As a matter of law, “crewmember” is interchangeable with “seaman” for purposes of Jones Act. Error in finding claimant entitled to Jones Act and WC benefits for same injury. Court affirms insurer cannot subrogate against its own insured.

The claimant worked as a shipwright for the employer, maintaining the U.S. Brigg Niagara, and was considered a “crewmember” under the terms of a Commercial Hull policy the employer had with the insurer. The policy covered damages incurred and caused by the Brigg Niagara and provided indemnity coverage for 17 crewmembers. The employer also had workers’ compensation coverage from State Workers’ Insurance Fund (SWIF).

The claimant was injured in a slip and fall on an icy sidewalk on the employer’s premises. The insurer paid the claimant “maintenance and cure” benefits pursuant to the Commercial Hull policy. The claimant later filed a claim petition for workers’ compensation benefits. The employer asserted the claimant was a “seaman” and not entitled to workers’ compensation benefits because exclusive jurisdiction was under the Jones Act. The employer also joined SWIF as an additional insurer. However, SWIF denied coverage on the basis that their policy with the employer had lapsed three days before the injury.

The claimant subsequently filed a claim petition against the Uninsured Employers Guaranty Fund (UEGF). In bifurcated proceedings, the Workers’ Compensation Judge determined the claimant was a “seaman” and that the Jones Act applied. The claimant appealed to the Workers’ Compensation Appeal Board, which reversed and remanded, holding that the claimant was a land-based employee.

On remand, the judge awarded the claimant benefits under the Workers’ Compensation Act and ordered the employer to pay the difference between the workers’ compensation benefits and “maintenance and cure” benefits, which the judge found were correctly paid by the insurer under the Commercial Hull policy. The judge also found that there was no subrogation for the insurer since its own investigation showed that the claimant’s fall occurred on property owned by the employer and, therefore, they would be subrogating against their own insured. Finally, the judge ordered the UEGF to pay benefits if the employer refused or failed to make payment. The UEGF appealed to the Board, as did the claimant. The Board affirmed. The claimant appealed to the Commonwealth Court, and the employer intervened.

The claimant argued that the “law of the case” doctrine required the Board to find that the claimant was not a crewmember under the Commercial Hull Policy because the Board had previously determined that the the claimant was not a seaman. According to the claimant, the terms were interchangeable and the Board disregarded its prior determination. The claimant also argued that evidence showing that he was not a seaman could not support a finding that he was a crewmember under the Commercial Hull Policy. The employer argued that the prior determination that the claimant was not a seaman did not preclude a finding that he was a crewmember and, thus, covered under the Commercial Hull policy.

The Commonwealth Court held that, as a matter of law, the term “crewmember” was interchangeable with “seaman” for purposes of the Jones Act and that the Board erred in concluding that the claimant was entitled to Jones Act benefits and workers’ compensation benefits for the same injury. But, the court affirmed the Board regarding subrogation because the insurer was unable to subrogate against its own insured.

What’s Hot in Workers’ Comp, Vol. 24, No. 9, September 2020

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