BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION


RONALD NORBERG, Applicant

MEEHAN SEAWAY SERVICES, Employer

SECURITY INSURANCE COMPANY OF HARTFORD, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 89-009943


Pursuant to the timely petition for review filed by the applicant in the above-captioned matter, the Commission has considered the petition and all relief requested. The Commission has reviewed the applicable records and evidence and finds that the Administrative Law Judge's findings and order are supported thereby. The Commission therefore adopts the findings and order of the Administrative Law Judge as its own.

NOW, THEREFORE, the Labor and Industry Review Commission does

O R D E R

That the findings and order of the Administrative Law Judge are hereby affirmed

Dated and mailed at Madison, Wisconsin April 23, 1991
ND § 2.5

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner

MEMORANDUM OPINION

This case involves the relationship between the Wisconsin Worker's Compensation Act, Chapter 102 Wis. Stats., and the Federal Longshoremen and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. sections 901-950. The applicable law was succinctly summarized by the U.S. Supreme Court in Sun Ship, Inc. v. Pennsylvania, et al., 447 U.S. 715, 100 S. Ct. 2432, 65 L. Ed. 458 (1980):

"Before 1972 . . . marine-related injuries fell within one of three jurisdictional spheres as they moved landward. At the furthest extreme, Southern Pacific Company v. Jensen, 244 U.S. 205 (1917) commanded that nonlocal maritime injuries fall under the LHWCA. 'Maritime but local' injuries 'upon the navigable waters of the United States,', 33 U.S.C. section 903 (a), could be compensated under the LHWCA or under state law. And injuries suffered beyond navigable waters--albeit within the range of federal admiralty jurisdiction--were remedial only under state law. Nacirema Co. v. Johnson, 396 U.S. 212 (1969). In 1972, Congress superceded Nacirema Co. v. Johnson by extending the LHWCA landward beyond the shoreline of the navigable waters of the United States . . . In so doing, the Longshoremen's Act became, for the first time, a source of relief for injuries which had always been viewed as the province of state compensation law." Sun Ship, 100 S. Ct. at 2436.

There has been constant "traffic" across the frontier between state acts and the LHWCA because of differing levels of benefits provided. Before 1972, maximum benefits under the LHWCA were low compared to benefits available under state acts, and as a result of this, the traffic was made up mostly of claimants trying to get out the federal act and into a state act. Larson, Workman's Compensation (Desk Ed., 1990), section 89.23. With the 1972 amendments to the LHWCA, Congress significantly increased benefits available to levels generally exceeding those provided by state acts, and the "traffic" shifted, so that since that time most of the cases have involved employes attempting to move "seaward" from the area of exclusive state jurisdiction to the now broadened area of concurrent jurisdiction in which they may bring their claims under the LHWCA.

This case, however, involves what the Supreme Court identified as the "exceedingly rare" situation in which concurrent jurisdiction could apparently result in a more favorable award for a worker's injuries than under an exclusively federal compensation system. Sun Ship, 100 S. Ct. n. 7. (1)   Recognizing this is important, as it explains why the argument made by applicant is unpersuasive. Applicant relies significantly on an assertion that there has been a trend in the law to increase the area of concurrent jurisdiction so as to afford greater remedies to injured employes. This is true, but to use a sporting metaphor, this has occurred at the opposite end of the court from where applicant is now playing. The expansion of concurrent jurisdiction brought about by the 1972 amendments to the LHWCA and evidenced by subsequent decisions, has moved one of the boundaries of the concurrent jurisdiction zone "landward" so that more employes who would otherwise have been left exclusively to the state remedies can take advantage of it. The applicant herein finds himself at the other boundary of the concurrent jurisdiction zone, where it meets the zone of exclusive federal jurisdiction, and he would wish to see that zone of concurrent jurisdiction moved "seaward." However, the trend in the law on which applicant relies has had nothing to do with any such movement. Commenting on the 1972 amendments to the LHWCA, the Supreme Court stated, "we find no evidence that Congress was concerned about a disparity between adequate federal benefits and superior state benefits." Sun Ship, 100 S. Ct. at 2438-39.

