DANIEL M. ANSELLO, Employee/Appellant, v. WIS. CENT., LTD., and DISCOVER RE ACCLAIM RISK MGMT., Employer-Insurer/Respondents, and ESSENTIA HEALTH SYS., Intervenor.

FEBRUARY 10, 2017

No. WC16-5949

JURISDICTION - CONCURRENT. The compensation judge’s dismissal of the employee’s claim for medical expenses under the Minnesota Workers’ Compensation Act on the ground that the benefits claimed by the employee would supplant, rather than supplement, benefits available under the Longshore and Harbor Workers’ Compensation Act, is clearly erroneous and contrary to law establishing concurrent jurisdiction between the Longshore Act and state workers’ compensation acts.

PRACTICE & PROCEDURE. The compensation judge lacked authority to invoke the equitable rule of forum non conveniens in dismissing the employee’s claim, nor are the circumstances in this case consistent with such a dismissal.

    Determined by:
  1. Patricia J. Milun, Chief Judge
  2. Gary M. Hall, Judge
  3. Manuel J. Cervantes, Judge

Compensation Judge: Jerome G. Arnold

Attorneys: Steven T. Moe, Petersen, Sage, Graves, Layman & Moe, P.A., Duluth, Minnesota, for the Appellant. Krista Hiner, Peterson, Logren & Kilbury, P.A., St. Paul, Minnesota, for the Respondents.

Reversed and remanded.



The employee appeals from the compensation judge’s order dismissing his claim for medical expenses under the Minnesota Workers’ Compensation Act on the ground that medical benefits paid under the state act would supplant, rather than supplement, benefits available under the Longshore and Harbor Workers Compensation Act, and on the basis of forum non conveniens. We reverse and remand.


The employee sustained an admitted low back injury on January 29, 2006, while performing longshoreman work at the Duluth Ore Docks. Liability was admitted and indemnity and medical expense benefits were initiated by the employer and insurer under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (LHWCA), including payment for low back surgeries in March 2006 and April 2009.[1]

The employee aggravated his back at work on August 1, 2014. Prior to this incident, the employee had scheduled low back fusion surgery on September 3, 2014. Wage loss benefits were paid under the Longshore Act from August 19 through November 9, 2014, based on the August 1, 2014, aggravation, but medical expenses related to the third surgery were denied on the ground the surgery was not reasonable or necessary. On April 30, 2015, the employee filed a Medical Request under the Minnesota Workers’ Compensation Act (MWCA) seeking payment of medical expenses, including expenses related to the third surgery, allegedly arising from the January 29, 2006, work injury.

In a Findings and Order issued on April 5, 2016, the compensation judge held the Longshore Act provides a basis for fully compensating the employee for needed medical care and treatment, and the medical expenses claimed by the employee under the Minnesota Workers’ Compensation Act would supplant, rather than supplement, benefits available under the LHWCA. The judge, accordingly, denied the employee’s claim for lack of jurisdiction. The compensation judge also invoked, sua sponte, the doctrine of forum non conveniens, concluding that, given the employee’s previous claims for this injury submitted under the LHWCA, a Minnesota workers’ compensation court is not a convenient venue in which to litigate the current medical benefit claims. The employee has appealed.


In reviewing cases on appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.”[2] Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.[3] Similarly, “[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”[4]

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo.[5]



1.   Concurrent jurisdiction under the LHWCA and the Minnesota WCA

The question presented in this case is whether an employee who has received workers’ compensation benefits under the LHWCA may bring a claim for benefits under the MWCA for the same injury. The leading case addressing the intersection of the LHWCA and state workers’ compensation jurisdiction is Sun Ship, Inc. v. Pennsylvania.[6] The question before the United States Supreme Court was “whether a State may apply its workers’ compensation scheme to land-based injuries that fall within the coverage of the Longshoremen’s and Harbor Workers’ Act (LHWCA), as amended in 1972.” The Court held that states may, and affirmed the Pennsylvania Workmen’s Compensation Appeal Board’s assertion of state jurisdiction even though the appellants also were eligible for benefits under the LHWCA.[7]

Prior to 1972, coverage of the Longshore Act extended only to injuries sustained on navigable waters of the U.S. As part of the 1972 amendments, Congress extended coverage of the LHWCA to adjoining land areas for employees engaged in maritime employment. In so doing, the LHWCA provided, for the first time, a federal remedy for longshore injuries which previously had been the sole province of state workers’ compensation systems.[8]

