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12/29/95 ALFRED B. WELLS v. INDUSTRIAL COMMISSION

December 29, 1995

ALFRED B. WELLS, APPELLANT/CROSS APPELLEE,
v.
THE INDUSTRIAL COMMISSION ET AL., (CERES TERMINALS, INC., APPELLEE/CROSS APPELLANT).



Appeal from the Circuit Court of Cook County. No. 94 L 50100. Honorable Alexander White, Judge, Presiding.

The Honorable Justice Colwell delivered the opinion of the court: McCULLOUGH, P.j., and Rakowski, Holdridge, and Rarick, JJ., concur.

The opinion of the court was delivered by: Colwell

The Honorable Justice COLWELL delivered the opinion of the court:

Appellant, Alfred Wells, appeals the Industrial Commission's findings relating to the appellant's average weekly wage. Appellee/Cross appellant, Ceres Terminals, Inc. ("Ceres"), appeals the Commission's finding that it has subject matter jurisdiction to consider appellant's application for benefits and enter an award in favor of appellant. Ceres contends that, at the time of the injury, appellant was a longshoreman who was injured while performing his duties over navigable waters of the United States and, therefore, appellant can only be compensated under the provisions of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. sec. 901, et seq.) We agree with Ceres' contention and, therefore, we reverse.

The facts in the present case are not in dispute. Ceres is a stevedore company that provides longshoring services for vessels at Iroquois Landing at 95th Street & the lakefront in Chicago, Illinois. Ceres is a land-based operation. Appellant is a 68 year-old longshoreman who has worked for Ceres and other stevedores. A longshoreman is a person who loads and unloads ships. Appellant was assigned to jobs as work became available by the International Longshoremen's Association, a land-based operation. The International Longshoremen's Association assigned appellant to work for Ceres on June 16, 1989. On that date, appellant was performing the job of "dunnage man" in the hold of the ship, the "Little Lillian," working with a fork lift driver loading salvage steel. The Little Lillian was docked at 95th Street and the lakefront in Lake Michigan, a navigable waterway.

Appellant had to work on top of the stack of steel as well as on the floor of the ship. Among other things, appellant had to make sure that each piece of steel was flush and pushed together tightly so that the cargo would not shift during sailing. On June 16, 1989, shortly before noon, the hose broke which operates the hydraulic boom that raises the lift forks up and down. Oil spewed onto the landing area where appellant was working. It was raining at the time and the mixture of rain and oil formed a very slippery surface. Appellant ordered sawdust and an oil compound for the floor of the area where he was working. The sawdust and oil compound, as well as a new forklift, arrived at the area where appellant was working at 1:30 or 2:00 p.m. Appellant slipped off the top of the stack where he was working at 4:00 p.m. and fell onto cargo that was in the hatch of the ship. Appellant was severely injured from the fall. He filed claims for workers' compensation coverage under the Illinois Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1992)) and under the Longshore and Harbor Workers' Compensation Act (33 U.S.C. sec. 901 et seq.)

In the proceedings under the Illinois Workers' Compensation Act, the arbitrator found that the Illinois Industrial Commission had jurisdiction over appellant's injury. He calculated the average weekly wage and awarded TTD benefits of 44-2/7 weeks, medical expenses, and PPD of 25% loss of use of his right arm and 20% loss of use of his right leg. The Commission reviewed the arbitrator's decision as to the issues of (a) jurisdiction; (b) causal relation (c) the nature and extent of appellant's TTD and PPD disability, and (d) appellant's average weekly wage. The Commission modified the arbitrator's decision as to appellant's average weekly wage, but otherwise affirmed the arbitrator's decision.

The circuit court, upon review, found that the Commission has subject matter jurisdiction over the above matter and that the Commission's re-calculation of appellant's average weekly wage was not against the manifest weight of the evidence. However, the circuit court found that the Commission's TTD and PPD rates of $105.50 and $84.38, respectively, were contrary to the law. The circuit court found that the correct amounts are $120.55 for TTD and $108.49 for PPD.

We first address Ceres' contention that the Commission lacked subject matter jurisdiction to consider appellant's application for benefits. Ceres contends that, at the time of the injury, appellant was a longshoreman who was injured while performing his duties over navigable waters of the United States; that injuries sustained by appellant are within the exclusive jurisdiction of the Longshore and Harbor Workers' Compensation Act; and, therefore, appellant can only be compensated under the provisions of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. sec. 901, et seq.) This issue is of first impression in Illinois. In order to properly address Ceres' contention, we feel compelled to review the line of cases demarcating between federal and state jurisdiction.

Federal courts have traditionally enjoyed exclusive jurisdiction over claims involving maritime workers. (See Sun Ship, Inc. v. Pennsylvania (1980), 447 U.S. 715, 65 L. Ed. 2d 458, 100 S. Ct. 2432. In 1917, the United States Supreme Court held, in Southern Pacific Co. v. Jensen (1917), 244 U.S. 205, 61 L. Ed. 1086, 37 S. Ct. 524, that it was unconstitutional for the states to apply their workers' compensation statutes to longshoremen injured on the seaward side of the line between the land and the sea because it would interfere with the federal policy of uniform maritime law. The line of demarcation between the land and sea became known as the " Jensen line." Jensen left longshoremen injured on the seaward side of the pier without a compensation remedy, while longshoremen injured on the pier enjoyed the protection of state workmens' compensation laws. ( State Industrial Comm'n v. Nordenholt Corp. (1922), 259 U.S. 263, 66 L. Ed. 933, 42 S. Ct. 473.) Immediately after the Jensen decision Congress twice attempted to fill this gap by passing legislation that would have extended state compensation remedies beyond the Jensen line. The Supreme Court, however, declared these statutes unconstitutional as an unlawful delegation to the states of congressional power. ( Washington v. Dawson & Co. (1920), 264 U.S. 219, 44 S. Ct. 302, 68 L. Ed. 646; Knickerbocker Ice Co. v. Stewart (1920), 253 U.S. 149, 64 L. Ed. 834, 40 S. Ct. 438.) At the same time, the Supreme Court began to narrow the Jensen doctrine by providing, in some cases, that state remedies are available to maritime claimants because their circumstances are maritime, yet, local in character. Western Fuel Co. v. Garcia (1921), 257 U.S. 233, 66 L. Ed. 210, 42 S. Ct. 89; Grant Smith-Porter Ship Co. v. Rohde (1922), 257 U.S. 469, 66 L. Ed. 321, 42 S. Ct. 157; see also Sun Ship, 447 U.S. at 717.

