There have been several important developments in the area of concurrent jurisdiction, particularly in
Illinois,
Ohio and
Pennsylvania. In addition, several readers, including Larry Postol of Seyfarth Shaw, L.L.P. and Tom Langan of Weeks Marine, Inc., have answered the challenge to make the following the most accurate listing of the status of concurrent jurisdiction in each of the 50 states.
As always, the author invites readers to send any corrections or additional information, including specific citations to authorities, to the author at jek@fwklaw.com for future revisions to this list. Since this list is only a starting point, you must conduct your own research to verify the status of concurrent jurisdiction in your own state.
Recent Developments
Illinois and Pennsylvania have issued decisions that attempted to define the limits of state jurisdiction. In the first case, Uphold v. The Illinois Workers' Compensation Commission (National Maintenance & Repair), 385 Ill. App. 3d 567, 896 N.E.2d 828 (Ill. App. 5th District, 2008), the Appellate Court of Illinois (Fifth District, Illinois Workers' Compensation Commission Division) found that there was no state jurisdiction for an injury occurring over the navigable waters. In the second case, McElheney v. Workers' Compensation Appeal Board (Kvaerner Philadelphia Shipyard), 940 A.2d 351 (Pa. 2008), the Pennsylvania Supreme Court found that there was state jurisdiction over an injury occurring in a dry dock even though dry docks are treated as the "navigable waters" when establishing admiralty jurisdiction. However, the Court reiterated its earlier holdings that there is no state jurisdiction for injuries occurring over the navigable waters.
Ohio has enacted legislation making it an exclusive jurisdiction state. The Ohio Labor Code now states, "If an employee who is covered under the federal `Longshore and Harbor Workers' Compensation Act,' 98 Stat. 1639, 33 U.S.C. 901 et seq., is injured or contracts an occupational disease or dies as a result of an injury or occupational disease, and if that employee's or that employee's dependents' claim for compensation or benefits for that injury, occupational disease, or death is subject to the jurisdiction of that act, the employee or the employee's dependents are not entitled to apply for and shall not receive compensation or benefits under this chapter and Chapter 4121 of the Revised Code. The rights of such an employee and the employee's dependents under the federal `Longshore and Harbor Workers' Compensation Act,' 98 Stat. 1639, 33 U.S.C. 901 et seq., are the exclusive remedy against the employer for that injury, occupational disease, or death."
Ohio Labor Code § 4123.54(I). This provision was effective as of September 22, 2008.
The List
1.
Alabama – Concurrent jurisdiction.
2.
Alaska – Concurrent jurisdiction.
3.
Arizona – Unknown.
4.
Arkansas – Unknown.
5.
California – Concurrent jurisdiction.
6.
Colorado – Unknown.
7.
Connecticut – Concurrent jurisdiction. Coppola v. Logistec Connecticut, Inc., 283
Conn. 1, 925 A.2d 257, 2007
Conn. LEXIS 265 (Sup. Ct. of Ct. 2007) and "Crossing the Jensen Line?," By Stephen C. Embry.
8.
Delaware – Concurrent jurisdiction.
9.
District of Columbia - Exclusive jurisdiction.
10.
Florida – Exclusive jurisdiction.
11. Georgia – Concurrent jurisdiction.
12.
Hawaii – Exclusive jurisdiction.
13.
Idaho – Unknown.
14.
Illinois – Concurrent jurisdiction for "twilight zone" cases only. Uphold v. The
Illinois Workers' Compensation Commission (National Maintenance & Repair), 385
Ill. App. 3d 567, 896 N.E.2d 828 (Ill. App. 5th District, 2008) (no state jurisdiction for injuries occurring upon navigable waters).
15. Indiana – Unknown.
16.
Iowa – Concurrent jurisdiction.
17.
Kansas – Unknown.
18.
Kentucky – Concurrent jurisdiction.
19.
Louisiana – Exclusive jurisdiction. La. Rev. Stat. Ann. § 23:1035.2: "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, or any of its extensions, or the Jones Act."
20.
Maine – Concurrent jurisdiction.
21.
Maryland - Concurrent jurisdiction.
22.
Massachusetts – Concurrent jurisdiction.
23.
Michigan – Concurrent jurisdiction.
24.
Minnesota – Concurrent jurisdiction.
25.
Mississippi – Exclusive Jurisdiction.
Miss. Code. Ann. § 71-3-5: "This chapter shall not apply to transportation and maritime employments for which a rule of liability is provided by the laws of the United States.".
26.
