ISSUE: Future Landmark Cases- Hearing Loss

Recently I’ve discussed issues arising under the Longshore Act that present conflicts among the federal circuit courts of appeal or other uncertainties.  These issues would benefit from a resolution at the U.S. Supreme Court.  These discussions have included issues such as concurrent jurisdiction, the interpretation of the term “adjoining” in section 3(a) of the Longshore Act, and the extent of Longshore Act coverage on the high seas and foreign territorial waters.

I’m going to discuss hearing loss claims now.  I know that the problems associated with these claims are more suited to correction by legislative amendment, but the state of the jurisprudence at present, through such judicial doctrines as the “Aggravation Rule” and the “Last Employer Rule” (and its more pernicious variant the “Last Maritime Employer Rule”) has maritime employers paying for, 1) Longshore Act benefits for pre-employment/non-work related hearing loss, 2) post employment/non-work related hearing loss, 3) post employment injurious exposure with other employers, and 4) hearing loss claims filed sometimes decades after the last alleged maritime exposure.

Hearing loss is an area where the maritime employer, under the theory of workers’ compensation entitlement, is paying for the effects of non-maritime exposure, non-work related conditions, aging, and generally life’s wear and tear.

This will be brief.  I don’t expect change any time soon, and it may well be hopeless, but I can’t resist.

First, some points with regard to hearing loss claims, which under the Longshore Act in some ways are treated as occupational disease cases and in other ways are treated as traumatic injury cases.

Legally, hearing loss under the Longshore Act is not an “occupational disease”.  It is compensated under Section 8(c)(13) of the schedule.  It is a traumatic injury in that the harm occurs immediately upon exposure.

Hearing loss is treated as an occupational disease for the identification of the responsible employer under the Aggravation Rule.

The date of injury in a hearing loss claim is the date of last exposure, which is when the average weekly wage and responsible employer are established.

BUT, the Sections 12 and 13 notice and claim filing timeliness requirements do not begin to run until the claimant has actual receipt of an audiogram and accompanying report which shows a hearing loss AND the claimant must be aware of the relationship between his work and his hearing loss.

I’m now going to list a few cases which illustrate the kinds of results that are typical in hearing loss cases. This list is representational and by no means comprehensive.  Following this list I will offer my futile suggestions for how the courts can return some semblance of fairness for the maritime employer in meeting his responsibility for compensating work related hearing loss.

Worthington v. Newport News Shipbuilding and Dry Dock Co., 18 BRBS 200 (1986) – the employer is liable for the entire binaural hearing loss where the left ear loss is due to noise exposure and the right ear loss is due to a birth defect.

Morgan v. General Dynamics Corp., 15 BRBS 107 (1982) – the claimant is entitled to compensation for his entire hearing loss where he had pre-existing non-work related hearing loss in his right ear due to Meniere’s disease, which was aggravated by work related acoustic trauma.

Primc v. Todd Shipyards Corp., 12 BRBS 190 (1980) – a claimant with a 100% hearing loss in one ear that preexisted his employment is entitled to compensation for his entire binaural impairment.

Robinson v. Bethlehem Steel Corp., 3 BRBS 495 (1976) – the BRB holds that the administrative law judge (ALJ) erred in apportioning the claimant’s hearing loss to discount the natural effects of aging.

Dubar v. Bath Iron Works Corp., 25 BRBS 5 (1991) – the BRB holds that the ALJ acted within his discretion in awarding the claimant benefits based on evidence reflecting the extent of his hearing loss in 1988 even though the claimant last worked at a covered situs in 1971.

Labbe v. Bath Iron Works Corp., 24 BRBS 159 (1991) – the claimant worked in covered maritime employment from 1941 to 1963 and in non-covered employment from 1963 until he voluntarily retired in 1979.  He was awarded benefits for work related hearing loss against the maritime employer based on an October 1986 audiogram.  The BRB states that the “… claimant need not recreate the precise extent of his hearing loss at the date covered Longshore employment terminated.”

Steevens v. Umpqua River Navigation, 35 BRBS 129 (2001) – with his last covered employment in 1975, the claimant was entitled to hearing loss benefits for the totality of his hearing loss based on two audiograms from 1998.

