Background:
National Maintenance and Repair appealed from an order of the circuit court which confirmed a decision by the Illinois Workers' Compensation Commission ("Commission") awarding Roger Gale ("Gale") benefits under the Worker's Compensation Act ("Act").

National operates a repair facility for barges and towboats that cross the MIssisssippi River. Gale had been employed by National for 17 years. Gale was working on a "plant barge" when an I beam fell on his left middle finger. Gale was taken to the emergency room to have the tip of his finger amputated.

The plant barge, according to Gale is held in place by mooring lines connected to the shore and a spud - a two-foot square tube that runs vertically through the barge and into the bottom of the river. Electrical lines run from the shore to the plant barge and ramps allow vehicles to be driven on and off the barge.

The plant barge floats on the Mississippi with no motor or navigational system. Gale admits it could be towed elsewhere by disconnecting the mooring lines, cutting the electricity, and removing the spud. The plant barge has not been moved since it was put in place 5-6 years ago.

An arbitrator found that Gale suffered an accidental injury arising out of and in the scope of his employment with National. The arbitrator specifically found that the plant barge was a land-based facility and therefore, concurrent state and federal jurisdiction over Gale's injury existed. The arbitrator awarded Gale disability benefits and ordered them to pay for certain medical expenses incurred.

National filed a petition for review and the ruling was affirmed.

Issue:
Did the circuit court err in affirming the arbitrator's award of disability and medical expenses to the claimant, Gale?

Held:
National contended that Gale was injured on navigable waters and engaged in traditional maritime activity and therefore, the Longshore Harbor Workers' Compensation Act ("LHWCA") provided the exclusive remedy to award Gale benefits.

This Court recognized long standing precedent that an employee, who is performing a traditional maritime function, and is injured on navigable waters cannot recover benefits under the state's compensation laws.

Both parties do not dispute whether Gale was engaged in traditional maritime activity at the time of his injury (ship repair).

However, under the LHWCA, it is required that a watercraft be capable of being used as a means of transportation on water, as opposed to being permanently moored or otherwise rendered incapable of transportation in order to find it a vessel.

National argued that it is physically possible to move the "plant barge" by towing it to another location. However, because the undisputed evidence revealed that the plant barge was affixed to the shore with mooring lines and a spud, and that it receives its electricity from land-based source that it has been permanently moored and therefore, is not a vessel.

Accordingly this Court found that Gale was injured on a land-based structure and that the arbitrator properly concluded it had jurisdiction over the matter.

Comment:
The Supreme Court in Sun Ship Inc. v. Pennsylvania, 447 U.S. 715 held that the 1972 amendments to the LHWCA, which extended federal jurisdiction to land-based injuries, supplemented rather than supplanting state workers' compensation laws.

This eliminated the risk of injured employees guessing wrong in choosing the appropriate remedy, state or under the LHWCA when attempting to recover from their employers.

Steve Gordon