Navigating Uncharted Waters: A Guide to Spotting Jurisdiction Under the Longshore and Harbor Workers Compensation Act

Navigating Uncharted Waters: A Guide to Spotting Jurisdiction Under the Longshore and Harbor Workers Compensation Act by Brent R. Eames The Illinois Workers Compensation Act (hereinafter IWCA ) compensates workers for accidental injury or death sustained in the course of employment. 1 The IWCA mandates that all Illinois employers must provide benefits to all employees, which are defined under the Act as persons in the service of another under a contract of hire. 2 However, contrary to the foregoing, pursuant to Article III, section 2 of the United States Constitution, federal courts have exclusive jurisdiction over all cases of admiralty and maritime jurisdiction. 3 As a result, if a worker is injured in Illinois while performing duties which would qualify for admiralty or maritime jurisdiction, then in spite of the express language of the IWCA, the state law would be preempted and the injured worker would not be entitled to benefits under the IWCA. Due to this conflict, Congress enacted the Longshore and Harbor Workers Compensation Act (LHWCA). LHWCA is a federal statute which was designed to provide compensation benefits to injured or deceased marine workers previously excluded from state compensation systems, including the IWCA. 4 When first passed, the LH- WCA only covered injuries occurring on the navigable waters of the United States if recovery was not available under state law. 5 However, in large part due to the LHWCA s limited ability to address newly evolving maritime jobs, Congress, in 1972, expanded the navigable waters provisions in the LHW- CA to include some land-based areas. 6 Specifically, this amendment expanded LHWCA jurisdiction to injuries occurring upon navigable waters and any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel. 7 Given the language of the LHW- CA, there are many situations in which an employee who suffered a land-based injury and seemingly should be entitled to benefits from a state compensation system could nevertheless fall under the jurisdiction of the LHWCA. The United States Supreme Court acknowledged this confusion by observing that these workers are forced into a position of making a perilous jurisdictional guess between the state system and the LHWCA before filing a claim for benefits. 8 In order to address this problem, the United States Supreme Court created the concept known as twilight zone jurisdiction. 9 Under this theory, petitioners suffering injuries occurring in the twilight zone between the land, governed by state laws, and navigable waters, governed by federal law, effectively have concurrent jurisdiction between the state system and the LHWCA. 10 Given the overlapping jurisdiction between the IWCA and LHWCA and potential for confusion which has been acknowledged by the United States Supreme Court, it is vital for a petitioner s workers compensation attorney to be able to identify situations in which LH- WCA jurisdiction would apply and be able to spot the potential for concurrent jurisdiction. This article will begin by analyzing the two-part test for determining whether an injured worker in Illinois qualifies for benefits under the LHWCA. Then this article will examine the concept of twilight zone jurisdiction as applied to injured workers in Illinois to provide guidance for spotting cases where concurrent jurisdiction will exist between the IWCA and the LHWCA. I. Qualifying for Benefits Under the LHWCA In order to qualify for benefits under the LHWCA, an injured worker must meet a two-part status and situs test. 11 The status test analyzes whether the injured employee was engaged in maritime employment at the time of their injury. 12 The situs test analyzes whether the employee was working on either the navigable waters of the United States or any other land-based locations neighboring the navigable waters at the time of injury. 13 Only if both criteria are satisfied will an injured worker be eligible for LHWCA benefits. A. The Status Test The status test focuses on the duties of the injured employee. 14 Specifically, the status test analyzes whether the injured employee was engaged in maritime employment as was contemplated by the LHWCA, as opposed to a normal employee with no connection to maritime employment who just happened to suffer an injury concerning navigable waters. Any analysis of the status test should begin with the language of the LHWCA itself, which defines an employee as, any person engaged in maritime employment, including any longshoreman or navigating uncharted continued on page 34 32 Trial Journal Volume 16, Number 2 Summer 2014

We take pride in understanding the needs of our customers. Contact us today to learn more about our business services and how we can help you make. www.fstsb Volume 16, Number 2 Summer 2014 Trial Journal 33

