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Georgia House Bill 574 Seeks to End Concurrent Workers' Compensation Coverage Under State Law and the United States Longshore & Harbor Workers' Compensation Act (LHWCA)

by John D. Blair

        Sponsored by Representatives Stephens of the 164th, Townsend of the 179th, Hitchens of the 161st, Petrea of the 166th, Gillard of the 162nd, and other state legislators, House Bill 574 has been reported as intending to force workers to choose between being protected under Georgia’s workers’ compensation laws or the U.S. Longshoreman and Harbor Workers’ Compensation Act (the “LHWCA”). This is not entirely accurate, however. As drafted, the bill would seek to eliminate any choice and clarify, jurisdictionally, which law, state or federal, under which injured workers must prosecute their claims.

        The text of the bill proposed to amend O.C.G.A. § 34-9-2, which sets forth to which employers and employees state workers’ compensation laws apply, to add subsection (g), which would state as follows: “This chapter shall not apply to employees of an employer covered by and providing coverage under the [LHWCA] as amended, and its extensions” (emphasis supplied). This text, read literally, provides that there is no coverage under Georgia’s workers’ compensation laws if two conditions are met: (1) the employer has provided workers’ compensation insurance coverage under the LHWCA/its extensions; and (2) the employees or employer (or both) are covered by the LHWCA/its extensions. Implicitly, an employee may still have a state claim if the employer fails to procure (the legally mandated) insurance coverage for claims under the LHWCA.

        Condition #2 is somewhat poorly phrased, though. The application of the “covered by … [the LHWCA/its extensions]” language to the earlier stated “employees of an employer” is vague and susceptible to multiple interpretations. It is not completely clear whether the employees must be covered, the employer must be covered, or both. We think the best construction would be both, in keeping with the clear purpose of the bill; however, that is not as plainly stated as it might be in this proposed language. Still, it appears the goal is to ensure that an employee with a valid claim for benefits under the LHWCA will not also have a claim under Georgia workers’ compensation law (“concurrently”).

        That has been the impact of similar legislation in other states as well. Virginia became an “exclusive” jurisdiction back in 2012, terminating coverage under Virginia law for claims covered by the LHWCA. Other “exclusive” jurisdictions like Virginia include: Florida, Hawaii, Indiana, Kentucky, Louisiana, Maine, Maryland, Mississippi, Missouri, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, Texas, and Washington. The remaining jurisdictions are “concurrent” by default, meaning that the injured worker can either choose or simultaneously pursue benefits under state law and the LHWCA, due to the impact of the United States Supreme Court’s opinion in the 1980 case of Sun Ship v. Pennsylvania, which decision has long plagued employers and insurers alike. 447 U.S. 715. Put differently, each state must independently decide to become “exclusive,” or it will be and remain “concurrent” in its approach to coverage under the LHWCA.

        Georgia is situated in the Eleventh United States Appellate Circuit, along with Alabama and Florida. Florida has long been the minority as the Eleventh Circuit’s only “exclusive” jurisdiction. If the proposed legislation passes, then Georgia will join Florida, leaving Alabama as the sole remaining concurrent jurisdiction in the Eleventh Circuit. The Eleventh Circuit itself was excised and formed from the Fifth Circuit in October of 1981, which in turn is comprised of Louisiana, Mississippi, and Texas. It is worth noting that every state in the Fifth Circuit has previously elected to be “exclusive.” Thus, if this Georgia legislation passes, then Alabama and the Carolinas will be the last remaining “concurrent” jurisdictions/holdouts in the southeastern United States.

        This bill was recently heard in the House Industry and Labor Committee and has most recently been referred to the Advisory Council for further consideration. Whether it passes or not, coverage under the LHWCA is a very specific determination that must be made in every case where a worker is injured on or near navigable waters. In addition to state law, a determination must be made as to whether the claim alternatively arises under the “Jones Act” and maritime law as mutually exclusive from (state and/or federal) workers’ compensation programs. Please do not hesitate to reach out to us with any questions or concerns.