ISSUE: Concurrent Jurisdiction

Jack_crop 72dpiI’ve discussed the so-called “concurrent jurisdiction” problem on previous occasions. This refers to the inequitable state of affairs confirmed by the U.S. Supreme Court in Sun Ship v. Pennsylvania, 447 U.S. 715 (1980). The decision held that the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 901 et seq.) does not supplant state workers’ compensation laws, it supplements them. This means that maritime workers covered by the Longshore Act are often simultaneously covered by state act compensation laws. The workers have the benefit of double coverage, and the maritime employers have the burden of redundant exposure.

When the Longshore Act was extensively amended in 1984, Sun Ship was not overruled, so concurrent jurisdiction was preserved.

While all state workers’ compensation laws are “concurrent” with the Longshore Act under Sun Ship, many states have expressly provided in their insurance laws words to the effect that if you are covered by a federal liability or compensation statute then you are not covered by that state’s workers’ compensation law.

Slowly, but in what may be an inexorable trend, states are moving from “concurrent” Longshore Act/state act status, to “exclusive” status, whereby workers covered by the Longshore Act are not covered by state act.

Virginia did it, effective July 1, 2012.

Pennsylvania has now done it. The State’s General Assembly Bill No. 2081 was signed into law on June 18, 2014. It amends the State’s workers’ compensation law by adding straightforward language to the definition of employee:

“Section 104. The term ‘employe’, as used in this act is … exclusive of persons subject to coverage under the Longshore and Harbor Workers’ Compensation Act or the Merchant Marine Act of 1920 ….”

So add another state to the list of “exclusive” states. Here’s my unofficial list:

Concurrent States: AL, AK, CA, CT, GA, IL, MA, MI, MN, MO, NC, NY, RI, SC, TN, WV, WI

Exclusive States: FL, HI, IN, KY, LA, ME, MD, MS, NJ, OH, OK, OR, PA, TX, VA, WA

No state, to my knowledge, has gone from “exclusive” back to “concurrent”.

It remains my opinion that this action in Pennsylvania takes nothing unfairly away from maritime workers. It redresses an inequity by fairly placing Pennsylvania maritime employers on an even playing field with other employers in the State, and importantly, with other maritime employers in several neighboring states, with regard to workers’ compensation coverage. Maritime workers remain properly covered by what is considered to be the most liberally interpreted workers’ compensation law in the country. The workers are simply no longer in the uniquely privileged position of having double coverage.

It’s curious to me that workers with such a unique, unearned privilege somehow convince themselves that this fortuitous benefit of double coverage is their due while they overlook the competitive disadvantage in which this places their employers in the industry that provides their livelihood.

At any rate, this is another step in the right direction.

ISSUE: 2012 Was an Interesting Year – Part Two

Jack_crop 72dpiA couple of weeks ago in “Interesting Year – Part One” we noted that with regard to jurisprudence, 2012 was an interesting year for those who follow developments under the Longshore Act. Several cases were decided (or are in the process of being decided) at the U.S. Supreme Court, several old questions received presumably final answers, and several perennial issues received new attention. There was even some good news for maritime employers in the state of Virginia.

Part One covered only those cases that came out of the federal Ninth Circuit Court of Appeals (CA, OR, WA, AZ, MT, ID, NV, AK, HI). Here are the rest of what, in my opinion, were the Longshore high points of 2012.

Bernard D. Boroski v. Dyncorp International, Insurance Company of the State of Pennsylvania/AIG Worldsource, Director, Office of Workers’ Compensation Programs, United States Department of Labor

Following the Supreme Court’s decision in Roberts (see Part One), on October 30, 2012, the other Section 906(c) shoe dropped as the Eleventh Circuit (AL, GA, FL) issued its decision on remand in the Boroski case. The Eleventh Circuit followed the Supreme Court’s holding in the Roberts case on the interpretation of “newly awarded” and also decided a previously unresolved issue in the Boroski case, namely, that the phrase “currently receiving” in Section 906(c) has the same meaning as “newly awarded”. In other words, both terms refer to the time of entitlement to benefits.