Missouri --Exclusive jurisdiction.
27.
Montana – Unknown.
28.
Nebraska – Concurrent jurisdiction.
29.
Nevada – Unknown.
30.
New Hampshire – Unknown.
31.
New Jersey - Exclusive jurisdiction. N.J. Stat. Ann. § 34:15-36: "Employer" is declared to be synonymous with master, and includes natural persons, partnerships, and corporations; "employee" is synonymous with servant, and includes all natural persons, including officers of corporations, who perform service for an employer for financial consideration, exclusive of (1) employees eligible under the federal `Longshore and Harbor Workers' Compensation Act,' 44 Stat. 1424 (33 U.S.C. § 901 et seq.), for benefits payable with respect to accidental death or injury, or occupational disease or infection . . . ."
32.
New Mexico – Unknown.
33.
New York – Concurrent jurisdiction but subject to waiver under NY Consolidated Law Service Work. Comp. § 113: "The provisions of this chapter shall apply to employers and employees engaged in intrastate, and also interstate or foreign commerce, for whom a rule of liability or method of compensation has been or may be established by the congress of the United States, only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, provided that awards according to the provisions of this chapter may be made by the board in respect of injuries subject to the admiralty or other federal laws in case the claimant, the employer and the insurance carrier waive their admiralty or interstate commerce rights and remedies, and the state insurance fund or other insurance carrier may assume liability for the payment of such awards under this chapter."
34.
North Carolina – Concurrent jurisdiction.
35.
North Dakota – Unknown.
36.
Ohio – Exclusive jurisdiction as of September 22, 2008. Ohio Labor Code § 4123.54(I): "If an employee who is covered under the federal `Longshore and Harbor Workers' Compensation Act,' 98 Stat. 1639, 33 U.S.C. 901 et seq., is injured or contracts an occupational disease or dies as a result of an injury or occupational disease, and if that employee's or that employee's dependents' claim for compensation or benefits for that injury, occupational disease, or death is subject to the jurisdiction of that act, the employee or the employee's dependents are not entitled to apply for and shall not receive compensation or benefits under this chapter and Chapter 4121 of the Revised Code. The rights of such an employee and the employee's dependents under the federal `Longshore and Harbor Workers' Compensation Act,' 98 Stat. 1639, 33 U.S.C. 901 et seq., are the exclusive remedy against the employer for that injury, occupational disease, or death." Effective 9/22/08.
37.
Oklahoma – Unknown.
38.
Oregon – Limited jurisdiction. Or. Rev. Stat. § 656.027(5): "A worker engaged in the transportation in interstate commerce of goods, persons or property for hire by rail, water, aircraft or motor vehicle, and whose employer has no fixed place of business in this state."
39.
Pennsylvania – Concurrent jurisdiction for "twilight zone" cases. Wellsville Terminals
Co. v. Workers' Compensation Appeal Board (Zacharias), 534 Pa. 333, 632 A.2d 1305 (Sup.
Ct. of
Pa. 1993) (exclusive jurisdiction for injuries occurring on navigable waters); & McElheney v. Workers' Compensation Appeal Board (Kvaerner Philadelphia Shipyard), 940 A.2d 351 (
Pa. 2008) (concurrent jurisdiction for injury occurring in dry dock).
40.
Rhode Island – Concurrent jurisdiction.
41.
South Carolina – Concurrent jurisdiction.
42.
South Dakota – Unknown.
43.
Tennessee – Concurrent jurisdiction.
44.
Texas – Exclusive jurisdiction. Tex. Lab. Code Ann. § 406.091(a)(2), excluding "a person covered by a method of compensation established under federal law."
45.
Utah – Unknown.
46.
Vermont – Unknown.
47.
Virginia – Concurrent jurisdiction.
48.
Washington – Exclusive jurisdiction. Wash. Rev. Code § 51.12.100(1): "Except as otherwise provided in this section, the provisions of this title shall not apply to a master or member of a crew of any vessel, or to employers and workers for whom a right or obligation exists under the maritime laws or federal employees' compensation act for personal injuries or death of such workers."
49.
West Virginia – Unknown.
50.
Wisconsin – Concurrent jurisdiction.
51.
Wyoming – Unknown.
© Copyright 2009 by Matthew Bender & Co., Inc., a member of the LexisNexis Group. All rights reserved. This article, written by John E. Kawczynski, Field Womack & Kawczynski, South Amboy,
New Jersey, will appear in Release 704 of the Benefits Review Board Service Longshore Reporter.