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McCoy v. Industrial Commission

September 26, 2002

MARY MCCOY, WIDOW OF ARTHUR MATTHEWS, DECEDENT, AND IRENE PARKER, AS GUARDIAN FOR ANTHONY HAMPTON, APPELLANTS,
v.
THE INDUSTRIAL COMMISSION, ET AL., (CERES TERMINALS, INC., APPELLEE).



Appeal From The Circuit Court of Cook County Honorable Alexander White, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

UNPUBLISHED

Mary McCoy, the surviving spouse of Arthur Matthews (decedent), and Irene Parker, as guardian for Anthony Hampton, appeal from the circuit court's order confirming a decision of the Industrial Commission (Commission) denying their consolidated claims for benefits under the Workers Compensation Act (820 ILCS 305/1 et seq.(West 1996)) against the decedent's employer, Ceres Terminals, Inc. (Ceres). The Commission based its denial of the claims upon its finding that it lacked jurisdiction to hear them. For the reasons which follow, we reverse the circuit court's order and remand to this cause to the Commission for further proceedings.

On October 21, 1998, McCoy filed an application for adjustment of claim under the Act, seeking benefits from Ceres. That same day, Irene Parker, as guardian for Anthony Hampton, alleged to be the decedent's son, also filed an application for adjustment of claim under the Act, seeking benefits from Ceres. Subsequently, after DNA testing excluded the possibility that the decedent fathered Hampton, Parker amended her claim and proceeded upon the theory that the decedent stood in loco parentis to Hampton. The two claims were consolidated. The following facts are taken from the evidence presented at the arbitration hearing conducted in connection with the consolidated claims.

Robert Leonard testified that he is a longshoreman and a business agent for Local 19 of the International Longshoreman Association, of which the decedent was a member. A longshoreman's duties include loading and unloading ships. When an employer needs longshore workers, it calls Local 19 and requests them. Jobs are assigned on the basis of seniority and type of skills.

On September 25, 1998, the decedent was working for Ceres, a stevedoring company. On that date, Valerie Barber, an employee of A&R Security, was assigned to provide security for a ship docked in Lake Michigan in the vicinity of 95th Street & Ewing Avenue. Barber's evidence deposition was introduced into evidence at the hearing.

Barber testified that, around 4 p.m., the decedent was on the dock at the stern of the ship, in a squatting position, untying the ship's lines from a cleat as the ship was about to leave. The ropes were tangled up around the cleat, and the decedent was trying to untangle them. In the incident report she submitted to her employer, dated October 1, 1998, Barber stated that, while the decedent was squatted down attempting to untangle the ropes, his foot slipped beneath him and he fell into the water. At her deposition, Barber testified that, as the decedent was attempting to untangle the rope, members of the ship's crew were pulling in the rope, and the decedent fell face down into the water. Asked what caused the decedent to fall into the water, Barber responded:

"I think when they [were] pulling the rope back up on the ship they had - the rope was loosened and as they [were] pulling the rope around the thing he was trying to untangle the rope and his leg had slipped and they [were] pulling it and that is how he went down in that water."

Upon further questioning, Barber again testified that the decedent did not get tangled in the ropes at all. She testified that, as the decedent was attempting to untangle the ropes from the cleat, people on the ship were winding up the ropes "and as they *** [were] pulling it up, he slipped and fell." Barber acknowledged that, on March 25, 1999, counsel for the claimants interviewed her regarding the incident. Based on her statements, counsel asked her if he could add the following handwritten sentence to her typewritten incident report: "The line from the freighter pulled him [the decedent] into the water, I saw it happen." Barber acquiesced and initialed the change. Barber testified that the statement which she allowed counsel to add to her incident report is true. Later, when asked if the rope dragged the decedent into the water, Barber stated: "I think if they wouldn't have been pulling the rope back to the ship he would have been still up there."

Barber testified that she did not know whether the decedent hit anything as he fell into the water. After falling in the water, he surfaced "head up fighting for his life." According to Barber, the decedent was not wearing a life jacket and appeared to be unable to swim. The post-mortem examination report and the death certificate both list the cause of the decedent's death as drowning.

On July 14, 2000, the arbitrator issued a decision in which he found that the Longshore and Harbor Workers' Compensation Act (33 U.S.C. §901 et seq. (1998)) provided the exclusive source of jurisdiction over the consolidated claims and denied the claims. The claimants filed a petition seeking review of the arbitrator's decision by the Commission. In a decision issued February 21, 2001, the Commission, with one commissioner dissenting, affirmed and adopted the arbitrator's decision. The claimants sought judicial review, and the circuit court of Cook County confirmed the Commission's decision. This appeal followed.

On appeal, the claimants contend that the Commission erred in finding that it lacks jurisdiction over their consolidated claims for benefits under the Act. The claimants do not contest the fact that Federal jurisdiction over their claims exists pursuant to the LHWCA. Rather, relying on the United States Supreme Court's decisions Davis v. Department of Labor & Industries of Washington, 317 U.S. 249, 87 L. Ed. 246, 63 S. Ct. 225 (1942) and Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 65 L. Ed. 2d 458, 100 S. Ct. 2432 (1980), they argue that their claims fall within a zone of concurrent Federal and state jurisdiction.

Article III, section 2 of the United States Constitution provides that Federal courts shall have jurisdiction over "all Cases of admiralty and maritime Jurisdiction". U.S. Const. art. III, sec. 2. In 1917, prior to the enactment of the LHWCA, the United States Supreme Court issued its decision in Southern Pacific Co. v. Jensen, 244 U.S. 205, 217-18, 61 L. Ed. 1086, 1099, 37 S. Ct. 524, 529-30 (1917), where it held that state workers' compensation laws could not constitutionally be applied to workers injured on navigable waters as such would conflict with general maritime law, which fell within the jurisdiction of Federal courts. This left workers injured on the navigable water without a source of compensation. Over time, the Court developed the "maritime but local" exception to the rule announced in Jensen. Pursuant to this exception, a worker injured on navigable waters could receive compensation under state laws if his employment had no direct connection to navigation or commerce and the application of the local compensation law would not materially affect the uniformity of maritime law. Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 477, 66 L. Ed. 321, 324, 42 S. Ct. 157, 158 (1922); Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 66 L. Ed. 210, 214, 42 S. Ct. 89, 90 (1921).

Significantly, although the Jensen rule provided that Federal courts had exclusive jurisdiction over claims for injuries occurring on the water, state laws could be applied where the injury occurred on land. State Industrial Comm'n of State of New York v. Nordenholt Corp., 259 U.S. 263, 272-76, 66 L. Ed. 933, 936-38, 42 S. Ct. 473, 474-75 (1922). When the LHWCA *fn1 was enacted in 1927, it provided coverage for "disability or death [which] results from an injury occurring upon the navigable waters of the United States (including any dry dock)" if coverage could not validly be provided through state workers' compensation laws. 33 U.S.C. §903(a) (1928). Thus, a maritime employee injured on land was still afforded no protection under Federal law. Further, as the LHWCA provided coverage only if no state coverage existed, employees who could recover under state law, such as those falling within the maritime but local exception, could not recover under the LHWCA. Director, Office of Workers' Compensation Programs, United States Department of Labor v. Perini North River Associates, 459 U.S. 297, 307, 74 L. Ed. 2d 465, 474, 103 S. Ct. 634, 642 (1983). As the Supreme Court later observed, under certain ...


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