Appealed From No. A94-1497. State Agency, Workmen's Compensation Appeal Board.
Before: Honorable James Gardner Colins, President Judge, Honorable Joseph T. Doyle, Judge, Honorable Bernard L. McGINLEY, Judge, Honorable Doris A. Smith, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge. Opinion BY Judge Doyle. Dissenting Opinion BY Judge Friedman.
The opinion of the court was delivered by: Doyle
John Hill (Claimant), appeals an order of the Workmen's Compensation Appeal Board (Board) which affirmed a decision of a Workers' Compensation Judge (WCJ) to dismiss a Claim Petition for lack of subject matter jurisdiction.
The facts are not in dispute. Claimant was a deckhand on a ship, the "Spirit of Philadelphia," a tour boat that plies the navigable waters of the Delaware River. The WCJ's critical findings of fact describe Claimant's duties and injury as follows:
5. This Workers' Compensation Judge has reviewed the record as a whole and finds that it supports the following facts:
c) [Claimant's duties included] . . . cleaning off the deck and hosing it down as well as sweeping down the deck and hosing it off, cleaning the boat down, cleaning such as "household work" as in cleaning out bathrooms, and hooking up sewer and water lines when the boat was docked;
d) Claimant also described his duties as including making a trash run which would mean emptying the trash from the ship into a dumpster which was located about a block or a block and a half from where the ship was docked;
e) Claimant also described his duties as including security work while the boat was sailing the Delaware River in that he would patrol the boat making sure people behaved properly and did not lean on the rails;
f) Claimant continued to describe his duties as including cleaning the brass on the boat, vacuuming, cleaning toilets, sinks and mirrors and preparing the boat for the next cruise;
g) On July 20, 1990, Claimant, while making a trash run to the dumpster was on top of the dumpster, slipped off the dumpster and found his body wedged between the truck and the dumpster;
h) Claimant fell between six or seven feet on the ground injuring his foot and lower back;
6. This Workers' Compensation Judge has reviewed the record as a whole and finds that Claimant's testimony establishes an insufficient nexus of land-based activities to sustain his action under the Pennsylvania Workers' Compensation Act. Claimant specifically testified that the trash run was the only land based activity [that] he performed and that activity took approximately ten minutes in duration to perform. All other activities with regard to Claimant's job as a deck hand were performed on the ship, the Spirit of Philadelphia and there was no nexus between Claimant's job as a deck hand and the land. The ship, the Spirit of Philadelphia was not [a] stationary vessel but rather a cruise ship that sailed up and down the Delaware River, a navigable waterway. Claimant's testimony fails to establish that Claimant's work was sufficiently land-based[.] In this case the fall was in the concurrent jurisdiction of the Pennsylvania Workers' Compensation Act and the federal Longshoreman [sic] and Harbor Workers' Compensation Act.
7. Claimant was a deck hand on the Spirit of Philadelphia and his job duties did not include sufficient land base activities to provide him a remedy under the concurrent jurisdiction of the Federal Longshoreman and Harbor Workers' Compensation Act and the Pennsylvania Workers' Compensation Act.
8. Claimant did not sustain a work related injury within the meaning of the Pennsylvania Workers' Compensation Act.
(WCJ's Findings of Fact Nos. 5-8; Reproduced Record (R.R.) at 147a.) Based on these facts, the WCJ concluded:
1. Claimant has not sustained his burden of proving that his duties were sufficiently land-based to fit within the concurrent jurisdiction of the Longshoreman and Harbor Workers' Compensation Act and the Pennsylvania Workers' Compensation Act and thus, Claimant's Claim Petition for compensation under the Pennsylvania Workers' Compensation Act must be dismissed for lack of jurisdiction.
(WCJ's Decision at 4; R.R. at 147a.) Claimant subsequently appealed to the Board, which affirmed the decision of the WCJ.
Claimant then appealed to this Court, arguing that the Board erred when it concluded that he did not fall within the jurisdiction of the Pennsylvania Workers' Compensation Act *fn1 (PWCA). Specifically, Claimant argues that the PWCA is an act of territorial jurisdiction, applying to all injuries occurring within the Commonwealth of Pennsylvania, relying on Section 1 of the PWCA, which provides:
That this act shall be called and cited as The Pennsylvania Workers' Compensation Act, and shall apply to all injuries occurring within this Commonwealth. . . .
77 P.S. § 1 (emphasis added). Using the language of Section 1, Claimant argues that, because his injury happened within the territorial borders of the Commonwealth, he is entitled to benefits under the PWCA. Furthermore, Claimant attempts to rebut the Board's Conclusion that the Longshore and Harbor Workers' Compensation Act *fn2 (LHWCA) preempts the PWCA by citing Sun Shipbuilding and Dry Dock v. Workmen's Compensation Appeal Board *fn3 for the principle that the jurisdiction of the PWCA is concurrent with the LHWCA and is not preempted by it. Therefore, Claimant argues, ...