For example, if an ALJ issues a compensation order in 2007 awarding PTD benefits beginning during the 10/1/2002 to 9/30/2003 period, and the worker is not actually paid until the 2007 Order, the maximum rate in effect on 10/1/2002, controls his weekly rate, as that is when he was found to be “newly awarded” and “currently receiving” his benefits.

Concurrent Jurisdiction – Virginia

In April 2012 the State of Virginia enacted legislation changing the State from “concurrent” state act/Longshore Act coverage to “exclusive” coverage. Effective July 1, 2012, if an injured worker is covered by the Longshore Act (or the Jones Act) then he is not covered by Virginia’s workers’ compensation law.

This (concurrent jurisdiction) is an old problem. In 1980, the U.S. Supreme Court in Sun Ship v. Pennsylvania had confirmed that the Longshore Act did not supplant state workers’ compensation laws, it supplemented them. Maritime workers’ compensation claims can be covered simultaneously by both state workers’ compensation laws and by the federal Longshore Act. This obviously leads to inefficiencies and extra costs for maritime employers and their insurance carriers, who must insure workers under both laws, comply with two sets of regulations, deal with two different medical fee schedules, satisfy two regulators, pay occasionally redundant benefits and attorney fees, and so on. Those who deal with the problem at first hand could extend the list of inefficiencies and higher costs.

Many maritime states have amended their workers’ compensation laws to eliminate concurrent jurisdiction. So called “exclusive” states include Florida, Louisiana, Maryland, Mississippi, New Jersey, Texas, Washington, and now Virginia.

There are still many maritime states that are “concurrent”. These include Alabama, California, Connecticut, Georgia, New York, Pennsylvania, Rhode Island, North Carolina, Delaware, and South Carolina.

There is a solution to the concurrent jurisdiction problem. The remaining “concurrent” states can amend their insurance laws to provide for exclusive Longshore coverage in maritime cases just as Virginia has done. The fix can also come from the U.S. Congress by means of an amendment to the Longshore Act.

Ceres Gulf, Inc. v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor; Norris Plaisance, Sr.

The federal Fifth Circuit Court of Appeals (LA, TX, MS) issued a very interesting hearing loss decision in June 2012. The case of Ceres Gulf, Inc. v Director, Office of Workers’ Compensation Programs, U.S. Department of Labor; Norris Plaisance, Sr., may be a breakthrough decision for employers, or it may simply be a case where the Fifth Circuit was of the opinion that the Benefits Review Board had gone too far in its zeal for entitlement, fascination with the Aggravation Rule, and chronic misapplication of the evidentiary burden for rebutting the Section 20(a) presumption of causation. So maybe it’s too early to assess the importance of Plaisance.

Mr. Plaisance was a longshoreman from the 1950s until he retired in 1988, last working for Ceres. He filed a hearing loss claim against Ceres under the Longshore Act in 2006, when he was 80 years old.

In the original decision in this case the ALJ found that the employer rebutted the Section 920(a) presumption of causation and that the claimant, based on the preponderance of the evidence in the record as a whole, failed to establish that his hearing loss was caused by his employment with Ceres. He denied the claim. In reaching his decision, the ALJ considered defense expert testimony regarding causation based on sound level surveys and generalized population information regarding loss of hearing.

On appeal, the Benefits Review Board ruled that the employer’s expert evidence was inadmissible as irrelevant, and remanded the case. On remand, the ALJ, following the BRB’s direction, excluded the employer’s expert evidence, found that without that evidence the employer failed to rebut the Section 20(a) presumption, and he awarded the claimant compensation for an 8.4% binaural hearing loss. In his decision, the ALJ found that because the claimant had not shown that most of his hearing loss, his non work related (bilateral conductive) hearing loss, pre-dated his work with Ceres, then that condition could not have been “aggravated” during employment.