navigating uncharted continued from page 32 other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker. 15 Based upon this express language of the LHWCA, it is clear longshoremen, 16 ship repairmen, 17 shipbuilders, 18 and ship-breakers 19 all qualify as employees under the LHWCA and thus pass the status test in order to qualify for benefits under the LHWCA. However, the Supreme Court has recognized that the LHWCA does not enumerate all possible categories of maritime employment, and an employee may still pass the status test if their employment is not specifically enumerated under the LHWCA if said employment falls within the general category of maritime employment. 20 The inquiry of what qualifies as maritime employment is made difficult by the failure of Congress to define maritime employment, longshoremen, or longshoring operations in either the text of the Act or its legislative history. 21 The Congressional Record notes the lack of the definition of maritime employment and further acknowledged the difficulties this created: without firm direction from Congress, courts must continue to grapple with defining the parameters of maritime employment... and the Supreme Court will have to resolve these conflicts. 22 As a result of the lack of direction from Congress, determining whether an employee qualifies as being engaged in maritime employment must be determined by relying upon court precedent on a case-by-case basis. The first and most important point when analyzing whether an employee is engaged in maritime employment is that a claimant need not be engaged in maritime employment at the precise time of the injury to be covered under the LHWCA. 23 The Supreme Court has recognized that in its desire for uniformity of coverage, the LHWCA focusses on occupation, rather than duties at the time of injury, and it was not the intent of Congress that a claimant walk in and out of coverage during a day s work. 24 Thus, the relevant inquiry is the employee s occupation as opposed to activity at the precise time of injury. In analyzing what occupations qualify for maritime employment, the Supreme Court has adopted a working definition of maritime employment as any employee who facilitated in the movement of cargo between a ship and land transportation, or vice versa. 25 The Supreme Court has held that persons moving cargo directly from ship to land transportation are engaged in maritime employment, and a worker responsible for some portion of that activity is as much an integral part of the process of loading or unloading a ship as a person who participates in the entire process. 26 Additionally, the Supreme Court has held that workers who do not actually load or unload cargo, but are engaged in activity that is an integral or essential part of loading or unloading a vessel, are nevertheless covered under the LHWCA. 27 In Chesapeake & Ohio Railway Co. v. Schwalb, 493 U.S. 40 (1989), the Supreme Court found that There is an escalating demand for presettlement loans in Chicago and Oasis is excited to recognize our Chicago director! Led by Paige Winkels, Oasis continues to provide faster and more personal service to your clients. We look forward to strengthening current relationships and establishing new ones with attorneys around the Chicagoland area. Oasis thanks the Illinois Trial Lawyers Association for our continuous sponsorship and affiliation with such an excellent organization. Contact the Illinois Funding Team at the number listed below. Paige Winkels Illinois Director, Legal Funding 847.521.4446 Local Office pwinkels@oasislegal.com www.oasislegal.com Additional Offices Miami I New York City I Atlanta I St. Louis I Dallas I Orlando Oasis provides loans in Illinois 34 Trial Journal Volume 16, Number 2 Summer 2014

workers who were injured while performing housekeeping and janitorial services on a vessel passed the status test and qualified for benefits under the LHWCA. 28 The Court reasoned that maintaining and repairing equipment is necessary to keep machines operating properly and is only a degree removed from repair work. 29 Lastly, it is important to note that the LHWCA applies to any person engaged in maritime employment and does not distinguish between management personnel and workers. 30 The United States Court of Appeals for the 11th Circuit addressed the issue of whether a labor relations assistant, who performed only office work, passed the status test. 31 In holding in the affirmative, the court emphasized that the employee s responsibilities were significantly related to, and directly furthered, the employer s ongoing shipbuilding and ship repair operations. 32 The court further noted that whether job skills are uniquely maritime is not dispositive in determining whether the status test is satisfied, and the proper focus is on whether the employee s job directly relates to furthering the shipyard concerns of a covered employer. 