So the basic problem is that the maritime employer is often liable for the employee’s entire hearing loss even though some (or most) of the loss was not sustained while he worked for that maritime employer.  The maritime employer is paying for hearing loss due to many non-occupational causes such as aging and disease, as well as for non maritime workplace exposure.

The solution is simple.  Ask the courts to remove non-occupational factors and to apportion liability to assign responsibility to each employer according to actual injurious exposure.  Courts are capable of apportioning comparative liability in many other contexts.

Not so simple.  This simple solution runs counter to longstanding and well entrenched judicial doctrines designed to be equitable and for the benefit of judicial economy.  Equity has not been achieved.

Change is extremely unlikely.  I don’t want to continue to belabor the issue.  But put it on the wish list.




John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

ISSUE: Future Landmark Cases- High Seas, Foreign Waters

We observed last time that the issues involved in the “concurrent” jurisdiction question included the competing concepts of individual state police powers versus the need for uniform federal maritime jurisdiction.

The high seas/foreign waters issue with regard to Longshore Act coverage also involves the limits and extent of federal maritime or admiralty jurisdiction, except that here we’re looking outward rather than inward at the states.

Leaving aside questions of due process (jurisdiction over the parties) and convenient forum, a primary question is whether the overseas coverage of the Longshore Act should be coextensive with federal maritime statutes such as the Jones Act and the Death on the High Seas Act (DOHSA).  This question arises quite often as U.S. employers send their workers beyond U.S. territorial waters on to the high seas and to other countries to do work that meets maritime “status” for coverage under the Longshore Act.

We do not have an actual circuit conflict on this question, but that’s because only one circuit has given a clear answer on the question of Longshore Act coverage in foreign territorial waters.  We do, however, have uncertainty.

Here’s a brief survey of where we stand right now:

Cove Tankers Corp. v. United Ship Repair Inc., 683 F.2nd 38 (2nd Cir. 1982) – two ship repairmen injured when a boiler exploded on a voyage from New York to Philadelphia when the vessel had deviated 135 miles offshore.  The federal Second Circuit Court of Appeals held that the Longshore Act covered the injuries.

Reynolds v. Ingalls Shipbuilding Division, Litton Systems, Inc., 788 F.2nd 264 (5th Cir.), cert. denied, 479 U.S. 885 (1986) – injury occurring beyond state territorial waters (14 miles offshore)  during sea trials held covered by the Longshore Act.

Kollias v. D & G. Marine Maintenance, 29 F.3rd 67 (2nd Cir. 1994), cert. denied 513 U.S. 1146 (1998) – the Second Circuit held that Section 39(b) of the Longshore Act (33 U.S.C. 939(b)) indicates Congressional intent to cover the high seas under the Longshore Act.  The court notes that this statutory reference to “the high seas” overcomes the general presumption against extraterritorial application of U.S. statutes.  The Longshore Act was applied to this case where the injury occurred 200 miles offshore.

Weber v. S.C. Loveland Co., 28 BRBS 321 (1994) – this decision by the U.S. Department of Labor’s Benefits Review Board (BRB) applies the Longshore Act to an injury that occurred in the port of Kingston, Jamaica.  The BRB, citing foreign application of  the Jones Act and the DOHSA, based its decision on, “… the trend in admiralty law to extend coverage into foreign waters to provide uniform coverage for American workers, especially when all contact except for the site of the injury, are with the U.S.”

Keller Foundation/Case Foundation v. Tracy, 696 F.3rd 835 (9th Cir. 2012), cert. denied 133 S. Ct. 2825 (2013). – the Ninth Circuit held that the Longshore Act applies on the high seas, but that the foreign territorial waters and their adjoining ports and shore based areas are not the “navigable waters of the United States”.  The Ninth Circuit cited the strong presumption that Acts of Congress do not apply extraterritorially absent a clear statutory indication, and unlike the Second Circuit it did not find this clear indication in the Longshore Act.

So, does the Longshore Act cover an American citizen injured on the high seas or in foreign territorial waters in the course of his maritime employment?

We seem to have consistent agreement (2nd Circuit, 5th Circuit, 9th Circuit, and the BRB) that the Longshore Act applies on the high seas, at least when the employee is on the high seas situs temporarily and all other contacts of his employment are with the U.S.  And in the process of deciding its high seas cases the Second Circuit in Kollias indicated that it sees no problem with extraterritorial application of the Longshore Act.  The court cited the statement in section 39(b) authorizing the Department of Labor to establish compensation districts for injuries occurring on the high seas.