On appeal this time around, the BRB affirmed the ALJ’s revised finding of work related compensable injury, but held that the ALJ erred in holding that the claimant must prove that his conductive (non-work related) hearing loss pre-existed his work related hearing loss. The BRB placed the burden on the employer to provide substantial evidence that it did not. The Board held that the entire hearing loss was work related (the approximately 8 % work related combined with the approximately 72% non-work related) and awarded payment for an 80.8% hearing loss. The Board’s decision was based on the Section 20(a) presumption and the Aggravation Rule as it applied to the claimant’s non-work related hearing loss.

The critical issue on appeal to the Fifth Circuit was whether the BRB properly required the ALJ to disregard a substantial portion of the reasoning used by the employer’s medical expert.

Not for the first time the Fifth Circuit belabored the Board. The Court noted that the Board had “placed a thumb on the evidentiary scale”. The Court emphatically found that the employer’s medical expert’s opinion was certainly relevant given his credentials, and at any rate it is for the ALJ to assess relevance and credibility. The question on exclusion was “relevance”, not sufficiency to persuade.

The Fifth Circuit has previously lectured the Board that it may not adopt standards requiring employer’s rebuttal evidence to “rule out”, unequivocally state, or affirmatively state their positions to the exclusion of the claimant’s case. All it must do is advance evidence to throw factual doubt on the prima facie case in order to rebut the presumption.

And so once again in the Plaisance case the Fifth Circuit noted that, “The Board evidently raised the employer’s burden of rebutting the Section 20(a) presumption from that of simply adducing substantial evidence to the more onerous task of disproving the claimant’s prima facie case” at the rebuttal stage.

At any rate, the testimony by the employer’s expert that the claimant’s hearing is better than the average person his age is intended as an alternative explanation of causation, that is, the hearing loss may have been caused by the normal process of aging. The BRB had no basis to exclude the testimony.

The Court found that the first ALJ decision denying benefits because the claimant’s hearing loss was not work related was based on admissible substantial evidence, and the decision denying benefits was reinstated.

Fane Lozman v. The City of Riviera Beach, Florida

In October 2012 the U.S. Supreme Court heard oral arguments in the case of Fane Lozman v The City of Riviera Beach, Florida.

What started out as an in rem action in admiralty alleging the maritime tort of trespass and to foreclose a maritime lien for unpaid dockage has advanced to the U.S. Supreme Court on the basis of Mr. Lozman’s argument that his “floating residential structure” is not a vessel subject to admiralty jurisdiction.

We are at the Supreme Court again on the issue of a vessel status test because there is a split among federal circuits on the question of what is a vessel. It is an important issue.

The “Jones Act” was enacted in 1920, providing a negligence remedy for crewmembers of vessels (and the general maritime law remedies of unseaworthiness of a vessel and maintenance and cure are much older). In 2012, we’re still looking for a uniform test to define what a vessel is.

The Fifth and Seventh Circuits (IL, IN, WI) consider the intent of the owner while in the Eleventh Circuit vessel status does not depend in any way on either the purpose for which the craft was constructed or its intended use. The Eleventh Circuit’s approach is based on its interpretation of Stewart v. Dutra Construction Company, 543 U.S. 481 (2005) and considers only whether the floating object is practically capable of transportation on water regardless of its purpose or the owner’s intent.

The vessel status question comes up all the time, is important in many contexts, and the hope is that the Lozman case, although it involves a unique structure, will yield a decision that advances toward the goal of a uniform vessel test, or at least clarifies the role of the owner’s intent in the vessel status determination. A decision is expected in the spring, 2013. Unfortunately, we will most likely still be left with a case by case approach in the many novel or unusual situations that arise.

So that’s what I call an interesting year, Part Two.

ISSUE: Concurrent Jurisdiction in Virginia

Virginia is in the process of doing something fair and reasonable for the maritime employers in the State.  On February 28, 2012, the state legislature completed the process of passing a Bill that ends so called “concurrent” jurisdiction in Virginia between the state act workers’ compensation law and the federal Longshore and Harbor Workers’ Compensation Act.  Effective July 1, 2012, if a worker is covered by the Longshore Act (or by the Jones Act, a federal liability remedy covering crewmembers of vessels) he is no longer covered by the State’s workers’ compensation law.  The Bill is awaiting the Governor’s signature.

