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

CASE NO. 4896 CRB-4-04-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 19, 2006

ANTHONY DiBLASE

CLAIMANT-APPELLANT

v.

LOGISTEC OF CT., INC.

EMPLOYER

and

LAMORTE BURNS & CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by David A. Kelly, Esq., Montstream & May, L.L.P, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents were represented by Neil Ambrose, Esq., Letizia, Ambrose & Falls, P.C., One Church Street, New Haven, CT 06510.

This Petition for Review from the December 7, 2004 Finding & Dismissal of the Commissioner acting for the Fourth District was heard August 26, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. Since the advent of Workers’ Compensation in Connecticut almost a century ago, tension has existed between the statutes governing the state compensation system and centuries of common law regarding admiralty. The result has been those employed upon the water have had a different legal structure to redress their injuries than those injured upon land. The present dispute provides the latest chapter in determining whether a claimant involved in the maritime industry, and entitled to its federal statutory and common law remedies for injured workers, also can obtain redress pursuant to Chapter 568.

The claimant, Anthony DiBlase, was employed as a stevedore by Logistec Connecticut at their Bridgeport marine terminal. His working duties involved labor performed both on the pier and in a warehouse and aboard ships being unloaded while in navigable waters. On December 21, 1999, the claimant injured his right shoulder at work. Following a diagnosis of arthritis and labral degeneration, he had surgery on January 23, 2000. On August 26, 2000, the claimant injured his left shoulder at work, was diagnosed with impingement syndrome and had surgery November 14, 2000. The exact geographic location of where these injuries occurred becomes paramount in determining this appeal.

The trial commissioner determined that there were two substantial causes to the claimant’s injuries a) the 1999 injury “was substantially caused by operating a forklift over the uneven floors of cargo ships he worked inside of and b) the 2000 injury “was substantially caused when he was pulling himself up on a ladder while climbing out of a cargo ship.” The location of both events was over navigable waters, and not on land.

Therefore, notwithstanding the execution of a Voluntary Agreement in 2002 for the 2000 injury, the trial commissioner determined that the location of the injuries deprived the Commission of subject matter jurisdiction over these matters, and dismissed the claims on December 7, 2004.1 The claimant appealed from that dismissal.2

The claimant’s appeal is problematic because the factual scenario here is indistinguishable from the facts in Southern Pacific Railroad v. Jensen, 244 U.S. 205 (1917). In Jensen, the unfortunate victim died when his forklift collided with a hatch above the navigable waters of New York harbor. The U.S. Supreme Court applied Article I § 8 and Article III § 2 of the constitution and determined these Articles created exclusive federal jurisdiction over all cases of admiralty and maritime jurisdiction. New York state law had no jurisdiction over the incident and held “it must now be accepted as settled doctrine that in consequence of these provisions Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country.” Id., p. 215.

Our Supreme Court a few years later applied the U.S. Supreme Court precedent of Jensen in Leszczymski v. Radel Oyster Co., 102 Conn. 511 (1925). The claimant’s factual circumstances also are closely aligned with Leszczymski. In both cases, the claimant was injured while working on a boat docked in Bridgeport harbor. The Connecticut Supreme Court held that the Jensen decision left the state with no jurisdiction over injuries occurring on navigable waters while engaged in maritime work. Id., p. 528.

The initial clarity of the Jensen and Leszczymski rulings has become blurred through the passage of time. Congress responded by enacting the federal Longshoremen’s and Harbor Workers’ Act (presently, 33 USC § 901 et seq., aka the “Longshore Act”) creating a federal compensation structure for those employees not under state workers’ compensation laws.3 Following the enactment of the Longshore Act, a series of judicial decisions created a new “twilight zone” of concurrent jurisdiction between state and federal compensation laws. See Davis v. Department of Labor, 317 U.S. 249 (1942). In Davis, the concept of “maritime but local” was introduced for land-based workers in non-maritime trades (i.e. a steel worker) who were injured while working over navigable waters. In this “twilight zone,” there is both federal and state concurrent jurisdiction.

However, as more fully discussed in our recent opinion in Coppola v. Logistec of CT., Inc., 4781 CRB-3-04-2 (June 24, 2005) the concurrent jurisdiction has not been generally extended to claims where a worker performs traditional maritime work while the ship floats in navigable waters. A 1972 amendment to the Longshore Act extended its jurisdiction landward, and as the Supreme Court held in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980) the twilight zone of concurrent jurisdiction included land-based shipyard workers.4 See Lafayette v. General Dynamics Corp./Elec. Boat Div., 255 Conn. 762 (2001). There is no Connecticut precedent applying the holding of Sun Ship to extend the “twilight zone” of concurrent jurisdiction to traditionally maritime workers injured over navigable waters, indeed in our decision in Coppola we cited precedent from other jurisdictions rejecting such an application. See Wells v. Industrial Comm’n, 277 Ill. App.3d 379 (1995), 660 N.E.2d 229, where as in the present case, jurisdiction for a longshoreman injured while aboard a ship was held to be exclusively federal.

The Illinois decision in Wells is not binding precedent on Connecticut courts, which may decide to review recent federal case law further blurring the once bright “Jensen line” placing injuries on navigable waters outside the jurisdiction of state compensation laws.

The U.S. Supreme Court last revisited its precedent of Jensen in American Dredging Co., v. Miller, 510 U.S. 443 (1994). In American Dredging, a sailor injured while working on a tugboat on the Delaware River filed suit in Louisiana state court. The appellants cited Jensen as supportive of their effort to dismiss the case based on the principle of forum non conveniens. Their position was that permitting plaintiffs to assert claims in the state courts of their choice would contravene the holding of Jensen and “works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of the law . . . .”

