State Coverage (Federal Coverage Only if Rejected By
State)
The maritime worker excluded in Sections 2(3) and 3 of the Longshore
Act, injured on a maritime site either landward or seaward of the Jensen' line.
Federal Coverage
The maritime worker not excluded in Sections 2(3) and 3 of the
Longshore Act, injured seaward of the Jensen' line whose work was maritime
but not local.251
251Concurrent
Jurisdiction: After the Sun Ship Decision, 4 Longshore Newsletter 2, 3 (1986).
252 33 U.S.C. §
903(e). The actual language provides, in pertinent part: "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 . . . shall be
credited against any liability imposed by this Act." 33 U.S.C. § 903(e). The
Employer's credit should be based on the actual amount of compensation paid and not an amount
based on the percentage of injury for which the claimant was previously compensated.
Brown v. Bethlehem Steel Corp., 19 BRBS 200, 204 (1987), 20 BRBS 26 (1987) (Decision
and Order on reconsideration), aff'd in part and reversed sub nom Director, OWCP v.
Bethlehem Steel Corp., 868 F.2d 759, 22 BRBS 47 (CRT) (5th Cir. 1989).
253Calbeck v. Travelers
Insurance Co., 370 U.S. 114 (1962). While Bouford v. Bath Iron Works Corp., also
recognizes concurrent jurisdiction and acknowledges that the employee cannot receive a double
recovery, the court denied a credit to the Employer for Claimant's work-related unscheduled back
injury because there was no double recovery as permanent partial disability benefits under the
Act compensated the employee for loss of wage-earing capacity and the state award of benefits
for permanent impairment for the same unscheduled injury provided superior, separate and
distinct compensation for physical consequences of that injury. Bouford v. Bath Iron Works
Corp., 514 A. 2d 470 (Me. 1986), cert. denied, 479 U.S. 1065 (1987).
254Bouford v. Bath Iron
Works Corp., 514 A.2d 470 (Me. 1986), cert. denied, 479 U.S. 1065 (1987).
255Industrial Comm v.
McCartin, 330 U.S. 622 (1947); Thomas v. Washington Gas Light Co., 448 U.S.
261, 12 BRBS 828 (CRT) (1980).
256 La. Rev. Stat. Ann.
§ 23:1035.2 (West 1997); N.J. Stat. Ann. § 34:15-36 (West 1997); Tex. Lab.
Code Ann. § 406.091 (West 1997); Wash. Rev. Code Ann. 51.12.100 (West 1997).
258See Bath Iron Works
Corp. v. Director, OWCP [Acord], 125 F.3d 18, 21 n.1 (1st Cir. 1997) ("[C]oncurrnet
jurisdiction, and even the possibility of successive awards, do not tell one anything about
collateral estoppel") (citing Thomas v. Washington Gas Light Co., 448 U.S. 261,
280-82 (1980)).
259See Calbeck v.
Travelers Ins. Co., 370 U.S. 114 (1962); Holland v. Harrison Bros. Dry Dock & Repair
Yard, 306 F.2d 369, 373 (5th Cir. 1962).
260 33 U.S.C. §
903(e); Calbeck v. Travelers Ins. Co., 370 U.S. 114 (1962).
261Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981); St. Louis Iron Mountain & Ry. Co. v.
Southern Express Co., 108 U.S. 24, 28-29 (1883).
262United States v. Utah
Constr. & Mining Co., 384 U.S. 394, 422 (1966). In University of Tennessee v.
Elliott, the Court found that the purpose behind the Full Faith and Credit Clause:
is served by giving preclusive effect to state administrative
factfinding rather than leaving the courts of a second forum, state or federal,
free to reach conflicting results. Accordingly, we hold that when a state
agency acting in a judicial capacity . . . resolves disputed issues of fact
properly before it which the parties have had an adequate opportunity to
litigate,' . . . federal courts must give the agency's fact finding the same
preclusive effect to which it would be entitled in the State's court.
University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986) (citations omitted).
263See Thomas v.
Washington Gas Light Co., 448 U.S. 261, 281, 12 BRBS 828 (1980) ("the factfinding
of a state administrative tribunals are entitled to the same res judicata effect in the second State
as findings by a court"); see alsoSmith v. ITT Continental Baking Co., 20
BRBS 142 (1987).
264See Newport News
Shipbuilding & Dry Dock Co. v. Director, OWCP [Jenkins], 583 F.2d 1273, 8 BRBS 723
(4th
Cir. 1978), cert. denied, 440 U.S. 915 (1979).
Relitigation of an issue is not precluded by the doctrine of collateral
estoppel where the party against whom the doctrine is invoked had a heavier
burden of persuasion on that issue in the first action than he does in the
second, or where his adversary has a heavier burden in the second action
than he did in the first.
Id.
266Dixon v. John J.
McMullen & Assoc., 13 BRBS 707 (1981).
273See University of
Tennessee v. Elliott, 478 U.S. 788, 799 (1986) ("federal courts must give the [state]
agency's fact-finding the same preclusive effect to which it would be entitled in the State's
courts"); United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)
(requiring that state agency act in adjudicative capacity).
274West Helena Sav. &
Loan Assoc. v. Federal Home Loan Bank Bd., 553 F.2d 1175, 1180-81 (8th Cir. 1977);
Safir v. Gibson, 432 F.2d 137, 143-44 (2d Cir.), cert. denied, 400 U.S. 850
(1970).
275Bath Iron Works
Corp. v. Director, OWCP [Acord], 125 F.3d 18, 21 (1st Cir. 1997) (quoting Barlow v.
Western Asbestos Co., 20 BRBS 179, 180 (1988)); see alsoVodanovich v.
Fishing Vessel Owners Marine Way, Inc., 27 BRBS 286, 290-92 (1994) (holding that
because the state court applied the same standard for determining Claimant's status as
"borrowed" employee as that applied under the Act, the state court's finding should
be accorded collateral estoppel effect and the parties could not re-litigate the issue).
276Bath Iron Works
Corp. v. Director, OWCP [Acord], 125 F.3d 18, 22 (1st Cir. 1997).
277Id. at 21 (citing
Newport News Shipbuilding & Dry Dock Co. v. Director, OWCP, 583 F.2d 1273,
1278-79 (4th Cir. 1978), cert. denied, 440 U.S. 915 (1979)).