Background:  I’ve previously discussed concurrent jurisdiction on several occasions.  A 1980 U.S. Supreme Court decision (Sun Ship v. Pennsylvania, 447U.S. 715) confirmed that maritime workers’ compensation claims are covered simultaneously by both state workers’ compensation laws and the federal Longshore Act. This is referred to as “concurrent jurisdiction”.  Obviously this leads to inefficiencies and extra costs for maritime employers and their insurance companies, who must insure workers under both laws, comply with two sets of regulations, deal with two sets of medical fee schedules, satisfy two regulators, pay occasionally duplicative benefits and attorney fees, fill out two sets of forms, reports, etc., and etc. 

Many maritime states have expressly amended their workers’ compensation laws to eliminate concurrent jurisdiction by providing generally that if a worker is covered by the Longshore Act then he is not covered by the state act.  These so called “exclusive” states include Florida, Louisiana, Maryland, Mississippi, New Jersey, Texas andWashington.  Typical language appears in the Florida law:  “No compensation shall be payable with respect to disability or death of any employee covered by the Federal Employers Liability Act, the Longshore and Harbor Workers’ Compensation Act, or the Jones Act.”

Many other maritime states, however, are still “concurrent” jurisdiction states.  These include Alabama, California, Connecticut, Georgia, New York, Pennsylvania, Rhode Island, South Carolina, and until now, Virginia.  In these concurrent states, injured workers routinely file claims under both the state act and the Longshore Act and the workers, their attorneys, and medical and other service providers all seek and choose whatever is to their advantage under both laws.

Clearly, concurrent jurisdiction is a problem for maritime employers in concurrent states.   There may be an occasional advantage available to an injured worker or service provider in some states under certain circumstances by being able to claim benefits under two laws.  The disadvantage to the maritime employer exists across the board, however, since it must pay for two insurance policies, covering every maritime worker under two separate laws.  Also, once an injury occurs, the maritime employer has a disadvantage in every case for every injured worker in every concurrent state by having to provide two complete systems of compliance, regulation and claims administration.

And please remember that the Longshore Act by no means provides inadequate protection.  In fact, it is arguably more generous, more liberally administered, and provides higher maximum weekly benefits than any of the state workers’ compensation laws.  So in all fairness, Virginia has not deprived injured maritime workers of workers’ compensation protection.  These workers continue to be covered by what is frequently referred to as “the most expensive workers’ compensation law in the country”.  They simply no longer have the peculiar advantage of concurrent jurisdiction that was not available to any other workers in the State.

So, once the Governor signs the Bill in Virginia, which he is expected to do, effective July 1, 2012, Virginia’s maritime employers will no longer have to maintain two concurrent workers’ compensation insurance plans for their longshoremen, shipbuilders, ship repair workers and other traditional maritime workers.

Concurrent Jurisdiction – Part Two

ISSUES

This is a continuation of Concurrent Jurisdiction – In Part One we discussed the historical and constitutional context of the Longshore Act/State Act jurisdictional tension, listed the Concurrent and Exclusive states, and gave examples of how the concurrent jurisdiction problem costs maritime employers money.   Part Two concludes the discussion of Concurrent Jurisdiction. 

But before we continue with Part Two, let’s go back to the state lists in Part One.  An astute and well informed reader pointed out that according to her reading of the laws in Indiana and Kentucky these states should have been listed as “exclusive” rather than “concurrent”.  That is a fair interpretation of the language in each state’s law, and it points out two problems.  First, there are too many astute and well informed readers out there.  Second, there is a danger in being too brief in summarily discussing nuanced issues. 

So a brief (sorry) background on how I compiled my lists.  

Back when I was still at the Department of Labor we decided to require authorized insurance carriers to post collateral in the same manner as authorized self-insurers.  This was in response to the unpredictable behavior of state insurance departments and guarantee funds when insolvencies occurred.  Our aim was to protect the Longshore Special Fund. 