But we have uncertainty if the injury occurs in the territorial waters or adjoining land areas of a foreign country if your case is going to end up on appeal anywhere but in the Ninth Circuit.

If your case is going to end up on appeal in the Ninth Circuit, then the answer seems to be clear.  The Longshore Act does not apply in foreign waters.

NOTE:  What federal circuit your appeal ends up in is based on the place where the injury occurred.

What about everywhere else outside of the Ninth Circuit’s jurisdiction?

The last word from the BRB (in Weber) was that, subject to a few conditions, the Longshore Act applies in foreign waters.  No federal circuit other than the Ninth has decided this question, and as we saw that circuit held to the contrary in Tracy.

What will happen when the next case involving an injury occurring in foreign territorial waters arises outside of the Ninth Circuit?  Will the BRB follow its own precedent in Weber or will it adopt the reasoning of the Ninth Circuit?  Will other circuits, such as the Second and the Fifth, follow the reasoning indicated in their high seas cases and apply the Longshore Act, or will they adopt the reasoning of the Ninth Circuit?

It does seem to be a stretch to include foreign territorial waters in the definition of “navigable waters of the united States”.  On the other hand, there is the concept of uniform coverage for American workers temporarily overseas for maritime work that has to be considered.  And the BRB cited the Jones Act and the DOHSA, which have been applied in foreign waters.  The BRB sees this as indicating a trend that U.S. maritime law will follow American workers overseas.

At any rate, maritime employers need a uniform answer on the issue of the application of the Longshore Act in foreign territorial waters.  As seen above, the U.S. Supreme Court has declined to review this issue on more than one occasion.  Eventually, we’ll need an answer.




John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

ISSUE: Future Landmark Cases – Concurrent Jurisdiction

Jack_crop 72dpiI’ve talked about dual, or concurrent, USL&H/state act workers’ compensation jurisdiction here several times, and most recently I discussed the U.S. Supreme Court’s landmark Sun Ship decision.  This was the decision that established that the 1972 Amendments to the Longshore Act supplemented but did not supplant state workers’ compensation laws, firmly establishing concurrent jurisdiction.

I’ve also listed the various “concurrent” and “exclusive” states several times.  Here is my unofficial list of the “concurrent” states: AL, AK, CA, CT, DE, GA, IL, MA, ME (?), MI, MN, MO (?), NC, NY, RI, SC, TN, WV, WI.   As you can see there are quite a few significant maritime states on the list.

Let’s renew the discussion of concurrent jurisdiction and take as our starting point the following assumptions, 1) concurrent USL&H/state act jurisdiction is a fact in many states, and, 2) concurrent jurisdiction is a problem for maritime employers.

It is self evident that having to comply with two different regulatory schemes for worker injuries entails inefficiencies and extra costs for the employer.  For an American maritime industry that competes internationally in ship building/repair and cargo handling, it is not a stretch to say that concurrent jurisdiction increases costs and is a negative element in the competitive balance.

Note:  I know that section 3(e), added as part of the 1984 Amendments to the Longshore Act, states that, “… any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under this Act pursuant to any other workers’ compensation law … shall be credited against any liability imposed by this Act.”

This credit provision doesn’t begin to address the additional costs to the employer due to overhead, administration, and expense items, and sometimes even redundant benefits necessitated by concurrent jurisdiction.

This is a straightforward issue of federal preemption if the proper case can reach the U.S. Supreme Court. Unfortunately, the context for this issue is decades of jurisprudential confusion over the limits and scope of federal Admiralty authority as opposed to the authority of the individual states.

Let’s look at a very brief history.

1789 – The U.S. Constitution recognizes the need for uniformity in certain areas so that national commerce can function without local interference, as expressed in the Admiralty Clause (Art. III, Sec. 2), the Interstate Commerce Clause (Art. I, Sec. 8), and the Supremacy Clause (Art. VII).

1873 – The U.S. Supreme Court stated (referring to the Admiralty Clause in its decision in The Lottawanna, 88 U.S. 558):

“It certainly could not have been the intention to place the rules and limits on maritime law under the disposal and regulation of the several States, that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of the commercial character effecting (sic) the intercourse of the States with each other or with foreign states.”

