State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Coppola v. Logistec of CT., Inc.

CASE NO. 4781 CRB-3-04-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 24, 2005

MICHAEL COPPOLA

CLAIMANT-APPELLANT

v.

LOGISTEC OF CT., INC

EMPLOYER

and

LAMORTE BURNS & CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The Claimant was represented by David Kelly, Esq., Montstream & May, L.L.P., 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.

The Respondents were represented by Peter Quay, Esq., Murphy and Beane, One Union Plaza, P.O. Box 590, New London, CT 06320.

This petition for review from the January 30, 2004 Finding and Dismissal for the Commissioner acting for the Third District was heard September 24, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Donald H. Doyle, Jr.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the January 30, 2004 Finding and Dismissal of the Commissioner acting for the Third District.1 The pertinent facts are also the only facts found by the trial commissioner. They are as follows:

The claimant was employed by Logistec of Connecticut, Inc. on June 15, 1999, when he was seriously injured as a result of a fall in the hold of a ship docked in New Haven and floating on navigable waters of the United States of America.
The claimant has an accepted claim for these injuries under the provisions of the Longshore Act2 for which he is receiving benefits.

See Findings, ¶¶ 1-2.

The trial commissioner then dismissed the claim for lack of subject matter jurisdiction. The legal basis for the commissioner’s conclusion was our Supreme Court’s opinion in Leszczymski v. Radel Oyster Co., 102 Conn. 511 (1925). Finding, ¶ A.

The only issue presented for review is whether the trial commissioner erred in dismissing the matter on the basis of lack of subject matter jurisdiction. The appellant argues that Leszczymski is inapplicable for a number of reasons. First, the Leszczymski opinion predates federal enactment of the Longshore Act. Secondly, the United States Supreme Court’s opinion in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917) upon which the holding in Leszczymski was based, has been significantly narrowed in the eighty years following the court’s decision in Leszczymski.

In Leszczymski, supra, the claimant was a deck hand and crewmember on an oyster boat. On July 15, 1922 the boat was docked in the navigable waters of the United States off Bridgeport, Connecticut. The claimant completed his day’s work and went ashore. He returned to the ship mid-evening and lay down to sleep between two co-workers lying on the boat’s hatch. Around midnight the claimant was discovered to have fallen from the boat and drowned. A claim was brought under the Workers’ Compensation Act and the commissioner concluded that the accident resulting in the claimant’s death arose out of and in the course of employment. While the Leszczymski court noted that the commissioner’s ruling was supported by the holding and legal reasoning of its earlier opinion in Kennerson v. Thames Towboat Co., 89 Conn. 367 (1915), the United States Supreme Court’s opinion in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917) issued post Kennerson compelled dismissal on the basis of lack of subject matter jurisdiction.

In Jensen, the decedent was injured while he was engaged in maritime work upon navigable waters in New York. A compensation claim was brought pursuant to the state of New York’s workers’ compensation act and an award was made. The matter was ultimately appealed to the United States Supreme Court where it was argued, inter alia, that New York’s workers’ compensation act was not applicable as Article I, § 8 and Article III, § 2 of the federal Constitution conferred all regulatory powers relating to maritime and admiralty to the Congress, and all cases of admiralty and maritime jurisdiction were vested in the federal courts. Thus, the application of New York’s workers’ compensation remedy was impermissible as its application would extend the jurisdiction of the state’s police powers beyond that granted by the constitution. The Jensen court opined:

[W]e think, no such legislation is valid. . . . 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. . . .The legislature exceeded its authority in attempting to extend the statute under consideration to conditions like those here . . . .
Exclusive jurisdiction of all civil cases of admiralty and maritime jurisdiction is vested in the Federal District Courts, “saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.” The remedy which the Compensation Statute attempts to give is of a character wholly unknown to the common law, incapable of enforcement by the ordinary processes of any court and is not saved to suitors from the grant of exclusive jurisdiction.

Jensen, supra, pp. 220-21.

