Uphold v. Illinois Workers' Compensation

• Citation: 896 N.E.2d 828,385 Ill. App. 3d 567
• Decision Date: 24 September 2008
• Docket Number: No. 5-07-0669 WC.,5-07-0669 WC.
• Parties: Cecil UPHOLD, Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (National Maintenance & Repair, Appellee).
• Court: United States Appellate Court of Illinois

896 N.E.2d 828

385 Ill. App. 3d 567

Cecil UPHOLD, Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (National Maintenance & Repair, Appellee).

No. 5-07-0669 WC.

Appellate Court of Illinois, Fifth District.

September 24, 2008.

Thomas C. Rich, Thomas C. Rich, P.C., Fairview Heights, IL, for Appellant.

Eugene F. Keefe, Keefe, Campbell & Associates, Chicago, IL, for Appellee.

Justice GROMETER delivered the opinion of the court:

At issue in this case is whether claimant, Cecil Uphold, may pursue workers' compensation benefits under the Illinois Workers' Compensation Act (ILWCA) (820 ILCS 305/1 et seq. (West 2004)) or whether his claim for relief is preempted by federal law, specifically, the Longshore and Harbor Workers' Compensation Act (LHWCA) (33 U.S.C. § 901 et seq. (2000)). The arbitrator, relying on Davis v. Department of Labor & Industries of Washington, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), determined that claimant could proceed under either the ILWCA or the LHWCA. A majority of the Workers' Compensation Commission (Commission) affirmed and adopted the decision of the arbitrator. However, the circuit court of Madison County set aside the Commission's decision. For the reasons that follow, we affirm the judgment of the circuit court.

I. BACKGROUND

Claimant filed an application for adjustment of claim on October 26, 2005, alleging that he injured his mid-to-low back while working for respondent, National Maintenance and Repair. Prior to the arbitration hearing, respondent filed a "Motion to Dismiss for Lack of Subject Matter Jurisdiction." In the motion, respondent argued that subject matter jurisdiction over claimant's workers' compensation claim lies exclusively with the LHWCA.

Meanwhile, the matter proceeded to an arbitration hearing, at which claimant testified that his duties for respondent involved cleaning and vacuuming barges. The injury at issue occurred on August 12, 2005, while claimant was working on a vessel known as the "Harry Tulodzieski." Claimant described the occurrence as follows:

"I was in the bottom of the boat. I was working with very bad lighting[;] I was having to use a flashlight. I had to walk close to a bulk head. Didn't realize I was close to the bulk head. The vacuum hose I was using stuck to the bottom. You have to use basically brute force to break the vacuum and when I used the force to break the vacuum I smashed my back against a pipe sticking out from the wall. It immediately threw me forward from the impact catching myself on the bulk head and a structure beam."

At the time of the injury, claimant had been employed by respondent for four months. Claimant stated that prior to the injury at issue, he had never sustained an injury to his low back or sought treatment for any low-back condition. Claimant also stated that he had never filed a claim under either the ILWCA or the LHWCA for a low-back injury.

Claimant described respondent as a "local" company based in Hartford, Illinois, which offers a variety of services, including rail repair, marine repair, barge rebuilding, and barge cleaning. Claimant testified that "portions" of respondent's business are land based and "purely local" in nature. Claimant related that his position is based in Hartford, that he clocks in and out of work there, and that he receives his paycheck there. Claimant stated that in his position with respondent he has never loaded or unloaded materials from a boat as a longshore employee. Further, his position does not require him to tie or untie barges or to assist anyone in performing those duties. Claimant added that he is not and has never been a member of the longshoremen's union. However, claimant is a member of Local 482, which is part of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers of the AFL-CIO. Claimant also testified that the boats on which he works do not navigate the water while he is performing his duties and that he has never performed any of his job duties "when the boat hasn't been dry docked and anchored and tied to the shore."

On cross-examination, claimant elaborated on his job duties, explaining that he was assigned to respondent's "gas free plant," where hazardous materials such as oil, water, gasoline, and diesel fuel are removed from the bottom of any vessel prior to it being placed in dry dock for repair. In addition, during cross-examination, the following colloquy occurred between claimant and respondent's attorney:

"Q. Okay. Now I'll show you what we've marked as Respondent's Number 4 for identification. Is that an example of what a dry dock is?

A. I would assume, yes, because I'm not a dry dock worker.

Q. I'm not asking you that but I'm just saying—well, again, I'm not trying to put words in your mouth. The Hank Henry that you were talking about.