Under the maritime-but-local doctrine, if the employment of an injured worker was determined to have no direct relation to navigation or commerce, and the application of local law would not materially affect the uniformity of maritime law, then the employment would be characterized as maritime-but-local, and the state could provide a compensation remedy. ( Director, Office of Workers' Compensation Programs, United States Dept. of Labor v. Perini North River Assoc. et al. (1983), 459 U.S. 297, 303, 74 L. Ed. 2d 465, 103 S. Ct. 634; see also Rohde, 257 U.S. 469, 66 L. Ed. 321, 42 S. Ct. 157 (holding that carpenter injured while working on partially completed vessel located in navigable waters may proceed under state's workers' compensation statutory scheme because neither carpenter's general employment, nor his activities at the time of his injury had any direct relation to navigation or commerce, and the application of local law would not materially affect the uniformity of maritime law).) If the employment could not be characterized as maritime-but-local, then the injured employee would be left without a compensation remedy. Perini, 459 U.S. at 303.

Congress was finally successful in 1927 in extending protection to maritime workers excluded by Jensen by enacting a federal compensation law, the Longshore and Harbor Workers' Compensation Act ("LHWCA") (33 U.S.C. sec 901, et seq.). That statute provided, in pertinent part, that compensation was payable under the LHWCA for an injury occurring upon the navigable waters of the United States only if recovery through workmens' compensation proceedings could not validly be provided by state law. After the LHWCA was enacted, it became problematic to determine whether the federal or state compensation scheme applies under a given factual situation. ( Sun Ship, 447 U.S. at 718.) As Mr. Justice Brennan pointed out in Sun Ship, "the boundary at which state remedies gave way to federal remedies was far from obvious in individual cases. As a result, the injured worker was compelled to make a jurisdictional guess before filing a claim; the price of error was unnecessary expense and possible foreclosure from the proper forum by the statute of limitations." Sun Ship, 447 U.S. at 718.

This jurisdictional dilemma was alleviated in Davis v. Department of Labor (1942), 317 U.S. 249, 87 L. Ed. 246, 63 S. Ct. 225. In Davis, a steel worker drowned in navigable waters after falling off a barge while helping to load the barge with pieces of steel from a drawbridge that was being dismantled. ( Davis, 317 U.S. 249, 250-51, 87 L. Ed. 246, 63 S. Ct. 225.) The widow of the deceased steel worker sought benefits under Washington's workers' compensation statute. The Washington Supreme Court held that the state could not, consistent with the Federal Constitution, make an award under its state compensation law to the widow of a workman drowned in a navigable river. ( Davis, 317 U.S. at 250-51.) The Supreme Court reversed, not because the employment was maritime-but-local, but because of a new concept it articulated, the "twilight zone." ( Davis, 317 U.S. at 256.) The Court recognized that despite its many cases involving the maritime-but-local doctrine, it had been unable to give any guiding, definite rule to determine the extent of state power in advance of litigation. ( Davis, 317 U.S. at 253.) To remedy this jurisdictional dilemma, the court created the "twilight zone." The Supreme Court held that the boundary between federal and state schemes was not a precise line but rather a "twilight zone," and that in doubtful cases, an injured worker could elect a federal or state remedy. ( Davis, 317 U.S. at 256) (emphasis added.) Davis effectively established a regime of concurrent jurisdiction within the "twilight zone." Sun Ship, 447 U.S. at 718.

We note that the concurrent jurisdiction provided by the twilight zone does not apply to employees who are engaged in traditional maritime employment and are injured over navigable waters because those situations are not doubtful cases. (See Davis, 317 U.S. at 256; Noah v. Liberty Mutual Insurance Co. (1959), 267 F.2d 218; Flowers v. Travelers Insurance Co. (1958), 258 F.2d 220; Globe Indemnity Co. v. C.D. Calbeck et al. (D. Tex. 1959), 230 F. Supp. 9; Ellis v. Travelers Insurance Co. (1961) 241 La. 433, 129 So. 2d 729; Wellsville Terminals Co. v. Workmen's Compensation Appeal Board (1993), 534 Pa. 333, 632 A.2d 1305; Wixom v. Travelers Insurance Co. (1978), 357 So. 2d 1343.) For example, in Wixom, the plaintiff was an ironworker who was performing ship repairs aboard a ship over navigable waters. The plaintiff was injured while performing the ship repairs and attempted to obtain benefits under the state's workers' compensation law. The Wixom court held that this case fell within the exclusive jurisdiction of the LHWCA. ( Wixom, 357 So. 2d at 1344.) In reaching its decision, the ...


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