Writing for the majority, Justice Scalia determined the doctrine of forum non conveniens “neither originated in admiralty nor has exclusive application there.” American Dredging, supra, p. 450. Justice Scalia also was not persuaded by the argument the appellee’s position contravened the Jensen paradigm of uniform federal jurisdiction, holding “the requirement of uniformity is not, however, absolute.” Id., p. 451.

In a concurring opinion, Justice Stevens questioned the rationale of deciding to uphold nonuniform state jurisdiction over an admiralty case while leaving Jensen in place. “In my view, Jensen is just as untrustworthy a guide in an admiralty case as Lochner v. New York, 198 U.S. 45 (1905) would be in a case under the Due Process Clause.” In a footnote, Justice Scalia responded neither party had argued that Jensen should be overruled and “since we ultimately find that the Louisiana law meets the standard of Jensen anyway, we think it inappropriate to overrule Jensen in dictum, and without argument or even invitation.” American Dredging, supra, p. 447.5

American Dredging has left Jensen in its own “twilight zone” as clearly the Supreme Court has rejected the bright-line concept that “the States may not impair maritime commerce” American Dredging, p. 452, without providing guidance on whether a state can now assert jurisdiction for compensation claims occurring on navigable water or whether such an action impermissibly impairs maritime commerce.

Recent cases from New York, whose Workers’ Compensation law was ruled void in Jensen, indicate both federal and state courts are rendering decisions as if the central holding of Jensen barring state jurisdiction over maritime workers has been rendered lifeless.

In Mooney v. City of New York, 219 F.3d 123 (2nd Circuit 2000), a seaman working aboard the Staten Island Ferry first submitted claims for state workers’ compensation for his injuries aboard the ferry, and then filed a federal negligence claim under the Jones Act for his injuries. The City held that the prior acceptance of a workers’ compensation award constituted an election of remedies barring further recovery; the claimant held, and the Second Circuit agreed, the absence of a formal award constituting a full and final settlement meant that the claimant had not waived his rights to seek federal remedies, citing the Supreme Court in Southwest Marine, Inc. v. Gizoni, 502 U.S. 81 (1991).

What was not addressed in Mooney in an explicit fashion is that the entire dispute assumed that a traditionally maritime worker injured in navigable waters was indeed within the “twilight zone” of concurrent state and federal jurisdiction and had been entitled to have already received state compensation benefits. The Second Circuit did not cite Jensen, which holding would have caused the claimant’s previous award to have been jurisdictionally barred.

The New York State Court of Appeals has also declined to apply federal maritime law to pre-empt personal injury suits under state law when the injury occurs over navigable waters. In Cammon v. City of New York, 95 N.Y.2d 583, 721 N.Y.S.2d 579 (2000) the plaintiff was injured while working on a floating raft on the East River. Applying the expanding level of “maritime but local” exceptions to Jensen, New York’s highest court held “local regulations that do not affect vessel operations but rather govern liability issues with respect to landowners and contractors within the state, have no extraterritorial effect,” and therefore, do not interfere with uniform maritime law.

This Board is not empowered with the mandate to determine whether valid Connecticut appellate precedent should or should not be overruled, limited or realigned with contemporary precedent from other courts. Our Supreme Court’s holding in Leszczymski, supra, remains precedent which we are compelled to follow. The effect of the federal case law cited therein are interpretive matters entirely delegated to our higher appellate courts. Since the holding in Leszczymski has not been overruled or modified in any material fashion, the trial commissioner’s legal conclusion was sound and must stand.

Claimant has also appealed the trial commissioner’s denial of a Motion to Correct that sought to find the cause of the compensable injuries were due to events that occurred both on land and aboard ship. This seeks to overturn the findings of fact of the trial commissioner, who determined the substantial cause of both shoulder injuries were specific incidents which occurred while the claimant was on navigable waters. The factual finding at issue here is one resulting from the trial commissioner’s assessment of the weight and credibility of the evidence put before him. What weight and credibility should be assigned to the evidence before a trial commissioner is at the very heart of a trial commissioner’s factual determinations. Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000). Sufficient evidence was presented to the commissioner that the compensable injuries were due to specific incidents occurring aboard ship, (for example, July 8, 2003 Transcript, pp. 8 and 11) and we will not substitute our judgment in such matters for that of the trial commissioner.

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

Commissioners Stephen B. Delaney and Leonard S. Paoletta concur.

1 Claimant presents the argument that the execution of the Voluntary Agreement estops the respondents from contesting jurisdiction. However, the issue of subject matter jurisdiction can be raised at any time. Del Toro v. Stamford, 65 Conn. App. 1, 5-7 (2001). This jurisdictional deficiency cannot be waived by the parties. “. . . the doctrine of waiver to which claimant relies cannot avail, since jurisdiction cannot be waived, nor can it be conferred by agreement.” Walsh v. Waldron & Sons, 112 Conn. 579, 584 (1931). BACK TO TEXT

2 Claimant’s counsel filed for extensions of time on December 17, 2004 and March 7, 2005, as well as consenting to a postponement of the hearing on June 17, 2005 therefore elongating the appeal process. BACK TO TEXT

3 The record indicates the claimant has previously filed for benefits under the federal Longshore Act, thus availing himself of his federal remedies. BACK TO TEXT

4 Labor performed adjacent to navigable waters is still a prerequisite to federal jurisdiction under the Longshore Act. In Cunningham v. Director, 377 F.3d 98 (1st Cir. 2004), the First Circuit upheld the rejection of a Longshore Act claim when the worker was employed at an inland annex of the Bath Iron Works (No. 03-1980, August 3, 2004). BACK TO TEXT

5 It may be relevant today that even at the time it was reached; Jensen was not a universally endorsed decision, with four justices dissenting. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: January 25, 2006

Page URL: http://wcc.state.ct.us/crb/2006/4896crb1.htm

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