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SEEKING SOLOMON'S WISDOM :
State Act, Longshore Act or Jones Act
Which to Choose ?
A Coast to Coast Discussion
[Pages 72 to end]
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[Page 72]
- State Coverage (Federal Coverage Only if Rejected By State)
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The maritime worker excluded in Sections 2(3) and 3 of the Longshore
Act, injured on a maritime site either landward or seaward of the Jensen' line.
- Federal Coverage
- The maritime worker not excluded in Sections 2(3) and 3 of the Longshore Act, injured seaward of the Jensen' line whose work was maritime but not local. 251
Now that I have described how an employee may be entitled to pursue either a LHWCA claim or a state claim, I must briefly address an obvious matter: A claimant is not entitled to double recovery. In 1984 Congress added § 3(e) to the LHWCA which provides a statutory credit for any benefits previously received under a state workers' compensation or Jones Act claim arising from the same injury. 252 This provision is consistent with, and codified, prior case law holding that employers are entitled to a credit under the Act for payment made pursuant to a state award for the
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same injury. 253 I should note, however, that a state may provide more favorable benefits that are separate and distinct from LHWCA benefits and, therefore, not subject to offset against LHWCA benefits. 254
As previously discussed, the Supreme Court has held that, absent explicit language in a state statute prohibiting subsequent recoveries, an injured employee may seek benefits under the LHWCA subject to credit for benefits paid under the state statute. 255 Some states, however, are amending their workers' compensation statutes to prevent "double" coverage by destroying concurrent jurisdiction. Currently, four states (New Jersey, Louisiana, Texas and Washington) have statutorily eliminated concurrent jurisdiction for workers' compensation claims covered by the LHWCA. 256
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As an example, the Louisiana statute provides: "No compensation shall be payable in respect to the disability or death of any employee covered by the Federal Employer's Liability Act, the Longshoremen's and Harbor Worker's Compensation Act [sic], or any of its extensions, or the Jones Act." 257 Accordingly, parties must be aware of the requirement and restrictions of the state statute that could affect a claim. Claimant's counsel should be especially aware of when the doors to a state recovery are open and when they are shut.
Although state workers' compensation schemes and the LHWCA share concurrent jurisdiction, that in and of itself does not eliminate the issue of collateral estoppel. 258 Initially, I note that it is well-settled that the mere acceptance of payments under a state act does not constitute an election of remedies barring a subsequent claim under the LHWCA. 259 As noted, the LHWCA provides that, in such situations, an employer will be given a credit for any sums paid under the state
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act. 260 Once an injured-employee files a claim in more than one forum, however, the issue and defense of collateral estoppel may arise.
Essentially, the rule of collateral estoppel provides that when an issue of ultimate fact has been determined by a valid judgment, that issue cannot be re-litigated between the same parties in future litigation. Collateral estoppel applies only after the entry of a final order that terminates the litigation between the parties on the merits of the case. 261 Further, collateral estoppel applies to an administrative agency acting in a judicial capacity resolving disputed issues of fact properly before it, issues which the parties have had an adequate opportunity to litigate. 262 As a general rule, factual findings of a state administrative tribunal are entitled to collateral estoppel effect in other state or federal administrative tribunals. 263 If an issue is a mixed question of fact and law, collateral estoppel
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effect can only be given to such questions when the legal standards are the same in the two proceedings. 264 Further, collateral estoppel will not be applied where the burdens imposed on the parties are different. 265 The Benefits Review Board has also noted that collateral estoppel does not apply to a settlement agreement where matters were not actually litigated or adjudicated by the state commission. 266
One of the most recent cases addressing the issue of collateral estoppel in the state compensation versus LHWCA area is the First Circuit's decision in Bath Iron Works Corporation v. Director, OWCP [Acord]. 267 Acord involved a worker who injured his upper-body and knee while working at Bath Iron Works. The plaintiff initially sought and received benefits pursuant to the aine Workers' Compensation statute. 268 In June of 1987, the plaintiff allegedly re-injured his
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knee. Subsequently, employer's insurance company petitioned the Maine workers' compensation agency to declare that it had no continual liability for the June 1987 injury. Following an evidentiary proceeding, the Maine commissioner held that the insurance company had proven that the June 1987 incident did not permanently contribute to plaintiff's condition. 269
Subsequently, the plaintiff brought an action under the LHWCA contending that he was totally permanently disabled based on the June 1987 injury. 270 The employer raised several defenses, including the defenses of collateral estoppel and statute of limitations. I was the Administrative Law Judge assigned to hear the case and I awarded permanent total disability, rejecting the employer's defenses. 271 The Board took no action on the appeal and subsequently the employer appealed to the First Circuit. 272 The First Circuit reversed holding that the federal award was barred by collateral estoppel.
