Hill v. W.C.A.B. (Spirit of Philadelphia)

• Decision Date: 30 October 1997
• Parties: John HILL, Jr., Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (SPIRIT OF PHILADELPHIA), Respondent.
• Court: Pennsylvania Commonwealth Court

Page 74

703 A.2d 74

1998 A.M.C. 351

John HILL, Jr., Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (SPIRIT OF PHILADELPHIA), Respondent.

Commonwealth Court of Pennsylvania.

Argued Oct. 9, 1996.

Decided Oct. 30, 1997.

Brian R. Steiner, Philadelphia, for petitioner.

Richard N. Held, Philadelphia, for respondent.

Before COLINS, President Judge, and DOYLE, McGINLEY, SMITH, FRIEDMAN, FLAHERTY, and LEADBETTER, JJ.

DOYLE, Judge.

John Hill (Claimant), appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a decision of a Workers' Compensation Judge (WCJ) to dismiss a Claim Petition for lack of subject matter jurisdiction.

The facts are not in dispute. Claimant was a deckhand on a ship, the "Spirit of Philadelphia," a tour boat that plies the navigable waters of the Delaware River. The WCJ's critical findings of fact describe Claimant's duties and injury as follows:

5. This [W]orkers' [C]ompensation Judge has reviewed the record as a whole and finds that it supports the following facts:

....

c) [Claimant's duties included] ... cleaning off the deck and hosing it down as well as sweeping down the deck and hosing it off, cleaning the boat down, cleaning such as "household work" as in cleaning out bathrooms, and hooking up sewer and water lines when the boat was docked;

d) Claimant also described his duties as including making a trash run which would mean emptying the trash from the ship into a dumpster which was located about a block or a block and a half from where the ship was docked;

e) Claimant also described his duties as including security work while the boat was sailing the Delaware River in that he would patrol the boat making sure people behaved properly and did not lean on the rails;

f) Claimant continued to describe his duties as including cleaning the brass on the boat, vacuuming, cleaning toilets, sinks and mirrors and preparing the boat for the next cruise;

g) On July 20, 1990, Claimant, while making a trash run to the dumpster was on top of the dumpster, slipped off the dumpster and found his body wedged between the truck and the dumpster;

h) Claimant fell between six or seven feet on the ground injuring his foot and lower back;

....

6. This Workers' Compensation Judge has reviewed the record as a whole and finds that Claimant's testimony establishes an insufficient nexus of land-based activities to sustain his action under the Pennsylvania Workers' Compensation Act. Claimant specifically testified that the trash run was the only land base[d] activity [that] he performed and that activity took approximately ten minutes in duration to perform. All other activities with regard to Claimant's job as a deck hand were performed on the ship, the Spirit of Philadelphia and there was no nexus between Claimant's job as a deck hand and the land. The ship, the Spirit of Philadelphia was not [a] stationary vessel but rather a cruise ship that sailed up and down the Delaware River, a navigable waterway. Claimant's testimony fails to establish that Claimant's work was sufficiently land-based[.] [I]n this case the fall was in the concurrent jurisdiction of the Pennsylvania Workers' Compensation Act and the [f]ederal Longshoreman [sic] and Harbor Workers' Compensation Act.

7. Claimant was a deck hand on the Spirit of Philadelphia and his job duties did not include sufficient land base activities to provide him a remedy under the concurrent jurisdiction of the Federal Longshoreman and Harbor Workers' Compensation Act and the Pennsylvania Workers' Compensation Act.

8. Claimant did not sustain a work related injury within the meaning of the Pennsylvania Workers' Compensation Act.

(WCJ's Findings of Fact Nos. 5-8; Reproduced Record (R.R.) at 147a.) Based on these facts, the WCJ concluded:

1. Claimant has not sustained his burden of proving that his duties were sufficiently land-based to fit within the [con]current jurisdiction of the Longshoreman and Harbor Workers' Compensation Act and the Pennsylvania Workers' Compensation Act and thus, Claimant's Claim Petition for compensation under the Pennsylvania Workers' Compensation Act must be dismissed for lack of jurisdiction.

(WCJ's Decision at 4; R.R. at 147a.) Claimant subsequently appealed to the Board, which affirmed the decision of the WCJ.

Claimant then appealed to this Court, arguing that the Board erred when it concluded that he did not fall within the jurisdiction of the Pennsylvania Workers' Compensation Act ¹ (PWCA). Specifically, Claimant argues that the PWCA is an act of territorial jurisdiction, applying to all injuries occurring within the Commonwealth of Pennsylvania, relying on Section 1 of the PWCA, which provides:

That this act shall be called and cited as The Pennsylvania Workers' Compensation Act, and shall apply to all injuries occurring within this Commonwealth ....