The Commission is persuaded, as was the Administrative Law Judge, that the boundary between the concurrent jurisdiction zone and the zone of exclusive federal jurisdiction remains essentially where it has been for many years: marking the boundary between those maritime activities that are arguably "local" and those that are indisputably not "local." As applicant concedes, "local" employment is work that is not directly related to navigation or commerce. Grant Smith-Porter Ship Company v. Rohde, 257 U.S. 469, 42 S. Ct. 157, 66 L. Ed. 2d 321 (1922). Applicant's argument, that he was obviously not involved in the navigation of a ship and that his "commercial" link was no more than to physically move an object within a local space, is wholly unpersuasive. When injured, applicant was in the hold of a ship which was in navigable waters, and he was engaged in the process of loading goods into the hold of that ship. The loading and unloading of a vessel was not a task falling within the "maritime but local" exception. Employers Liability Insurance Corp. v. Cook, 281 U.S. 233, 236 (1930). Indeed, loading and unloading vessels was historically a task of the ship's crew. Seas Shipping Company v. Sieracki, 328 U.S. 85 (1946).

It is true that to some extent, the Supreme Court limited the significance of the "maritime but local" doctrine in Davis v. Dept. of Labor, 317 U.S. 249 (1942). Prior to Davis, courts struggled unsuccessfully to apply the "maritime but local" test in a consistent fashion to the myriad situations in which "maritime" merged with "nonmaritime" and "local" merged with "nonlocal" (i.e., employe on ship falls onto dock and is injured; employe on dock falls into water and is injured, etc.). In Davis, the Court acknowledged that over the course of many cases, it had simply not been possible to determine in a consistent fashion whether certain activities were "maritime but local." The Court determined that there should be a presumption that state compensation acts could constitutionally be applied concurrently with the LHWCA within a "twilight zone," of uncertain boundaries, encompassing cases in which the nature of the activity involved was difficult to classify under the "maritime but local" test.

Thus, even in some cases involving the traditionally "nonlocal" activity of loading ships, it can be found the injury falls within the "twilight zone" where concurrent jurisdiction exists, if the facts of the case are such that it is not possible to easily apply the "maritime but local" standard. An example of this is Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935 (3rd Circuit, 1990). That case involved an occupational disease suffered by a harbor worker as a result of long-term exposure to fuel and fuel fumes. The employe had suffered exposures to the fuel while engaged in loading fuel onto ships, a duty which the employe performed on the ships themselves. The court acknowledged that this type of loading activity was traditionally considered non-local and that prior to Davis, a state compensation award to a worker injured while engaged in such a task would have been impermissible. However, there was also evidence that the employe had been exposed to fuel and fuel fumes while engaged in other duties of his job which took place on land. The difficulty in apportioning relative responsibility for the occupational disease which the cumulative effects of the exposure caused, led the court to treat the case as one falling within the "twilight zone," notwithstanding its partial connection to the clearly "nonlocal" activity of loading.

In this case, however, there are no ambiguities whatsoever which would justify treating the case as falling within the "twilight zone." The entire injury occurred on board a ship in navigable waters, while the employe was engaged in loading the ship with goods. This is not the type of case in which it is difficult to apply the old "maritime but local" standard, and in which the "twilight zone" doctrine should therefore be invoked. An injury to a longshoreman occurring entirely and exclusively while the longshoreman is in the hold of a ship in navigable waters, loading goods into that ship, is clearly within the realm of the exclusive jurisdiction of the LHWCA.

cc:
Attorney Michael H. Gillick
Attorney James P. Reardon

110 : TH7826


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(1)( Back )   It is difficult to understand why this is so. The parties herein conceded that applicant's earnings on the date of injury were at or above the Wisconsin maximum wage rate of $ 507 per week; however, when the applicant received benefits under the LHWCA, he was paid at the minimum benefit rate which would imply an average weekly wage at or below $ 227 a week. While the provisions of the Wisconsin Worker's Compensation Act and the LHWCA for computation of applicable benefit rate are not identical, they are similar in that both provide for a benefit rate equal to two-thirds of an average weekly earning or wages figure, with maximums and minimums provided, and with the average weekly figure being based on an extrapolation from actual daily earnings at the time of injury. Section 102.11, 102.43, Wis. Stats., 33 U.S.C. sections 908, 910. It appears from the LHWCA compensation rate table contained in Exhibit 1 in this matter, that if applicant herein had an "average weekly wage," as that term is defined in the LHWCA, at or in excess of $ 507 as of date of injury, his LHWCA compensation rate would have been the same as or greater than the compensation rate paid under the Wisconsin Worker's Compensation Act, since the maximum wage under the LHWCA at that time was $ 605.32 per week.