Ward v. State Workmen's Compensation Com'r

• Decision Date: 25 March 1983
• Docket Number: No. 15692,15692
• Court: West Virginia Supreme Court
• Parties: Gordon J. WARD v. STATE WORKMEN'S COMPENSATION COMMISSIONER and the Ohio River Co.

Page 592

301 S.E.2d 592

171 W.Va. 636

Gordon J. WARD v. STATE WORKMEN'S COMPENSATION COMMISSIONER and the Ohio River Co.

No. 15692.

Supreme Court of Appeals of West Virginia.

March 25, 1983.

Syllabus by the Court

A maritime employee who suffers injuries compensable by the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq., and our state workmen's compensation law, W.Va.Code, 23-1-1, et seq., may assert his state claim without a determination about applicability of the federal law. The Syllabus Point in Lockhart v. State Workmen's Compensation Commissioner, 165 W.Va. 134, 267 S.E.2d 448 (1980), is overruled.

James H. Coleman, Charleston, for appellant.

James J. MacCullum, Shaffer & Shaffer, Madison, for appellee.

HARSHBARGER, Justice:

On December 10, 1979, Gordon Ward applied for occupational pneumoconiosis benefits, W.Va.Code, 23-4-1, et seq. The Workmen's Compensation Commissioner ruled on May 13, 1980 that he had met the statute's exposure requirements, and referred the claim to the Occupational Pneumoconiosis Board. W.Va.Code, 23-4-15b.

His employer, The Ohio River Company, protested. In May, 1981, after a hearing and submission of the claim, the Commissioner set aside her original ruling and rejected Gordon's claim because he was "not an employee within the meaning of" the workmen's compensation law, W.Va.Code, 23-2-1, et seq. (The Commissioner did not specify which part of the lengthy Code section she was relying upon.) The Appeal Board affirmed the Commissioner, and we granted this appeal to decide whether our state workers' compensation statute applies to injuries that are also covered by the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq. (LHWCA), specifically § 903(a). ¹

Ward worked for The Ohio River Company at its Huntington, West Virginia coal loading facility. He transferred coal from railroad cars to barges, working on land-based facilities and a pontoon in the river. He was exposed to coal dust in both work areas.

The Ohio River Company argues that federal compensation by the LHWCA is Ward's exclusive remedy, and Ward is not entitled to a state claim. We are cited to our Syllabus Point in Lockhart v. State Workmen's Compensation Commissioner, 165 W.Va. 134, 267 S.E.2d 448 (1980):

Where an injured maritime worker files for benefits under the state workmen's compensation law, the state compensation commissioner must make a determination as to the applicability of the Longshoremen's Act (Title 33, Ch. 18, U.S.C.) before the state law can be applied. If the commissioner finds the federal act covers the claimant's injuries, the state claim will not be further considered.

Lockhart reached that conclusion, in part, because our court understood that LHWCA's exclusivity provision, 33 U.S.C. § 905(a), ² precluded concurrent state and federal jurisdiction when there was LHWCA coverage. Id., 165 W.Va. at 137-138, 267 S.E.2d, at 450. Lockhart was decided on June 17, 1980. On June 23, 1980, the United States Supreme Court unanimously decided Sun Ship, Inc. v. Commonwealth of Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458, reh. denied, 448 U.S. 916, 101 S.Ct. 37, 65 L.Ed.2d 1179.

Sun Ship clarified the concurrent jurisdiction of state and federal compensation remedies. Congress enacted the LHWCA in 1927 to ameliorate problems caused by a 1917 decision, Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, that denied injured maritime workers access to state compensation remedies. The act was worded to compensate injuries not covered by state compensation laws. Problems were not eradicated, however, because injured maritime workers were forced to determine which law applied and to then proceed in that exclusive forum.

Individual case-by-case determinations resulted in unnecessary expense and delay. Sometimes a choice of the wrong forum resulted in a statute of limitations bar to the other claim. Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), and Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), established an area of concurrent state and federal jurisdiction.

Congress amended LHWCA's Section 903(a) in 1972 to cover injuries sustained beyond the shoreline--injuries formerly within a state's exclusive jurisdiction. This was to guarantee compensation to injured shore workers absent adequate state remedies. Justice Brennan explained in Sun Ship that the 1972 amendment was intended to create a larger area of concurrent jurisdiction rather than move the "twilight zone" between state and federal jurisdiction. "The language of the 1972 amendments cannot fairly be understood as preempting state workers' remedies from the field of the LHWCA, and thereby resurrecting the jurisdictional monstrosity that existed before the clarifying opinions in Davis and Calbeck. " Id., 447 U.S., at 720, 100 S.Ct. at 2436, 65 L.Ed.2d, at 463. The court noted in Footnote 8 that an award under one scheme would be credited against the other:

Of course, there is no danger of double recovery under concurrent jurisdiction since employers' awards under one compensation scheme would be credited against any recovery under the second scheme. See, e.g., Calbeck v. Travelers Insurance Co., supra, [370 U.S.] at 131, 8 L.Ed.2d 368, 82 S.Ct. 1196 [at 1205]. Id., 447 U.S., at 725, 100 S.Ct. at 2439, 65 L.Ed.2d, at 466.

Sun Ship confronted the problem of federal authority over interstate commerce and admiralty, and analyzed congressional intent and determined "that the 1972 extension of federal jurisdiction supplements, rather than supplants, state compensation law. Given that the pre-1972 Longshoremen's Act ran concurrently with state remedies in the 'maritime but local' zone, it follows that the post-1972 expansion of the Act landward would be concurrent as well." Id., 447 U.S., at 720, 100 S.Ct. at 2436, 68 L.Ed.2d, at 463 (emphasis ours).

In Lockhart, supra, we presumed that LHWCA coverage foreclosed state duplicate coverage. Code, 23-2-10 was designed to prevent this state's usurpation of Congress' superior power to regulate interstate commerce, to unconditionally include employees in separable, intrastate activities and to cover interstate West Virginia employees over whom Congress has not asserted exclusive authority. See generally Suttle v. Hope Natural Gas Co., 82 W.Va. 729, 97 S.E. 429 (1918).

Lockhart also focused on W.Va.Code, 23-2-10:

In case any employer within the meaning of this chapter is also engaged in interstate or foreign commerce, and for whom a rule of liability or method of compensation has been established by the Congress of the United States, this chapter shall apply to him only to the extent that his mutual connection with work in this State is clearly separable and distinguishable from his interstate work, and to the extent that such work in this State is clearly separable and distinguishable from his interstate work, such employer shall be subject to the terms and provisions of this chapter in like manner as all other employers hereunder. Payments of premiums shall be on the basis of the payroll of those employees who perform work in this...