1910 – 1920 – the states pass workers’ compensation laws providing a remedy for workers injured in the course and scope of employment, in which the workers give up their right to sue for workplace injuries and accept a no fault statutory system of benefits.

1917 – The U.S. Supreme Court’s decision in Southern Pacific Co. v. Jensen, (244 U.S. 205) holds that the coverage of the new state workers’ compensation laws stops at the water’s edge   This decision creates the “Jensen Line” and in the process exposes a gap in workers’ compensation protection for land based employees working over the water.  The case involved a longshoreman injured on a gangplank over the water.

From the Supreme Court in Jensen:

“Article 3, 2, of the Constitution, extends the judicial power of the United States ‘to all cases of admiralty and maritime jurisdiction;’ and article 1, 8, confers upon the Congress power ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States or in any department or officer thereof.’ Considering our former opinions, it must now be accepted as settled doctrine that, in consequence of these provisions, Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country” (quoting from Butler v. Boston & S.S.S. Co., 130 U.S. 527).

Also from Jensen:

“If New York can subject foreign ships coming into her ports to such obligations as those imposed by her Compensation Statute, other states may do likewise.  The necessary consequence would be destruction of the very uniformity in respect to maritime matters which the Constitution was designed to establish; and freedom of navigation between the states and with foreign countries would be seriously hampered and impeded.”

1927 – In response to the Jensen decision, the Longshoremen’s and Harbor Workers’ Compensation Act is passed.  It is a federal workers’ compensation law which covers injuries occurring over the water or on a dry dock.

1927 – 1972 – a period of “impenetrable confusion” ensues as the courts try to reconcile state act workers’ compensation jurisdiction with the coverage of the federal Longshoremen’s Act.

1972 – Amendments to the Longshoremen’s Act move coverage landward for employees engaged in maritime employment in certain enumerated sites and other adjoining areas customarily used for maritime employment.

1980 – The Sun Ship decision by the U.S. Supreme Court confirms concurrent Longshore Act/state act jurisdiction.  This case involved injuries on land to ship repair workers.

1984 – When the Longshore Act is again amended Congress considers but fails to include language to end concurrent jurisdiction.

2016 – Many states have amended their state insurance laws to create exclusive as opposed to concurrent jurisdiction.  These amendments typically provide that if a worker is covered by the Longshore Act then he is not covered by the state act workers’ compensation law.  The problem of concurrent (dual) jurisdiction remains, however, in the many states that have not adopted these types of “exclusive” laws.

Note:  The Jensen decision is still good law.  It has been ignored on occasion and marginalized on occasion but it has never been overruled.

What we need is for a suitable case to somehow find its way to the U.S. Supreme Court so that the Court can reaffirm the Constitutional principle that for injuries over the water, whether to longshoremen, shipbuilders, ship repair workers, or any other workers for that matter, the Longshore Act preempts state workers’ compensation laws.  Period, End of sentence.

This will not be a complete resolution of the concurrent jurisdiction problem, but it will be a step in the right direction.  The next step, to get the Supreme Court to overrule Sun Ship and uphold Longshore Act preemption in all cases involving maritime employment, will admittedly be more difficult.  But there are valid preemption arguments in support of such a decision.  The first step, however, is to get Jensen unequivocally reaffirmed.

This issue is in need of a landmark decision at the U.S. Supreme Court.

John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.

ISSUE: Future Landmark Cases – Situs

Jack_crop 72dpiOn February 1, 2016, I discussed the last case on my list of the top six landmark Longshore Act cases.  This time what I’d like to do is to identify the landmark cases that we need but that we don’t yet have.  There are important, disputed issues and circuit conflicts that have not yet been resolved by the U.S. Supreme Court but that should be.

The first of these involves section 3(a) (33 U.S.C. 903(a)), the situs provision of the Longshore Act.

Section 3(a):

“Except as 137 (1978) or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including 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).”

You can meet the situs requirement for Longshore Act coverage in one of three ways:

  1. Be injured over the navigable waters of the United States,
  2. Be injured on an enumerated site, i.e., any pier, wharf, dry dock, terminal, building way, or marine railway,
  3. Be injured on an “other adjoining area customarily used by an employer” for maritime activity.