Jensen was interpreted as permitting the application of a state’s workers’ compensation remedy in instances “where the legislative scheme did not contravene the essential purpose expressed by an act of Congress or “works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations. . . .” See Davis v. Department of Labor, 317 U.S. 249, 252 (1942) citing Jensen, supra, p. 216. This came to be known as the “maritime but local” rule of applying a state’s compensation remedy. See also; Western Fuel Co. v. Garcia, 257 U.S. 233, (1921); Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922). However, what followed in the wake of Jensen was confusion as to when a state’s compensation remedy could be applied. Following Jensen the Congress enacted legislation permitting the application of a state’s workers’ compensation remedy to waterfront employees but both attempts were declared unconstitutional. See Davis, supra, citing Knickerbocker Ice Co. v. Stewart, 253 U.S. 149 (1920) and State of Washington v. W.C. Dawson & Co., 264 U.S. 219 (1924). Finally, in 1927, the Congress enacted the federal Longshoremen’s and Harbor Workers’ Act.

Under the federal LHWCA as it existed at the time the United States Supreme Court was considering Davis, the application of the remedy provided by the federal act was only permitted in instances where “recovery for the disability or death through workmen’s compensation proceedings may not validly be provided by state law.” Davis, supra, pp. 252-53. The Davis court referred to the situation where a litigant might fall on one side or the other of the jurisdictional line, i.e., federal or state, as the “twilight zone” and held that a claimant was entitled to have their rights determined on a case by case basis and in cases where jurisdiction was doubtful, the injured worker could elect the federal or state remedy.3 The Supreme Court concluded the state of Washington’s workers’ compensation statute could be applied to a steel worker who drowned while loading pieces of a dismantled drawbridge onto a barge in navigable waters. Thus, Davis held concurrent jurisdiction existed between federal and state compensation schemes for injuries occurring in the “twilight zone,” that area where either remedy might apply and an injured worker could elect his remedy. However, under Davis, where no doubt existed, i.e., the injury occurred while the worker was employed in traditional maritime work and occurred over navigable waters, exclusive jurisdiction rested with the federal LHWCA in such situations. Wixom v. Travelers Ins. Co., 357 So.2d 1343 (La.App. 4th Cir.1978).

In 1972, the Congress amended the Longshore Act so as to extend jurisdiction to land based injuries. Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980). The United States Supreme Court was asked to consider the application of the post 1972 amendments to the LHWCA and concluded:

Absent any contradicting signal from Congress, the principles of Davis v. Department of Labor, supra, and of Calbeck [447 U.S. 720] v. Travelers Insurance Co., supra, direct the conclusion 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. For state regulation of worker injuries is even more clearly appropriate ashore than it is upon navigable waters. (emphasis ours)

Sun Ship, supra, pp. 719-20.

In the instant matter the claimant’s argument that Sun Ship did not intend to limit the Longshore Act’s and state’s workers’ compensation remedy to a concurrent supplemental jurisdictional scheme for land based injuries, only has some legal support. See e.g. American Original Foods v. Ford, 271 Va. 557, 272 S.E.2d 187 (1980). In Ford, the court considered the claim of the decedent’s mother. The decedent was a welder who was injured while welding the hydraulic lines in the hold of a shop moored at his employer’s dock. The Ford court noted that the award of compensation under the Virginia Workers’ Compensation Act was not “plainly wrong.” (emphasis ours) Id., p. 562.4 In the Ford court’s legal analysis it noted: “Double recovery under concurrent jurisdiction will not be allowed, because an employer receives credit for prior state compensation awards in any subsequent award under LHWCA.” Id., p. 561.

