dissenting.
Unlike the majority, I do not believe that the Jones Act, 46 U.S.C.App. § 688, should impact on our decision here; therefore, I respectfully dissent.
John Hill, Jr. (Claimant) is not pursuing a remedy under the Jones Act,1 nor is he claiming benefits under the Longshoreman and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-950;2 rather, Claimant seeks workers’ compensation under the Pennsylvania Workers’ Compensation Act (PWCA).3 Thus, I believe that the issue presented here involves the question of concurrent jurisdiction under both the PWCA and the LHWCA.4 To resolve this issue, we need only determine whether the LHWCA supplants the PWCA or shares concurrent jurisdiction with the PWCA as a source of compensation benefits to Claimant, a deck hand on a ship which cruises on the Delaware River, for an injury sustained while he was emptying the ship’s trash on land at a site over a block away from the docked ship.
Faced with this question, we would need to analyze the law regarding overlapping state and federal jurisdiction in the context of compensation for maritime workers. This law has undergone a lengthy development and, as an aid to understanding the issue, I provide a brief synopsis of this evolution beginning in 1917, when the United States Supreme Court, in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), declared that states were constitutionally barred from applying their compensation systems to maritime injuries because to do so would interfere with the federal policy of uniformity in maritime law.
The Court subsequently has narrowed the Jensen doctrine by identifying circumstances which are maritime yet “local in character” and, therefore, amenable to relief under state law. In 1927, Congress enacted the LHWCA, which extended protection to maritime workers excluded under Jensen by providing compensation for an injury occurring on navigable waters if recovery could not validly be provided by state law. However, because the boundary between state and federal jurisdiction was unclear, claimants often faced harsh consequences as a result of selecting the wrong forum in which to bring their action. Conséquently, in Davis v. Department of Labor and Industries of Wash*81ington, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), the Court established a scheme of concurrent jurisdiction, creating a “twilight zone” wherein workers injured in navigable waters but performing duties which were not traditionally maritime would be entitled to claim benefits under either the LHWCA or their state workmen’s compensation program.5
In Flowers v. Travelers Insurance Co., 258 F.2d 220 (5th Cir.1958), cert. denied, 359 U.S. 920, 79 S.Ct. 591, 3 L.Ed.2d 582 (1959), a welder, injured while making repairs on an ocean-going tanker floating in dry-dock, brought an action under the LHWCA. The court harkened back to Jensen and held that where, at the time of injury, a claimant was upon navigable waters and involved in work which was typically maritime, he was within the exclusive coverage of the LHWCA. The fact that the claimant spent 80% of his time performing non-maritime work on shore was deemed irrelevant where the situation at the time of injury in no way fell within the twilight zone of coverage.
In Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962), the Court further overlapped state and federal coverage for maritime workers by holding that, while federal and state jurisdiction would remain concurrent, the LHWCA would reach all cases of injury sustained on navigable waters whether or not they were within the constitutional reach of state law. However, injuries which were suffered beyond navigable waters still were compensable only by state law.
In 1972, Congress amended the LHWCA and extended its coverage landward. Believing that there should not be any disparity between benefits payable to injured maritime employees based solely on which side of the water’s edge the accident occurred, Congress sought to upgrade benefits to the federal minimum by broadening the activities of maritime workers which would be compensable under the federal scheme to include those performed landside. Sun Shipbuilding and Dry Dock Co. v. Workmen’s Compensation Appeal Board, 41 Pa.Cmwlth. 302, 398 A.2d 1111 (1979), aff'd sub nom. Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980). However, concurrent jurisdiction with state law was retained where that law could constitutionally operate.6 Thus, the 1972 amendments did not preempt any state remedies, but, rather, supplemented that coverage with federal remedies. Sun Ship.7
This brings me to Wellsville Terminals Co. v. Workmen’s Compensation Appeal Board (Zacharias), 148 Pa.Cmwlth. 197, 610 A.2d 520 (1992) (Wellsville I), relied on by the Board here.8 In that case, the claimant was injured while making repairs to a barge floating in the Ohio River and sought benefits under the PWCA. This court affirmed the grant of benefits. Relying on Davis and more particularly, on Sun Ship, we held that because the barge was tethered to the shore and because the claimant drove co-workers to work each day, his activities were sufficiently land-based to fall within the concurrent jurisdiction of the LHWCA and the *82PWCA. Our supreme court reversed in Wellsville Terminals Co. v. Workmen’s Compensation Appeal Board (Zacharias), 534 Pa. 333, 632 A.2d 1305 (1993) (Wellsville II), reasoning that we were wrong to rely on Sun Ship, a case which was dependent on the LHWCA’s post-1972 expansion onto land. Instead, the court relied on Flowers, holding that because the claimant in Wellsville II, like the claimant in Flowers, received his injury on navigable waters while engaged in essential repairs to the vessel, a traditional maritime activity, he did not fall within the twilight zone of concurrent jurisdiction and his remedy was exclusively with the LHWCA.
I believe that this case is governed by Flowers and Wellsville II in that it represents the other side of the Flowers/Wellsville II coin. The claimants in both those cases, at the time of injury, were upon navigable waters involved in work which was typically maritime, whereas Claimant here was injured on dry land while emptying trash, a non-maritime activity.9 Although I acknowledge that the vast majority of Claimant’s work was performed on board the ship itself, the time element is not determinative of the issue here; rather, it is the type of work that the claimant is performing and the claimant’s location at the time of the injury which weigh most heavily in this analysis. Flowers; Wellsville II.
