490
Blackmun, J., dissenting
of whether the employer or the employer's insurer has made payments or acknowledged entitlement to benefits under this Act."
In Dorsey v. Cooper Stevedoring Co., 18 BRBS 25 (1986), appeal dism'd sub nom. Cooper Stevedoring Co. v. Director, Office of Workers' Comp. Programs, U. S. Dept. of Labor, 826 F. 2d 1011 (CA11 1987), the Board rejected an employer's argument that the final clause of the new § 33(g)(2) should be understood as overturning the O'Leary rule that no duty to obtain approval arises until the employer begins to pay compensation. Subsection (g)(1), the Board stated, reen-acted the prior version of § 33(g) as it was interpreted in O'Leary; the new subsection, (g)(2), was intended to apply to situations not covered by (g)(1) or O'Leary. In these situations—where the employer has neither paid compensation nor acknowledged liability—notice, but not written approval, is required. 18 BRBS, at 29-30. The Board interpreted the final clause of (g)(2)—language that echoes the Board's words in O'Leary—to make clear that the notification requirement, described in (g)(2), was not subject to the O'Leary limitation that is incorporated in (g)(1). 18 BRBS, at 29.
This interpretation is reinforced, the Board continued, by two other considerations. First, although in a number of instances the 1984 legislative history indicates a congressional intention to override other BRB and judicial decisions, that history "indicates no congressional intent to overrule O'Leary." Id., at 30. Second, the Board observed, this Court has held that the LHWCA "should be construed in order to further its purpose of compensating longshoremen and harbor workers 'and in a way which avoids harsh and incongruous results.' " Id., at 31, quoting Voris v. Eikel, 346 U. S. 328, 333 (1953), and citing Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 268 (1977). As O'Leary made clear, allowing employers to escape all LHWCA liability by withholding approval from any settlement, while refusing to
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