In analyzing the question of jurisdiction, the Court traced the evolution of compensation coverage for workers whose duties were partly on land and partly on navigable waters. In 1942, the Supreme Court in Davis v. Dep’t of Labor and Indus.,[9] recognized that employees and employers alike were thrust on “[t]he horns of [a] jurisdictional dilemma” in the “twilight zone” where both federal and state compensation schemes were available. The Court upheld the application of state compensation law, “effectively establish[ing] a regime of concurrent jurisdiction.”[10] In Calbeck v. Travelers Ins. Co.,[11] the Court affirmed overlapping federal and state coverage, discussing at length the proposition that within the “maritime but local” sphere an injury “might be compensated under either state or federal law.”[12] The Court, in Sun Ship, concluded the 1972 amendments “cannot fairly be understood as pre-empting state workers’ remedies from the field of the LHWCA, and thereby resurrecting the jurisdictional monstrosity that existed before” the opinions in Davis and Calbeck. The Supreme Court held the amended LHWCA is not an exclusive remedy for land-based maritime workers, but supplements, rather than supplants, state workers’ compensation acts.[13]

State and federal decisions since Sun Ship uniformly recognize that land-based maritime workers may pursue benefits under either or both the LHWCA and state workers’ compensation programs. The Minnesota Supreme Court in Jacobson v. Duluth, Missabe & Iron Range Ry. Co. stated,[14]

The LHWCA . . . does not occupy the field of compensation for employees injured while engaged in longshoring work. . . . [T]he United States Supreme Court held in Sun Ship (citation omitted) that workers, who were injured on land and fell within the jurisdiction of the LHWCA, could pursue concurrent state benefits. The Sun Ship court described LHWCA benefits as supplementing state compensation systems rather than supplanting them. Even before 1980, . . . [i]n the twilight zone . . . an employee could be eligible for receipt of both LHWCA and state benefits.

The Minnesota Supreme Court in Jacobson acknowledged a number of states that permitted concurrent state coverage for employees who received LHWCA benefits[15] (citing Wallace v. Ryan-Walsh Stevedoring Co., 708 F.Supp. 144, 153 (E.D. Tex. 1989) (Sun Ship makes crystal clear the notion that workers injured on land, yet who fall within LHWCA coverage, may pursue federal or state compensation benefits); Logan v. Louisiana Dock Co., 541 So.2d 182, 189 (La. 1989) (the United States Supreme Court has consistently resolved jurisdictional questions in favor of providing the injured employee with a remedy under federal law, state law, or both); Bourford v. Bath Iron Works Corp., 514 A.2d 470, 474 (Me. 1986) ( the LHWCA does not prevent a state from applying its workers’ compensation scheme to longshore injuries that are also covered by the LHWCA); Ward v. State Workmen’s Compensation Comm’r, 301 S.E.2d 592, 595 (W.Va. 1983) (Congress did not remove the state’s power to act, it gave employees an optional forum in which to seek compensation)).

Similarly, in Landry v. Carlson Mooring Serv.,[16] the federal court of appeals, citing Sun Ship, stated the LHWCA and state workers’ compensation claims are not mutually exclusive, but are complementary remedies which may be pursued successively by a claimant. In Service Eng’g Co. v. Emery,[17] the court of appeals explained the LHWCA and state workers’ compensation schemes provide concurrent benefits and it is entirely possible for a claimant to collect benefits under both state workers’ compensation laws and the LHWCA.

The employer and insurer, however, assert the employee, since January 2006, has been paid benefits solely under the LHWCA, and maintain the employee is now excluded from claiming remedies under the MWCA that are available to him under the LHWCA.[18] We note first that the respondents’ argument is essentially an election of remedies defense. That is, by pursuing LHWCA benefits, the employee has elected federal law and is thereby precluded from pursuing relief under the MWCA. Case law on this point makes it clear that the election of remedies doctrine is inapplicable as between state workers’ compensation and Longshore Act remedies. In Sun Ship, the Supreme Court recognized that LHWCA and state workers’ compensation claims are not mutually exclusive, but, rather, are concurrently available and complementary remedies which do not preclude recourse to the LHWCA after litigation of a state compensation claim, or vice versa.[19] An injured employee, having a choice of remedies, can choose the more beneficial remedy when jurisdiction is concurrent.[20]