In Flowers and Wellsville II, the courts concluded that any claimant injured while performing traditional maritime work on navigable waters could recover only under the LHWCA; the court in Flowers was not swayed by the fact that the claimant spent 80% of his time performing non-maritime work on land. Thus, it follows that where, as here, a claimant is injured on land while performing work which is not traditionally maritime, he may seek a remedy under the state system, even though he spends much of his time performing maritime, sea-based activities.
Based on this reasoning, I would reverse the order of the Board dismissing the case for lack of jurisdiction and remand the case for the WCJ to make further findings and conclusions relating to the merits of the claim.
. The Jones Act, enacted in 1920, provides a cause of action in negligence for any seaman injured in the course of his employment. Claimant here does not seek damages in a personal injury action; rather, he seeks workers’ compensation benefits.
. The LHWCA, enacted in 1927 and amended in 1972, provides workers' compensation for injury to a broad range of land-based maritime workers, but explicitly excludes from its coverage “a master or member of a crew of any vessel." 33 U.S.C. § 902(3)(G). Because a member of a crew has been construed as the equivalent of a Jones Act "seaman,” the Jones Act and the LHWCA are mutually exclusive. McDermott International, Inc. v. Wilander, 498 U.S. 337, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991).
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4.
. This question arises because, while the PWCA applies “to" all injuries occurring within this Commonwealth ...," section 101 of the PWCA, 77 P.S. § 1, the LHWCA applies to injuries “occurring on the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal ... or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling or building a vessel).” 33 U.S.C. § 903(a).
. In Davis, the widow of a workman who had drowned in a navigable river while working for a construction company sought benefits under the workmen’s compensation law of the state of Washington. The Washington Supreme Court held that the state could not make an award under its state law because jurisdiction was exclusively federal under the LHWCA. The United Slates Supreme Court reversed, holding that there was no constitutional bar to recovery under state law in the twilight zone where state law appeared to cover the employee.
. In Sun Shipbuilding, we affirmed the grant of state workmen’s compensation benefits to claimants injured on land while performing shipbuilding and repair work, holding that the 1972 amendments to the LHWCA which extended federal coverage landward did not intend to preclude concurrent jurisdiction by the states.
. Sun Ship involved ship repairmen injured on land while involved in shipbuilding and repair activities. In Sun Ship, the United States Supreme Court held that a state may apply its workers' compensation scheme to land-based injuries which fall within the coverage of the LHWCA as amended in 1972.
. I note that the majority states that it agrees with the result reached by the Board. (Majority op. at 77.) I find this statement perplexing. The Board, in affirming the WCJ, cited Wellsville I, based on which the Board concluded that, as a maritime worker on or near navigable waters, Claimant was covered exclusively by the LHWCA. Wellsville I subsequently was reversed by our supreme court in Wellsville Terminals Co. v. Workmen's Compensation Appeal Board (Zacharias), 534 Pa. 333, 632 A.2d 1305 (1993) *82(Wellsville II). Thus, the Board, relying on a case which had been reversed, concluded that Claimant was covered under the LHWCA, whereas the majority obviously concludes that the LHWCA does not apply. (Majority op. at 77.)
Perhaps the majority is confused because the Board was confused as well. In its motion to dismiss, Employer argued that Claimant could not be covered either by the LHWCA or by the PWCA because he was a "seaman" within the meaning of the Jones Act. (R.R. at 7a.) In its brief, Employer maintains that the WCJ, in fact, determined that Claimant's activities classified him as a seaman. (See Respondent's brief at 7, 9, and 11.) The WCAB also adopts this position. (WCAB op. at 3; R.R. at 154a.) However, both are incorrect; the WCJ made no finding with regard to whether Claimant was a "seaman” within the meaning of the Jones Act. Indeed, the WCJ could not have made such a determination since the issue of seaman status under the Jones Act is a question of fact for a jury in an action brought pursuant to that act. In fact, the WCJ made no reference to the Jones Act in his opinion and referred only to Claimant’s failure to fit within the concurrent jurisdiction of the PWCA and the LHWCA. (R.R. at 145a-48a.)
From a reading of the WCAB’s opinion, it appears that the WCAB misconstrued the issue as Employer presented it. In that opinion, the WCAB states that “[Employer] filed an answer denying Claimant's allegations and raising the defense of jurisdiction, to wit, Claimant’s job duties classify him as a 'seaman and as such is governed by the [LHWCA]." (WCAB op. at 2; R.R. at 153a) (emphasis added). As stated previously, this is not what Employer argues and, in fact, appears to be a legal impossibility because the Jones Act, which covers seamen, and the LHWCA, which covers other land-based maritime workers, are mutually exclusive. In fact, Employer argued that, because Claimant was a “seaman,” he was not governed by the LHWCA. (R.R. at 7a.)
. In fact, a review of Claimant’s duties prompted the WCJ to find that Claimant performed mostly household work or security work. (WCJ’s Findings of Fact, c and e; R.R. at 146a.)