There were several noteworthy decisions this quarter.
Fowler v. M.T.C. East dba Ports America, Inc., 2024 WL 2291326 (BRB 22-0199, 4/5/24), on recon., 2025 WL 1607539 (1/1/2025), held that an employer owed a 10% penalty if it fails to send a notice of controversion to the claimant within fourteen days of becoming aware of an injury, even if the notice is timely sent to the OWCP. On July 29, 2025 defendants appealed the Board’s decision to the 4th Circuit.
In a published decision, Liu v. American University of Afghanistan, the Board explained when, on remand, the ALJ could deviate from the Board’s instructions. When the Board remands a case, the ALJ must comply with its instructions and implement both the letter and spirit of the mandate, absent appropriate legal basis for not applying the mandate rule. Deviation from the mandate rule is permitted in a few exceptional circumstances, which include: (1) When controlling legal authority has changed dramatically; (2) When significant new evidence, not earlier obtainable in the exercise of due diligence has come to light, and (3) When a blatant error in the prior decision will, if uncorrected, resulted in a serious injustice. None of the limited exceptional circumstances existed in this case.
In Hodge v. Dee Engineering Co., under the terms of a proposed §8(i) settlement, the parties asked the ALJ to determine the amount due for attorney fees and costs at OALJ and OWCP levels. The ALJ, however, only awarded fees and costs for OALJ services. The Board agreed this was proper, citing 20 CFR §702.132(c), which, it concluded, did not give the ALJ authority to determine OWCP level fees. Some judges, in this reviewer’s experience, have been willing to approve fees and costs for both levels if there is agreement on the amount.
In another unpublished decision, Watson v. APS Stevedoring, LLC, the Board held, in a hearing loss claim, the thirty-day period to give notice began when claimant became aware of the connection between the injury and employment, rather than when the claimant became aware of the identity of the particular employer responsible for payment of compensation. Here, notice was untimely, but the claim was remanded to reconsider a finding employer was prejudiced by the delay.
Heath v. Gulf Island Fabrication, Inc., is a district court decision concerning enforcement of an order of default that assessed a 20% ($20,619.02) penalty. The court entered judgment for $20,619.02, concluding the order of default could be enforced even if, as was suggested in the decision, the district director incorrectly calculated the compensation due. Any complaints regarding the substance of the order should be addressed on appeal to the Board.