33 Based upon the foregoing case precedent, it is crystal clear that any injured worker who actually works on a vessel or participates in any portion of the process of loading and unloading cargo from a vessel should satisfy the status test. Further, any worker whose essential job functions directly relate to the furthering of shipyard concerns should also satisfy the status test. Given this precedent, it is obvious that reviewing courts have adopted a liberal approach in determining whether an injured worker satisfies the status test for purposes of qualifying for jurisdiction under the LHWCA, and practitioners should likewise adopt a liberal approach when analyzing whether an injured worker passes the status test. B. The Situs Test While the status test focuses on the injured worker, the situs test focuses on the location of the injury. The LH- WCA defines its jurisdiction to include navigable waters and any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel. 34 Due to the fact the LHWCA expressly limits itself to injuries occurring upon and adjoining the navigable waters of the United States, 35 the first and most important question when addressing the situs test is what qualifies as navigable waters for purposes of the LHWCA? Although the term navigable waters is not defined under the LHW- CA, 36 the United States Supreme Court has recognized that the suitability of a waterway for interstate commerce, i.e., navigability in fact, is a crucial factor when determining general maritime jurisdiction. 37 Thus, reviewing federal courts have come to recognize that in order to qualify as navigable waters under the LHWCA, the waterway in question must be capable, by itself, or by uniting with other waters, of serving as a continued highway for interstate navigating uncharted continued on page 36 Bolingbrook Chiropractic And Spine Injury Center Dr. Jeffrey Garofalo 11335 Lily Cache Ln Bolingbrook, Il 60490 phone (630) 226 9922 fax (630)226 9912 CV available upon request We understand how to clinically correlate causality, bodily injury, and persistent functional loss. We specialize in triaging the injured with a team of pain management doctors, neurologists and neurosurgeons. We are trained in reading our own MRI s and differentiating herniatedfrom bulging discs including age dating the herniation. We defend against the defense rhetoric with evidence- based research including pre-existing arthritis claims. We accept and work on a lien basis. If you want your clients to be treated well and are looking for a doctor who truly understands your needs call us at (630)226-9922. Volume 16, Number 2 Summer 2014 Trial Journal 35

navigating uncharted continued from page 36 commerce. 38 As a result of the requirement for a waterway to serve as a continued highway for interstate commerce, any body of water which is located exclusively within the state should not qualify as navigable water for the purpose of triggering LHWCA jurisdiction. 39 An instructive example of this rule is the popular Lake of the Ozarks, which is found in our neighboring state of Missouri. In Three Boys Houseboat Vacations U.S.A., Ltd. v. Morts, the United States Court of Appeals for the 8th Circuit analyzed whether the Lake of the Ozarks, which because of a dam is located entirely within the State of Missouri, qualified as a navigable waterway for the purpose of triggering LHWCA jurisdiction. 40 In holding that Lake of the Ozarks was not a navigable waterway and therefore LHWCA jurisdiction did not apply, the court focused on the fact that the lake cannot be negotiated past the dam, and due to the fact that purely intrastate shipping can be maintained on the lake, it did not qualify as a navigable waterway for interstate com- merce. 41 Given the requirement for a continued highway for interstate commerce, the possibility exists that certain portions of a body of water may be considered a navigable waterway and thus trigger LHWCA jurisdiction, while other portions of that same body of water may not. 42 This was precisely the issue that the United States Court of Appeals for the 7th Circuit analyzed in Weaver v. Hollywood Casino-Aurora, Inc. 43 In Weaver, the court was confronted with the question of whether an injured employee of a riverboat casino in Aurora, Illinois, which was situated on the Fox River qualified for benefits under the LHWCA. 44 In analyzing the issue, the court noted that the fact that the Fox River as a whole was stipulated to be a navigable waterway was not dispositive for purposes of maritime law. 45 The court concluded that a dam and bridge located 300 yards from the riverboat presumably made that area of the Fox River not susceptible to commercial shipping, and thus this particular portion of the Fox River would fail the test for qualifying as a navigable waterway. 