Longshore and Harbor Workers’ Compensation Act Concurrent Jurisdiction Update

1. Longshore and Harbor Workers’ Compensation ActConcurrent Jurisdiction Update D. Alan Westerlund, Jr. awesterlund@trask-howell.com (843) 881-8751 www.trask-howell.com

2. Longshore and Harbor Workers’ Compensation Act (LHWCA or Longshore Act) Enacted in 1927 Covers maritime workers, including most dock workers, not otherwise covered by the Jones Act Administered by the Division of Longshore and Harbor Workers’ Compensation, a division of the US Department of Labor See 33 U.S.C. §§ 901-930

3. History 1911 – States begin enacting workers’ compensation laws 1917 – U.S. Supreme Court holds in Southern Pacific Ry. Co. v. Jensen that state workers’ compensation laws do not cover workers injured over navigable waters 1927 – Longshore Act enacted 1935 – S.C. Industrial Commission created

4. History 1972 – Longshore Act amended to extend coverage landward for maritime workers 1980 – U.S. Supreme Court rules in Sun Ship v. Pennsylvania that the Longshore Act supplements state workers’ compensation laws, rather than supplants them

5. Concurrent Jurisdiction Workers’ compensation claims are covered simultaneously by the Longshore Act and by state workers’ compensation law in states with concurrent jurisdiction. Approximately 20 states in the U.S. with concurrent jurisdiction. South Carolina is a concurrent jurisdiction state.

6. Concurrent Jurisdiction • Benefits of concurrent jurisdiction for Claimant: • Ability to pursue two claims • Ability to receive benefits under the Longshore Act (higher max comp. rate; right to choose doctor; differences in scheduled members) • Ability to request a hearing under the S.C. Act (much faster scheduling of hearing)

7. Concurrent Jurisdiction • Problems with concurrent jurisdiction for Employers and Carriers: • Two insurance policies • Multiple attorneys to defend claims, some from out of state • Occasionally redundant discovery, benefits paid, attorney fees • Different medical fee schedules

8. Concurrent Jurisdiction • Problems with concurrent jurisdiction for Employers and Carriers: • Different filing requirements • Different discovery procedures • Different defenses • Different settlement procedures (clincher vs. 8(i))

9. Concurrent Jurisdiction No double recovery pursuant to 33 U.S.C. § 903(e): “Notwithstanding any other provision of law, 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 (relating to recovery for injury to or death of seamen) shall be credited against any liability imposed by this Act.”

10. Exclusive Jurisdiction States have the ability to become an “exclusive jurisdiction” state by providing in the state workers’ compensation law that if an injured worker is covered by a federal statue, then they are not covered by state workers’ compensation law as well.

11. Exclusive Jurisdiction Typical exclusive language: “No compensation shall be payable with respect to disability or death of any employee covered by the Federal Employers Liability Act, the Longshore and Harbor Workers’ Compensation Act, or the Jones Act.”

12. Concurrent vs. Exclusive in S.C. • Proposed bill on January 17, 2013: • "This title does not apply to employees covered by the Federal Employers' Liability Act, the Longshore and Harbor Workers' Compensation Act or any of its extensions, or the Jones Act."

13. Concurrent vs. Exclusive in S.C. • Version of proposed bill on May 22, 2013: • "Section 42-1-378. This title does not apply to an employee who suffers an injury on or after July 1, 2013, for which there is jurisdiction under either the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Section 901 et seq., and its extensions, or the Merchant Marine Act of 1020, 46 U.S.C. Section 30104 et seq. However, this title must not be construed to eliminate or diminish any right than any person or, in the case of the person's death, his personal representative, may have under either the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Section 901 et seq., and its extensions, or the Merchant Marine Act of 1020, 46 U.S.C. Section 30104 et seq."

14. Concurrent vs. Exclusive in S.C. • Same legislation previously proposed in 2001, 2003, 2004, 2005, 2006, and other years • Introduced to the S.C. House on January 17, 2013 • Passed the S.C. House on May 22, 2013 by a vote of 78-34

15. Concurrent vs. Exclusive in S.C. • Introduced to the S.C. Senate on May 28, 2013 and referred to the Committee on Judiciary • Legislative session ended and the proposed bill did not receive a vote by the S.C. Senate

16. Concurrent vs. Exclusive in S.C. • Future of concurrent jurisdiction in South Carolina: • We remain a concurrent jurisdiction state • Will have to wait and see if similar legislation is proposed again

17. Longshore and Harbor Workers’ Compensation ActConcurrent Jurisdiction Update