The First Circuit began its discussion, noting that federal courts and federal agencies must give state agency's fact-finding decisions the same preclusive effect as a state court decision. In this regard, the court noted Supreme Court decisions addressing this issue, provided that the state agency
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have acted in an adjudicative capacity. 273 Additionally, the court noted that "several circuit decisions have held that a federal agency is normally bound to respect findings by another agency acting within its competence." 274 Further, the court noted that the "Benefits Review Board itself has declared that collateral estoppel effect is to be given under the Longshore Act to appropriate findings of other state or federal administrative tribunals.'" 275
The court next cautioned that collateral estoppel is only appropriate where the first determination is reached after a full and fair opportunity between the parties to litigate the issue. 276 The court stated, "It is quite true that collateral estoppel effect may be denied because of differences in burden of proof (for example, where the victor in the first case has a greater burden in the second)." 277 The court provided that while "differences in the legal standards pertaining to two
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proceedings may defeat the use of collateral estoppel," the mere fact that the LHWCA is construed more "liberally" than state acts will not. 278 The Court was careful to note that while the LHWCA and state acts may differ on separate and non-relevant issues, the real focus should concern the specific issue presented in the case. For example, in Acord , the facts were that Maine law and federal law differed where a later job-related injury aggravates an earlier one. Nevertheless, the court found that the distinction did not affect the question of whether the June 1987 injury (although an aggravation) caused permanent injury to plaintiff. 279
Therefore, the lesson to be drawn from Acord is to analyze exactly what is at issue, and determine whether that has already been determined in an adjudicative setting. If so, the state agency determination could result in a collateral estoppel defense to LHWCA liability. Otherwise, in light of the Sun Ship announcement of concurrent jurisdiction, an action in both forums is permitted with, of course, a credit to the employer for any amounts paid. Litigants, however, must be careful to know the issues under both state and federal law. Due to the fact that an administrative law judge must give a state agency the same preclusive effect it would be entitled to under state law, 280 the parties must carefully analyze the state law on the particular issue. For example, in Acord the State of aine treated an agency finding as a proper basis to preclude litigation. Therefore, the collateral estoppel issue requires a sharp mind, coupled with a great deal of background preparation.
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In my introduction, I noted Judge Wood's comment, "We have made a labyrinth and got lost in it." 281 I hope that this presentation has served to organize the complex questions and highlight the important issues faced by maritime counsel today. Often time you will be confronted by a client who was injured, or potentially liable for an employee's injury, in circumstances that do not clearly fall under one of the three statutory schemes discussed. In such cases maritime counsel must carefully analyze the facts in light of both federal and state law in order to determine which is the proper forum for recovery, keeping in mind the possibility of alternative grounds for recovery. Further, if your client either receives or pays out benefits other than voluntarily, it is important to be aware of any potential judicial estoppel or credit issues that could arise and hinder, or prevent, subsequent litigation. Although this area of the law has a complex and "tortured history," maritime counsel, with the right tools, should be able to steer their clients out of the labyrinth, towards a clearer understanding of maritime law.
251 Concurrent Jurisdiction: After the Sun Ship Decision , 4 Longshore Newsletter 2, 3 (1986).
252 33 U.S.C. § 903(e). The actual language provides, in pertinent part: "any amounts paid to an employee for the same injury, disability, or death for which benefits are claimed under this Act pursuant to any other workers' compensation law or section 20 of the Act of March 4, 1915 . . . shall be credited against any liability imposed by this Act." 33 U.S.C. § 903(e). The Employer's credit should be based on the actual amount of compensation paid and not an amount based on the percentage of injury for which the claimant was previously compensated. Brown v. Bethlehem Steel Corp. , 19 BRBS 200, 204 (1987), 20 BRBS 26 (1987) (Decision and Order on reconsideration), aff'd in part and reversed sub nom Director, OWCP v. Bethlehem Steel Corp. , 868 F.2d 759, 22 BRBS 47 (CRT) (5th Cir. 1989).
253 Calbeck v. Travelers Insurance Co ., 370 U.S. 114 (1962). While Bouford v. Bath Iron Works Corp ., also recognizes concurrent jurisdiction and acknowledges that the employee cannot receive a double recovery, the court denied a credit to the Employer for Claimant's work-related unscheduled back injury because there was no double recovery as permanent partial disability benefits under the Act compensated the employee for loss of wage-earing capacity and the state award of benefits for permanent impairment for the same unscheduled injury provided superior, separate and distinct compensation for physical consequences of that injury. Bouford v. Bath Iron Works Corp ., 514 A. 2d 470 (Me. 1986), cert. denied , 479 U.S. 1065 (1987).
254 Bouford v. Bath Iron Works Corp. , 514 A.2d 470 (Me. 1986), cert. denied , 479 U.S. 1065 (1987).
255 Industrial Comm v. cCartin , 330 U.S. 622 (1947); Thomas v. Washington Gas Light Co. , 448 U.S. 261, 12 BRBS 828 (CRT) (1980).
