore case in his life. He has a secretary and a billboard, and that is the entire operation. A real case decided by the Benefits Review Board, one that went all the way to an en banc reconsideration motion after the Supreme Court overturned forty years of administrative law, shows you how much money sits in the procedural rules the TV lawyer never reads.

In Fowler v. M.T.C. East d/b/a Ports America, decided by the U.S. Department of Labor Benefits Review Board, a longshore worker filed a hearing loss claim. The employer controverted the claim, meaning it disputed liability and was not going to pay without a fight. Under the Longshore Act, when an employer controversts a claim, it has fourteen days to file a notice of controversion with the district director. The employer did that. What the employer did not do was send a copy of that notice directly to the claimant. The claimant only found out the employer was fighting him when the district director told him, after the fourteen days had already run.

That failure to serve the claimant directly triggered Section 14(e) of the Act, which imposes a ten percent additional compensation assessment on the employer as a penalty. The employer argued it only had to file with the district director, not serve the claimant. The Board held the employer wrong. The form the employer signs when it files the notice of controversion, Form LS-207, says right on it that a copy must be mailed to the claimant and the claimant’s representative, and the employer signs to verify it actually did so. This employer signed the form attesting to service. Then it did not actually serve. The Board held service on the claimant is a required component of filing, and the ten percent assessment stands.

Why The Employer Tried To Kill This With A Supreme Court Case

The employer did not give up. It filed a motion for reconsideration arguing that the Supreme Court’s decision in Loper Bright, which overturned the forty-year-old Chevron doctrine and ended automatic deference to federal agencies’ interpretations of ambiguous statutes, should wipe out the Board’s ruling. The employer’s theory was that the Board had only ruled against it by deferring to the Labor Department’s interpretation of the statute, and without Chevron deference, that interpretation had to fall.

The Board held Loper Bright changed nothing here. The Board had not relied on Chevron in the first place. It had independently read the statute and the form and concluded the agency’s interpretation was simply the correct one. Loper Bright says courts must exercise independent judgment on statutory questions. The Board did exactly that and reached the same answer. The employer’s motion was denied. The ten percent assessment stayed.

What The Longshore Act Gives You That The TV Lawyer Never Tells You About

The Fowler case is a small case about a procedural rule. But that procedural rule put real money on the table. Ten percent additional compensation does not sound dramatic until you run the math against a longshore worker’s average weekly wage over a period of disability. These are the kinds of levers inside the Longshore Act that exist specifically to force employers to follow the rules and deal fairly with injured workers. An employer that games the process pays a penalty. An employer that drags out a legitimate claim pays interest. An employer that refuses to pay compensation that is clearly owed faces additional assessments.

None of those tools exist if your lawyer does not know the Longshore Act well enough to spot when the employer broke the rules. The billboard lawyer will not catch it. He has never read the Act. He has never seen Form LS-207. He is not going to notice that his client was never served with the notice of controversion, or know what that means, or know that a federal penalty provision was just triggered. He is going to wait for a settlement offer and take his percentage of whatever the insurance company decides to offer.

I am not going to lay out on a public blog every penalty and assessment provision in the Longshore Act and exactly when each one fires. I put the information that protects injured workers and the traps that cost them money in my free book. If you were hurt working on the docks or as a contractor and you want to understand what the law actually gives you, read the book before you talk to anyone.

No pressure. No phone call required. Read it first.

If you were hurt working on the water or as a contractor on the Mississippi Gulf Coast, you can read more about how I handle a Mississippi longshore case. Gulfport longshore and port workers can also read about how I handle a Gulfport longshore case specifically. The case discussed here is Fowler v. M.T.C. East d/b/a Ports America, Inc., BRB No. 22-0199, decided by the U.S. Department of Labor Benefits Review Board. This article is commentary on a published administrative decision and general information, not legal advice about your situation.