Secondly, the employer and insurer contend that concurrent jurisdiction under Sun Ship does not permit an employee to supplant, rather than supplement, benefits available under the LHWCA. They argue the intent of concurrent jurisdiction is to ensure that injured workers can access benefits otherwise unavailable under the federal act. In Jacobson, the employer and insurer assert, the employee did not qualify for permanent partial disability compensation based on wage loss under the LHWCA, but was eligible for permanency under the MWCA based on his physical condition. The Minnesota Supreme Court allowed the MWCA permanent partial disability claim. The employer and insurer argue that Jacobson stands for the proposition that concurrent jurisdiction applies only when a benefit under one act “supplements, rather than supplants,” benefits available from the other. We disagree.

The question in Sun Ship was whether the LHWCA, as amended, pre-empted state worker’s compensation acts in cases involving land-based maritime workers. The Supreme Court specifically held LHWCA coverage is not exclusive, but supplements, rather than supplants, state worker’s compensation schemes. The language in Sun Ship does not limit the benefits available under one act or the other, but addresses solely the application of jurisdiction as and between the federal and state workers’ compensation acts, concluding their jurisdiction is overlapping and concurrent.

We note, additionally, that the issue presented in Jacobson was whether the LHWCA is a federal law comparable to the Federal Employers’ Liability Act (FELA) so as to exclude the employee from benefits under Minn. Stat. § 176.041, subd. 1. The supreme court held “Longshore workers . . . are not barred by section 176.041, subd. 1, from receiving concurrent state and LHWCA benefits.”[21] There is nothing in the decision suggesting that where benefits are equally available under the LHWCA and the MWCA, the employee is limited to pursuing a claim under the LHWCA.

A primary purpose of the 1972 amendments was to substantially increase the amount of compensation available under the LHWCA. The Court in Sun Ship concluded that “[c]oncurrent jurisdiction . . . is in no way inconsistent with this policy of raising awards to a federal minimum.”[22] The Court observed in Perini North River that “both state and federal remedies are available to injured workers, and employers with employees working on the shore . . . contribute to state compensation funds in the event that an employee covered by the LHWCA’s shoreside extension [seeks] state compensation.”[23]

To avoid double recovery, a worker who is awarded state compensation benefits, then pursues federal benefits, is required to credit the state benefits against any recovery under the federal act and vice versa. Passed by Congress in 1984, 33 U.S.C. § 903(e), which provides for the crediting of amounts paid under “any other workers’ compensation law” against an employer’s liability under the LHWCA, additionally implies that Congress envisioned the existence of parallel state remedies.[24] Although the Minnesota Supreme Court has not specifically addressed the issue of credit for concurrent state and LHWCA benefits, the court has allowed successive state awards, where Minnesota and another state pay benefits for the same injury, so long as the second award is reduced by the amount of duplicative benefits paid under the other state’s act.[25]

We conclude the compensation judge’s dismissal of the employee’s claim under the MWCA for lack of jurisdiction is clearly erroneous, and, accordingly, reverse and remand the case to the Office of Administrative Hearings for a hearing on the merits.

2.   Forum Non Conveniens

The compensation judge, sua sponte, also invoked the doctrine of forum non conveniens as a basis for dismissal of the employee’s claim. The doctrine is a rule in equity pursuant to which a Minnesota judicial trial court may, in its discretion, decline to exercise jurisdiction over a cause of action when it fairly appears the case may more equitably be tried in another available court of competent jurisdiction.[26]

Minnesota workers’ compensation tribunals are executive branch courts of limited jurisdiction. Compensation judges may act only within the parameters of authority granted under the Minnesota Workers’ Compensation Act and lack equitable jurisdiction. In our opinion, the compensation judge lacked authority to assert the doctrine of forum non conveniens on this basis alone.

Minnesota forum non conveniens law is patterned after the doctrine set forth by the U.S. Supreme Court in Gulf Oil Corp. v. Gilbert.[27] The cases establish a strong presumption in favor of the plaintiff’s choice of forum. The compensation judge in this case relied on the public interest administrative difficulties factor, reasoning that handling the employee’s medical treatment claims outside the LHWCA would present an administrative nightmare for the employer, insurers, and medical providers. The Supreme Court in Sun Ship specifically addressed this concern stating it was “not persuaded that the bare fact that the federal and state compensation systems are different gives rise to a conflict that, for the employer’s standpoint, necessitates exclusivity for each compensation system.”[28]

When the home forum has been chosen, it is reasonable to assume that this choice is convenient.[29] In this case, the employee is a Minnesota resident, the injury occurred in Minnesota, and the employer’s facility where the employee was injured is located in Minnesota. There is nothing inconvenient about trying the employee’s claim for Minnesota benefits in a Minnesota workers’ compensation forum rather than in the federal system. We, therefore, reverse the compensation judge’s dismissal of the employee’s cause of action on the basis of forum non conveniens.