256 La. Rev. Stat. Ann. § 23:1035.2 (West 1997); N.J. Stat. Ann. § 34:15-36 (West 1997); Tex. Lab. Code Ann. § 406.091 (West 1997); Wash. Rev. Code Ann. 51.12.100 (West 1997).
257 La. Rev. Stat. Ann. § 23:1035.2 ( West 1997).
258 See Bath Iron Works Corp. v. Director, OWCP [Acord], 125 F.3d 18, 21 n.1 (1st Cir. 1997) ("[C]oncurrnet jurisdiction, and even the possibility of successive awards, do not tell one anything about collateral estoppel") (citing Thomas v. Washington Gas Light Co. , 448 U.S. 261, 280-82 (1980)).
259 See Calbeck v. Travelers Ins. Co. , 370 U.S. 114 (1962); Holland v. Harrison Bros. Dry Dock & Repair Yard , 306 F.2d 369, 373 (5th Cir. 1962).
260 33 U.S.C. § 903(e); Calbeck v. Travelers Ins. Co. , 370 U.S. 114 (1962).
261 Firestone Tire & Rubber Co. v. Risjord , 449 U.S. 368, 373 (1981); St. Louis Iron Mountain & Ry. Co. v. Southern Express Co. , 108 U.S. 24, 28-29 (1883).
262 United States v. Utah Constr. & Mining Co. , 384 U.S. 394, 422 (1966). In University of Tennessee v. Elliott , the Court found that the purpose behind the Full Faith and Credit Clause:
- is served by giving preclusive effect to state administrative factfinding rather than leaving the courts of a second forum, state or federal, free to reach conflicting results. Accordingly, we hold that when a state agency acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,' . . . federal courts must give the agency's fact finding the same preclusive effect to which it would be entitled in the State's court.
University of Tennessee v. Elliott , 478 U.S. 788, 799 (1986) (citations omitted).
263 See Thomas v. Washington Gas Light Co. , 448 U.S. 261, 281, 12 BRBS 828 (1980) ("the factfinding of a state administrative tribunals are entitled to the same res judicata effect in the second State as findings by a court"); see also Smith v. ITT Continental Baking Co. , 20 BRBS 142 (1987).
264 See Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP [Jenkins], 583 F.2d 1273, 8 BRBS 723 (4th Cir. 1978), cert. denied , 440 U.S. 915 (1979).
265 Id. at 1279. The Jenkins Court stated:
- Relitigation of an issue is not precluded by the doctrine of collateral estoppel where the party against whom the doctrine is invoked had a heavier burden of persuasion on that issue in the first action than he does in the second, or where his adversary has a heavier burden in the second action than he did in the first.
Id.
266 Dixon v. John J. cMullen & Assoc. , 13 BRBS 707 (1981).
267 125 F.3d 18 (1st Cir. 1997).
268 Id. at 19.
269 Id. at 20. In September 1990, this decision was affirmed by the commission's appellate division.
270 Id.
271 Id.
272 Id.
273 See University of Tennessee v. Elliott , 478 U.S. 788, 799 (1986) ("federal courts must give the [state] agency's fact-finding the same preclusive effect to which it would be entitled in the State's courts"); United States v. Utah Constr. & Mining Co. , 384 U.S. 394, 422 (1966) (requiring that state agency act in adjudicative capacity).
274 West Helena Sav. & Loan Assoc. v. Federal Home Loan Bank Bd. , 553 F.2d 1175, 1180-81 (8th Cir. 1977); Safir v. Gibson , 432 F.2d 137, 143-44 (2d Cir.), cert. denied , 400 U.S. 850 (1970).
275 Bath Iron Works Corp. v. Director, OWCP [Acord], 125 F.3d 18, 21 (1st Cir. 1997) (quoting Barlow v. Western Asbestos Co. , 20 BRBS 179, 180 (1988)); see also Vodanovich v. Fishing Vessel Owners Marine Way, Inc. , 27 BRBS 286, 290-92 (1994) (holding that because the state court applied the same standard for determining Claimant's status as "borrowed" employee as that applied under the Act, the state court's finding should be accorded collateral estoppel effect and the parties could not re-litigate the issue).
276 Bath Iron Works Corp. v. Director, OWCP [Acord], 125 F.3d 18, 22 (1st Cir. 1997).
277 Id. at 21 (citing Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP , 583 F.2d 1273, 1278-79 (4th Cir. 1978), cert. denied , 440 U.S. 915 (1979)).
278 Id. at 22.
279 Id. at 22.
280 University of Tennessee v. Elliott , 478 U.S. 788, 799 (1986).
281 See supra note 7, and accompanying text.