Since a security requirement for insurance carriers would be conditioned on several variables related to state action, we needed to collect information.  We needed to know, in the event of a carrier insolvency and default, whether the state guarantee fund would pay Longshore cases and/or would the state administrator or rehabilitator pay Longshore cases under state act up to state maximum rate limits.  We wrote to each state’s insurance department and followed up with telephone calls.  We didn’t get many straight answers. 

Information and impressions gained from that experience were the initial bases for my lists, and I have annotated the lists as I have noted new, relevant information. 

One of the conclusions I’ve drawn is that if the state insurance law does not specifically cite the Longshore Act by name in its exclusions/exemptions provision, then unless I know something firsthand to the contrary I will lean toward calling that state “concurrent” to be conservative.  If the Longshore Act is not cited by name, then there is too much room for a state court to interpret any exclusion as applying only to federal liability statutes such as the Jones Act and the Federal Employers Liability Act. 

So even though your state’s insurance law seems to say that your state is “exclusive”, if it does not specifically cite the Longshore Act by name, it is very possible that your state will be listed by me as “concurrent” in the belief that there is room for improvement in the language of the state act.  This is the situation in Indiana and Kentucky.  I’m not sure whether these two states are concurrent or exclusive, but since there’s room for doubt I play it safe and list them as concurrent. 

Possibly I should list a third category called “ambiguous” states.  Or maybe indicate the uncertainty with regard to some states by  marking the state with a question mark.  Actually this is what I’ll do.  Indiana and Kentucky are now officially listed in my “concurrent” list as IN(?) and KY(?). 

And thank you to that reader for raising the issue. 

PART TWO OF TWO

                                                CONCURRENT JURISDICTION

EXAMPLES – these cases are typical of problems faced by maritime employers due to concurrent state/federal Longshore jurisdiction.

In a recent case in Maine (supposedly an exclusive state so you can see the problem with trying to compile a list.  What is really needed is a uniform, comprehensive solution to the concurrent jurisdiction issue) a worker filed a Longshore Act claim and was paid Longshore Act benefits.  A hospital which had provided medical services sued for reimbursement under the state workers’ compensation law, which allowed for higher medical payments than the federal fee schedule.  Result:  the employer paid the higher medical costs under state law and the higher indemnity benefits under the Longshore Act.

In a recent case in New York a worker was permitted to sue his employer under New York State Labor Law section 240 in a case where his claim was covered under the Longshore Act and concurrently under state law.  The state court held that the lawsuit under state law was not preempted by the Longshore Act.

In recent cases in Connecticut state courts have held that longshoremen injured in the hold of a ship were concurrently covered under both the Longshore Act and state law (directly contrary to Jensen).

Similarly, in Pennsylvania a shipyard worker working in a dry dock was held by state court to be covered concurrently by state law and the Longshore Act.

In Michigan the state workers’ compensation law contains an exception to the employer’s immunity by allowing the injured worker to sue on the theory of “intentional tort”.  Other states also have this exception, such as Louisiana, Texas, and Ohio.

In a civil case currently pending in Michigan a RICO fraud lawsuit by an injured worker against his employer, the workers’ compensation claims adjuster, and a defense doctor has survived a challenge and is proceeding.

CREDIT

Section 903(e) of the Longshore Act states, “Notwithstanding any other provision of law, 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 or section 20 of the Act of March 4, 1915 (relating to recovery for injury to or death of seamen) shall be credited against any liability imposed by this Act.”

So, in most instances double recovery to the injured worker is avoided, but the employer still has the burden of double costs, etc.

SOLUTIONS?

It would help if the courts would enforce Jensen, at least for maritime workers injured over navigable waters, but a more comprehensive solution would be for the U.S. Supreme Court to overturn Sun Ship and enforce the Longshore Act’s exclusivity under the Supremacy, Admiralty, and Commerce clauses of the U.S. Constitution. 

It is unlikely that Sun Ship will be overturned, however, so the solution will have to come from either state legislatures or Congress.