A. Harry Tulodzieski.

Q. Okay. Was that in a dry dock like this?

A. No.

Q. Okay.

A. Not yet.

Q. It was just floating on the Mississippi River going up and down—

A. Yes.

Q. —when you were doing the vacuuming?

A. Yes.

Q. Okay. So it was just floating on the Mississippi. Was it attached to a barge or was it attached to shore?

A. Attached to the barge which is attached to shore."

Based on the foregoing evidence, the arbitrator determined that jurisdiction under the ILWCA was proper in this case. The arbitrator reasoned:

"Because of the jurisdictional dilemma that can result between the operation of the [ILWCA] and the LHWCA, the Supreme Court in Davis [citation] created a new concept it articulated as the `twilight zone', when employment is `maritime-but-local.' The Court recognized that despite the many cases involving maritime-but-local doctrine [sic], it was unable to give any guiding or definite rule to determine the extent of state power in advance of litigation. To remedy the jurisdictional dilemma, the Supreme Court created the `twilight zone' that, in doubtful cases, there is a regime of concurrent jurisdiction and an injured worker can elect a federal or state remedy. The Supreme Court noted that `there is * * * clearly a twilight zone in which the employees must have their rights determined case by case, and in which particular facts and circumstances are vital elements.' [Citation.]

The law is clear that a worker injured on navigable waters can receive workers' compensation benefits under state laws if his employment has no direct connection to navigation or commerce and the application of the local compensation law does not materially affect the uniformity of maritime law.

Based on all of the evidence set forth herein, [claimant's] claim clearly falls within the `twilight zone' as described by the courts. As [claimant's] employment at this local repair facility is `maritime but local' in nature, there exists concurrent subject matter jurisdiction of the [ILWCA] and the [LHWCA] allowing him to elect a federal or state remedy in seeking compensation for his claim of injury."

The arbitrator further found that claimant sustained an injury arising out of and in the course of his employment with respondent and that his condition of ill-being is causally connected to his employment. The arbitrator awarded claimant 18 and 6/7 weeks of temporary total disability benefits and $8,309.60 in medical expenses.

A majority of the Commission summarily affirmed and adopted the decision of the arbitrator and remanded the cause pursuant to Thomas v. Industrial Comm'n, 78 Ill.2d 327, 35 Ill.Dec. 794, 399 N.E.2d 1322 (1980). Commissioner Mario Basurto dissented. He would have found that the Commission did not have jurisdiction because claimant was working as a ship laborer performing tasks related to maintenance and repair of a vessel while it was floating upon a navigable waterway. Commissioner Basurto acknowledged testimony that the vessel upon which claimant was working was moored to a barge. However, he did not find this fact sufficient to categorize claimant as having sustained a land-based injury, which would have been subject to jurisdiction under the ILWCA. The circuit court of Madison County set aside the Commission's decision. Thereafter, claimant filed the present appeal.

II. ANALYSIS

On appeal, claimant argues that, contrary to the holding of the circuit court, his claim under the ILWCA is not preempted by the LHWCA. He insists that his case falls within the "twilight zone," and is therefore subject to concurrent jurisdiction, because, although he was injured while on navigable waters, his position was "maritime but local." Respondent replies that concurrent jurisdiction is not present in this case. Rather, respondent asserts, because claimant was injured while upon navigable waters and because he was engaged in vacuuming bilge water from the bottom of a vessel, an activity respondent classifies as traditionally maritime, his exclusive remedy lies with the LHWCA. Under the circumstances of this case, we agree that claimant's exclusive remedy lies with the LHWCA.

As a preliminary matter, we must determine the appropriate standard of review. Claimant argues that the issue presented in this appeal presents a question of fact and that the appropriate standard of review is therefore manifest weight of the evidence. Respondent counters that all relevant facts in this case are undisputed. Therefore, it asserts, the issues presented in this appeal are questions of law subject to de novo review. As set forth more thoroughly below, to resolve this dispute we will engage in a two-step analysis. Initially, we will determine whether there is jurisdiction under the LHWCA. If we find jurisdiction exists under the federal statute, we will then determine whether there is concurrent jurisdiction under state law. As a general matter, the former inquiry presents a mixed question of law and fact. See Anastasiou v. M/T World Trust, 338 F.Supp.2d 406, 414 n. 4 (E.D.N.Y.2004) ("[W]hether someone qualifies as an `employee' under the LHWCA...