46 Once you are able to determine whether you are dealing with a navigable waterway, the next part of the situs test to consider is precisely where your client s injury occurred relative to the navigable waterway. Once again, the language of the LHWCA is left open-ended to include any adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel. 47 Due to the fact that there is no bright line rule for how far LHWCA jurisdiction can reach onto land, 48 reviewing courts have come to interpret the LHWCA to require that jurisdiction will attach so long as the site is close to or in the vicinity of navigable waters, or in a neighboring area. 49 This neighboring area need not be contiguous to navigable water in order to fall under LH- WCA jurisdiction. 50 However, a nexus with the waterfront is a crucial factor to consider. 51 There are logical limits to the reach of the LHWCA onto land. For example, the United States Court of Appeals for the 4th Circuit addressed the 36 Trial Journal Volume 16, Number 2 Summer 2014

question of whether a claimant who was injured when he was struck by an automobile while returning from a restaurant located approximately 1.5 miles from his employer s terminal qualified for LHWCA benefits. 52 Ultimately, given the distance from the waterfront and given the lack of nexus of the location of the injury with the waterfront, the court determined that the employee failed the situs test and thus did not qualify for benefits under the LHWCA. 53 II. Spotting Concurrent Jurisdiction Between the IWCA and the LHW- CA If your injured worker seemingly passes the status test and the situs test, and thus should qualify for benefits under the LHWCA, your inquiry should not end there. The United States Supreme Court has acknowledged that the LHWCA was never intended to supplant state compensation programs, but was instead designed to merely supplement state programs. 54 Furthermore, the Supreme Court explicitly stated that state regulation of worker injuries is even more appropriate onshore than it is upon navigable waters. 55 As a result, in cases where the jurisdiction of the LHWCA floods into the jurisdiction of IWCA, the concept of twilight zone jurisdiction may kick in resulting in the possibility of a viable claim under both the LHWCA and the IWCA. Twilight zone jurisdiction was first recognized by the United States Supreme Court in Davis v. Department of Labor & Industries of Washington. In Davis, a steelworker drowned in navigable waters after falling off of a barge. 56 The Supreme Court recognized that the decedent s death occupied a shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation. 57 Being unable to develop any bright-line test, the Supreme Court created the twilight zone, under which cases where the proper jurisdiction is doubtful would fall under the proper jurisdiction of both the federal and state compensation systems. 58 As with most areas concerning the LHWCA, the parameters of the twilight zone are recognized to be not well defined. 59 However, in analyzing the issue of twilight zone jurisdiction, the Illinois Appellate Court has adopted a very restrictive approach. The Illinois Appellate Court has focused on the United States Supreme Court s use of the term doubtful when analyzing the possibility of twilight zone jurisdiction. 60 The court has held that in situations where maritime employees who are performing traditional maritime functions are injured over navigable waters, there is no doubt that the proper jurisdiction would fall under the LH- WCA, and thus, the concept of twilight zone jurisdiction will be inapplicable. 61 This reasoning was recently upheld in Uphold v. Illinois Workers Compensation Commission. In Uphold, the petitioner was repairing a vessel which was docked to a pier floating on the Mississippi River when he was injured. 62 In holding that there was no twilight zone jurisdiction and that the LHWCA was navigating uncharted continued on page 38 Volume 16, Number 2 Summer 2014 Trial Journal 37

navigating uncharted continued from page 37 the exclusive remedy for the petitioner, the court reasoned that the case lacked any doubt regarding the jurisdiction of the LHWCA due to the fact that the petitioner was a maritime employee who was performing traditional maritime functions over navigable waters. 63 Based upon the court s ruling in Uphold, it is clear that Illinois courts will not apply the concept of twilight zone jurisdiction in cases where an otherwise valid LHWCA claim occurs over navigable waters. Rather, twilight zone jurisdiction will only apply in cases where an otherwise valid LHWCA claim occurs on land, thereby raising some doubt and confusion over the proper jurisdiction for the injured worker. However, given the appellate court s reliance on the term doubtful in Uphold, one should proceed with extreme caution in the event one elects to proceed with a potential twilight zone claim solely under the ILWCA. Given the appellate court s reasoning in Uphold, any land-based claim which would obviously fall under the jurisdiction of the LHWCA, such as