[1] The employer’s insurer for Longshore Act benefits is Signal Mutual Indemnity Association. Its insurer for the purposes of Minnesota workers’ compensation coverage is Discover RE Acclaim Risk Management.

[2] Minn. Stat. § 176.421, subd. 1(3); see also Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).

[3] Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

[4] Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

[5] Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993)

[6] 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980).

[7] Id., 447 U.S. at 716-17.

[8] Id., 447 U.S. at 719; Director, Office of Workers’ Compensation Programs v. Perini North River Assocs., 459 U.S. 297, 299, 103 St. Ct. 634,74 L.Ed.2d 465 (1983).

[9] 317 U.S. 249, 254, 63 S.Ct. 438, 87 L.Ed. 246 (1942).

[10] “Concurrent jurisdiction” means “[t]he jurisdiction of several different tribunals, each authorized to deal with the same subject-matter at the choice of the suitor.” Black’s Law Dictionary, 363 (rev’d 4th ed. 1968).

[11] 370 U.S. 114, 82 S. Ct. 1196, 8 L.Ed.2d 368 (1962).

[12] Sun Ship, 447 U.S. at 718-19; Perini North River, 459 U.S. at 308-09.

[13] Sun Ship, 447 U.S. at 720; see, e.g., Ward v. State Workmen’s Comp. Comm’r, 301 S.E.2d 592 (W.Va. Sup. Ct. App. 1983).

[14] 458 N.W.2d 107, 110, 43 W.C.D. 137, 142 (Minn. 1990).

[15] Id., at 110 n.6, 43 W.C.D. at 142 n.6.

[16] 643 F.2d 1080 (5th Cir. 1981).

[17] 100 F.3d 659 (9th Cir. 1996).

[18] The respondents included multiple references in their brief, and in Attorney Hiner’s Affidavit and attached exhibits, to a claim before the LHWCA that was initiated after the hearing and decision in this matter. See Brief at pp. 4, 6, 8, 11, Affidavit nos. 6, 8, and 9, and Affidavit Exhs. A, B, and C. This court may not consider issues that were not raised and evidence that did not exist at the time of the hearing below.

[19] See Landry, 643 F.2d at 1087; Wallace, 708 F.Supp. at 154; 14 Larson’s Workers’ Compensation Law § 145.07[5](2016).

[20] Allen v. Cecil M. Keeney, 442 So.2d 1171, 1176 (Ct. App. La., 1st Cir. 1983)

[21] Jacobson, 458 N.W.2d at 111, 43 W.C.D. at 143 (emphasis added).

[22] Sun Ship, 447 U.S. at 723-24; see Perini North River, 459 U.S. at 313.

[23] Perini North River, 459 U.S. at 309 n.18.

[24] Sun Ship, 447 U.S. at 725 n.8; Wallace, 708 F.Supp. 153 n.17 (citing Landry, 643 F.2d at 1088); Logan, 541 So.2d at 184.

[25] Jacobson, 458 N.W.2d at 110 n.5, 43 W.C.D. at 142 n.5; see Pierce v. Robert D. Pierce, Ltd., 363 N.W.2d 761, 37 W.C.D. 514 (Minn. 1985); Sea-Land Serv., Inc., v. Workers’ Comp. Appeals Bd., 14 Cal.4th 76 (Cal. Sup. Ct. 1996).

[26] Hague v. Allstate Ins. Co., 289 N.W.2d 43 (Minn. 1978); see also Kennecott Holdings Corp. v. Liberty Mut. Ins. Co., 578 N.W.2d 358 (Minn. 1998); Bergquist v. Medtronic, Inc., 379 N.W.2d 508 (Minn. 1986). We note that cases addressing the doctrine of forum non conveniens involve actions filed in Minnesota judicial branch district courts.

[27] 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), cited in Hague, 289 N.W.2d at 46.

[28] Sun Ship, 447 U.S. at 725.

[29] Bergquist, 379 N.W.2d at 512.