77 P.S. § 1 (emphasis added). Using the language of Section 1, Claimant argues that because his injury happened within the territorial borders of the Commonwealth, he is entitled to benefits under the PWCA. Furthermore, Claimant attempts to rebut the Board's conclusion that the Longshore and Harbor Workers' Compensation Act ² (LHWCA) preempts the PWCA by citing Sun Shipbuilding and Dry Dock v. Workmen's Compensation Appeal Board ³ for the principle that the jurisdiction of the PWCA is concurrent with the LHWCA and is not preempted by it. Therefore, Claimant argues, he may still claim benefits under the PWCA. Because we disagree with Claimant's analysis and agree with the result reached by the Board, we affirm.

To resolve the issues presented, we must first examine federal maritime law and its application to the facts before us. ⁴

The LHWCA was enacted to provide compensation to professional stevedores, and specifically excludes ship's crew members from coverage under the act. South Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251, 60 S.Ct. 544, 84 L.Ed. 732 (1940). Section 903 of the LHWCA provides, in relevant part:

§ 903 Coverage

(a) Disability or death; injuries occurring upon navigable waters of the United States.

Except as otherwise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee ...

33 U.S.C. § 903 (emphasis added). Employee is defined in Section 902 of the LHWCA, which provides, in relevant part:

§ 902. Definitions

When used in this Act--

(3) The term 'employee' means any person engaged in maritime employment, ... but such term does not include--

....

(G) a master or member of a crew of any vessel

33 U.S.C. § 902 (emphasis added). Therefore, crew members are not "employees" for the purposes of the LHWCA and are consequently excluded from LHWCA coverage. Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995).

Claimant's job title was "deckhand," his duties were performed aboard the ship, and the facts found by the WCJ conclusively establish that Claimant was a member of the crew of the Spirit of Philadelphia. Therefore, the LHWCA does not apply.

The holding in Sun Shipbuilding cannot change this result. Sun Shipbuilding stands for the principle that states may apply workers' compensation schemes to land-based injuries that may also fall within coverage of the LHWCA. Sun Ship, 447 U.S. at 716, 100 S.Ct. at 2434. Because the LHWCA by its own terms does not apply to a "member of a crew of any vessel," the Sun Shipbuilding case is inapposite to the instant appeal.

This case is controlled, however, by a different federal statute, viz., the Jones Act. ⁵ The Jones Act provides, in pertinent part:

That any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such actions all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply;....

46 U.S.C.App. § 688 (emphasis added). The United States Supreme Court has held that states have no power to impose liability on employers of seamen under state workers' compensation statutes, even where the seaman is injured on land and within the territorial jurisdiction of the state sovereign. Northern Coal & Dock Co. v. Strand, 278 U.S. 142, 49 S.Ct. 88, 73 L.Ed. 232 (1928). Moreover, the Pennsylvania Supreme Court has held that federal law governs the claims of seamen. Lloyd v. Victory Carriers, Inc., 402 Pa. 484, 167 A.2d 689 (1960).

Thus, the Jones Act applies, both at sea and on land, where there is: (1) a seaman, and (2) the injury occurs in the course of his employment. O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596 (1943). If Claimant was a seaman injured in the course of employment, the Jones Act will apply and preempt the PWCA, notwithstanding the fact that the injury was sustained on land.

The threshold question that must be answered is whether the Claimant is a seaman under the Jones Act. The WCJ's findings of fact 5(c--f) and 6 indicate that Claimant was a member of a ship's crew and courts have held that the term, "member of the crew" is synonymous with the term "seaman" for purposes of the Jones Act. Chandris; White v. Valley Line Co., 736 F.2d 304 (5th Cir.1984). Moreover, the test for seaman status is a very liberal one. A Jones Act seaman need not eat or sleep on the vessel, Producers Drilling Co. v. Gray, 361 F.2d 432 (5th Cir.1966), but need only have a more or less permanent connection to the vessel, Salgado v. M.J. Rudolph Corp., 514 F.2d 750 (2d Cir.1975), and the term includes mariners of any degree. Warner v. Goltra, 293 U.S. 155, 55 S.Ct. 46, 79 L.Ed. 254 (1934).

Moreover, federal courts have applied the Jones Act based on facts very similar to the case now before us. In Savoie v. Otto Candies, Inc., 692 F.2d 363 (5th Cir.1982), a deckhand was injured while on shore cleaning his employer's duck hunting blind and was found to...