However, our review of the post Sun Ship court interpretations points us to instances supporting the position of the appellee in this matter. The Appellate Court of Illinois’ opinion in Wells v. Industrial Comm’n, 277 Ill. App. 3d 379, 660 N.E.2d 229, 214 Ill. Dec. 38 (1995) is one such case. In Wells the court held Sun Ship only permitted concurrent jurisdiction where the claimed injury was land based. Specifically, Wells reviewed the claim of a longshore worker injured while loading salvage steel in the hold of a ship docked in a navigable waterway. The claimant sought benefits pursuant to the Illinois Workers’ Compensation Act. The Illinois Industrial Commission concluded jurisdiction existed and awarded benefits pursuant to the Illinois Workers’ Compensation Act. The case was appealed and the Appellate Court of Illinois held jurisdiction for the claim was exclusively vested in the federal Longshore Act. See also, McCoy v. Industrial Comm. 335 Il.App.3d 723, 781 N.E.2d 365, 269 Ill. Dec. 568 (2002).

We note the opinions in Ford and Wells are not binding upon this appellate body. Our Supreme Court’s holding in Leszczymski, supra, remains precedent which we are compelled to follow. The effect of post Leszczymski federal legislation in the form of the LHWCA and federal case law are interpretive matters within the province of our higher appellate courts. It would be an extra-jurisdictional act flouting the principles of stare decisis were we to rule as requested by the appellant given the factual circumstances in this matter. Given the court’s holding in Leszczymski and the analogous fact pattern existing in Wells, supra, we are persuaded that the trial commissioner’s conclusion must stand.

Finally, we note the appellant has not challenged the trier’s finding that the injury for which compensation is claimed occurred on navigable waters. Furthermore, there is no reasonable question of fact the claimant was engaged in maritime employment activity at the time of the injury. The claimant testified in his deposition that he was injured while “digging out copper” in the hold of a ship in navigable waters.5 See Brief of the Employer, p. 7. See Respondent’s Exhibit 2, September 24, 2001, Deposition of Michael Coppola, p. 24.

We therefore affirm the trial commissioner’s conclusion dismissing the matter on jurisdictional grounds.

1 We note that extensions of time were granted to the parties during the period of this appeal. We also note that this matter was consolidated with Gerte v. Logistec of CT, Inc., 4820 CRB-3-04-6 (June 24, 2005) and the two cases were heard together at oral argument. However, in the course of reviewing this appeal we concluded that the factual circumstances are sufficiently distinct to require independent review and analysis. Thus, a separate opinion will be issued in each matter. BACK TO TEXT

2 The Longshore Act reference is to the federal Longshore Harbor Workers Compensation Act 33 USC §§ 901 et seq. and which hereafter we refer to as LHWCA. BACK TO TEXT

3 Ultimately, the Davis court concluded that the state of Washington’s workers’ compensation statute could be applied in the case of a steel worker who drowned while loading pieces of a dismantled drawbridge onto a barge in navigable waters. The U.S. Supreme Court reversed the holding of the Washington Supreme Court. The Washington Supreme Court held that the federal Constitution barred the application of the state’s workers’ compensation scheme to a worker injured in navigable waters. The Court reversed the Washington Supreme Court and noted inter alia, that no federal administrative hearings were held to determine whether the federal Longshore Act should apply. Davis, supra, pp. 256-57. BACK TO TEXT

4 Our own appellate court reasoned similarly in McGowan v. General Dynamics Corp./Elec. Boat Div., 15 Conn. App. 615 (1988) aff’d, 210 Conn. 580 (1989). There the court relied on Sun Ship’s proscription against double recovery and to the 1984 amendments to the LHWCA codified at 33 U.S.C. § 903 (e) providing, “Notwithstanding any other provisions of law, any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under this chapter pursuant to any other workers’ compensation law . . . shall be credited against any liability imposed by this chapter.” The McGowan court held an employer was permitted a credit for total amounts paid under the LHWCA for subsequent awards made pursuant to the Connecticut’s Workers’ Compensation Act. BACK TO TEXT

5 See also Director, Office of Workers’ Compensation Programs, United States Department of Labor v. Perini North River Associates, 459 U.S. 297, 309, 103 S.Ct. 634, 643, 74 L.Ed.2d 465 (1983). BACK TO TEXT

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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