an otherwise valid LHWCA claim occurring on an adjoining pier, wharf, or dry dock, should also be found to not qualify for twilight zone jurisdiction. III. Conclusion Just like the tide rises and falls, so too can the jurisdiction of the LH- WCA. Reviewing federal courts have clearly adopted a liberal approach when interpreting the reach of the LHWCA, so that just about any employee whose essential job functions directly relate to the furthering of shipyard concerns and who gets injured in the vicinity of a navigable waterfront should qualify for jurisdiction under the LHWCA. Contrarily, the Illinois Appellate Court has adopted a restrictive approach when analyzing the issue of concurrent jurisdiction, severely limiting the jurisdiction of the IWCA unless the jurisdiction of the LHWCA is determined to be doubtful. Based upon the federal and state court precedent, practitioners in Illinois must proceed with extreme caution whenever handling a claim involving a maritime worker or a claim involving an injury occurring in the vicinity of a navigable waterfront, or you could find yourself on the wrong side of a perilous jurisdictional guess as warned by the Supreme Court. Endnotes 1 820 ILCS 305/1 et seq. 2 820 ILCS 305/1(b)(1). 3 U.S. Const. art. III, sec. 2. 4 Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 717 (1980). 5 at 517-18. 6 at 720. 7 33 U.S.C. 903(a) (1996). 8 United States Department of Labor v. Perini North River Associates, 459 U.S. 297, 307 (1983). 9 Davis v. Department of Labor & Industries of Washington, 317 U.S. 249 (1942) 10 Davis, 432 U.S. at 253. 11 See, e.g., Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 265, 280 (1977). 38 Trial Journal Volume 16, Number 2 Summer 2014

12 Caputo, 432 U.S. at 265-66. 13 at 279. 14 P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979). 15 33 U.S.C. 902(3) (1996). 16 17 18 19 20 P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979). 21 Northeast Marine Terminal v. Caputo, 432 U.S. 249 (1977). 22 Cong. Rec. S11623 Spet.20, 1984. 23 Northeast Marine Terminal, 432 U.S. at 266. 24 at 266 n.27. 25 P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979). 26 P.C. Pfeiffer Co. v. Ford, 444 U.S. 69 (1979). 27 Chesapeake & Ohio Railway Co. v. Schwalb, 493 U.S. 40 (1989). 28 Chesapeake & Ohio Railway Co., 493 U.S. at 47. 29 30 Sanders v. Alabama Dry Dock & Shipbuilding Co., 841 F.2d 1085 (11th Cir. 1988). 31 32 33 34 33 U.S.C. 903(a) (1996). 35 33 U.S.C. 903(a) (1996). 36 33 U.S.C. 902 (1996). 37 The Daniel Ball, 77 U.S. 557 (1870) 38 Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379 (7th Cir. 2001). 39 Three Buoys Houseboat Vacations U.S.A., Ltd. v. Morts, 921 F.2d 775, 779 (8th Cir. 1990). 40 Three Buoys Houseboat Vacations U.S.A., Ltd., 921 F.2d at 777. 41 at 779. 42 LeBlanc v. Cleveland, 1998 F.3d 353 (2nd Cir. 1999). 43 Weaver v. Hollywood Casino-Aurora, Inc., 255 F.3d 379 (7th Cir. 2001). 44 Weaver, 255 F.3d at 379. 45 46 47 33 U.S.C. 903(a) (1996). 48 Texports Stevedore Co., v. Winchester, 632 F.2d 504 (5th Cir. 1980). 49 Texports Stevedore Co., 632 F.2d at 513-514. 50 51 52 Humphries v. Director, OWCP, 834 F.2d 372 (4th Cir. 1987). 53 54 Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 720-22 (1980). 55 Sun Ship, Inc. 447 U.S. at 720. 56 Davis, 432 U.S. at 253 (1942). 57 at 253. 58 at 255-258. 59 Uphold v. Illinois Workers Compensation Commission, 385 Ill.App.3d. 567 (5th Dist. 2005). 60 Wells v. Industrial Com n, 277 Ill. App.3d 379 (1st Dist. 1995). 61 62 Uphold, 385 Ill.App.3d. at 569 (5th Dist. 2005). 63 Brent R. Eames is an associate trial attorney for Whiteside & Goldberg, Ltd. in Chicago, Illinois. His practice focuses exclusively on representing injured victims, including all forms of personal injury and workers compensation litigation, as well as claims under the Longshore and Harbor Workers Compensation Act. He has been recognized as a Rising Star by Super Lawyers Magazine and he currently serves as the First Vice-President of the NIU College of Law Alumni Council. HOW CAN YOU GET INVOLVED IN ITLA? Take advantage of the many membership benefi ts included with your ITLA membership. - EDUCATION - Educational CLE Programs - As an accredited MCLE provider, ITLA offers the most comprehensive civil educational programs in the state. Members receive reduced rates for 9 seminars annually. Educational Materials - Our course handbooks and CDs offer you legal education advancement at your home or offi ce, AND you have the opportunity to receive MCLE credit when you purchase and listen to seminar CD s. Notebooks for Trial - The Workers Compensation Notebook and the Medical Malpractice Trial Notebook are updated annually with the latest information. They are indexed, easy to read and save you hours of research time. Bonus: Now you can order the notebooks on CD. Load this on your laptop or ipad to take with you to the courthouse. Volume 16, Number 2 Summer 2014 Trial Journal 39