The issue to be resolved in our hypothetical future Supreme Court case is the interpretation of “other adjoining area …”

With its April 29, 2013, decision in New Orleans Depot Services, Inc. v. Director, Office of Workers’ Compensation Programs et al. (Zepeda) the federal Fifth Circuit Court of Appeals joined the Fourth Circuit (Sidwell v. Express Container Services, 71 F.3d 1134 (1990)) in a restrictive approach, defining “adjoining” as contiguous to or touching navigable waters.  Prior to Zepeda, the Fifth Circuit had been a leading circuit in an expansive interpretation of the term adjoining.

Circuits other than the Fourth and the Fifth use a geographic/functional approach that does not require that an “adjoining” area be physically contiguous with the water.

What does “adjoining” mean?  The Fourth and Fifth Circuits base their narrow interpretation on the word’s primary dictionary meaning and their own plain reading of the statute.

The Fourth Circuit states – “The ordinary meaning of the word ‘adjoin’ indicates that the area to which Section 3(a) refers must be contiguous with or otherwise touch navigable waters.  If there are other areas between the navigable waters and the area in question, the latter area simply is not ‘adjoining’ the water under any reasonable definition of that word.”

Other circuits, such as the Ninth, read the same statute and take a different meaning.

The Ninth Circuit states – “Consideration should be given to the following factors, among others, in determining whether or not a site is an ‘adjoining area’ under Section 903(a):  the particular suitability of the site for the maritime uses referred to in the statute; whether adjoining properties are devoted primarily to uses in maritime commerce; the proximity of the site to the waterway; and whether the site is as close to the waterway as is feasible given all of the circumstances in the case” (Brady-Hamilton Stevedores v. Herron, 568 F.2nd 137 (1978)).

Other circuits, notably the First and the Third, take an approach similar to the Ninth’s.

A circuit conflict on such a basic element of coverage should be resolved by the Supreme Court.

The Ninth Circuit has recently been right on the situs of injury question for Outer Continental Shelf Lands Act (OCSLA) coverage, and it is probably right on the question of  interest due on past due compensation (compound not simple interest).  If it’s right on contiguous versus vicinity situs issue then the Supreme Court should say so.

NOTE:  Unsolicited opinion warning:  Workers who are engaged in maritime employment such as the container repair mechanics involved in Sidwell and Zepeda, but whose employers have been forced to relocate away from the waterfront for economic reasons should not necessarily lose Longshore Act coverage.

At any rate, contiguous or in the vicinity, you should get the same answer in each of the federal circuits under a statute based on the principle of national uniformity in maritime matters.

Admittedly, the position taken by the Fourth and Fifth Circuits is straightforward and certain.  “Adjoining” means contiguous with and touching.

The opposing view typified by the Ninth Circuit’s approach is more nuanced, and admittedly has more moving parts, such as distance from the water, use of intervening properties, use of neighboring properties, reasons why the employer chose the location, etc. in the effort to identify maritime neighborhoods that “adjoin” or are in the vicinity of navigable waters.

I don’t think that the approaches taken by the Fourth and Fifth Circuits as opposed to the Ninth, Third, and First Circuits are necessarily at two opposite poles of the argument.  Here’s what I mean.

The 1972 Amendments to the Longshore Act, recognizing the changing location of maritime employment, followed the maritime work landward by extending coverage to adjoining landside areas where work had moved due to technological and economic changes in cargo handling and ship fabrication.  The Amendments intended to provide uniform Longshore Act coverage to maritime workers on both sides of the water line. You could make the argument that if, for largely economic reasons, the work has moved again, then uniform Longshore Act benefits should again follow the maritime workers.

The more expensive that waterfront property becomes and the more expansive terminal operations become, the more you expect maritime workers such as container repairmen, transportation workers, ship fabricators, etc. to be working away from the water.

I’m not suggesting that a covered situs is anywhere where maritime activity occurs, but perhaps it should be part of the situs analysis.  This approach is at the opposite pole from the interpretation of the Fourth and Fifth Circuits, placing the Ninth Circuit’s formulation more in the middle.

How far from the water is too far?  Rather than an arbitrary line at some point, maybe it’s where the non-maritime factors outweigh the maritime factors governing a particular site’s location.  Although absolutely no court has endorsed this, maybe some element of the nature of the work should be considered.

This conflict can be resolved by the Supreme Court.  Maybe this will be the next landmark Longshore Act case.

John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation.  Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.