with whom McKU-SICK, Chief Justice, joins, dissenting.
I must respectfully disagree with the Court because I believe the Court addresses incorrectly the issue before it. If the issue were limited to a question of state law as the Court’s opinion implies, I would join that opinion. I agree that permanent impairment benefits awarded Bouford “are separate and distinct from the benefits he received under LHWCA.” Slip Op. at 472. Notwithstanding any converse implication of section 62, there is no explicit statutory requirement in the Maine Workers’ Compensation act that BIW receive credit for the LHWCA payments. Moreover, I do not suggest adding an equitable gloss to the Maine act by requiring such a credit as a matter of public policy. Hird v. Bath Iron Works Corp., 512 A.2d 1035 (Me.1986); Wentzell v. Timberlands, Inc., 412 A.2d *4751213 (Me.1980). I conclude, therefore, that there is no basis in our state law to require a setoff.
In my view, however, the question is one of federal law and requires that we discern what the Supreme Court would decide on the issue before us.
As our Court observes, Slip Op. at 472, the Supreme Court has determined that state compensation schemes are not preempted by the LHWCA in areas of apparent concurrent jurisdiction. Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980). Critical to that determination was the observation that the employer will receive credit on either scheme for any amounts paid under the other. Id. at 725 n. 8, 100 S.Ct. at 2439 n. 8. Our observation in Stockford v. Bath Iron Works Corp., 482 A.2d 843, 845 (Me. 1984), that Stockford could not obtain a double recovery was not intended as a statement of Maine law. Rather, we noted the controlling principle of federal law announced in footnote 8 of Sun Ship.
Although it is true that the Supreme Court observed in Sun Ship that Congress was unconcerned about states providing superior benefits, the federal scheme plainly requires all payments under LHWCA to be credited toward those superior state benefits. The opinion in Sun Ship traced the development of concurrent jurisdiction through Davis v. Department of Labor, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942), and Calbeck v. Travelers Insurance Co., 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368 (1962). Although not part of the dispute in Calbeck, the Supreme Court there noted that full credit was allowed in the federal proceedings for all payments made under the Louisiana Compensation Act regardless of their purpose. Footnote 8 in Sun Ship cites Calbeck as demonstrating that there is no danger of double recovery because “employer’s awards under one compensation scheme would be credited against any recovery under the second scheme.” The Supreme Court’s language in footnote 8, as well as the subsequent enactment of 33 U.S.C. § 903(c), would require any amount paid for permanent impairment under the Maine Workers’ Compensation Act to be credited toward federal liability for the same injury. It is inconceivable that the application of the setoff principle is dependent upon the fortuity of whether the state or federal proceeding occurred first. I am convinced that the Supreme Court would require LHWCA payments to be credited against an award for permanent impairment as well as any other compensation awarded for the same injury.
Finally, I reject our Court’s suggestion that the offset at issue would defeat the purpose of the award for permanent impairment. Slip Op. at 474. On the contrary, regardless where the employee first seeks an award of benefits he is entitled to the maximum amount allowed to an individual under either scheme. Today’s decision, however, would permit the person whose injury fortuitously is within the area of concurrent jurisdiction to obtain greater benefits than either the person suffering a strictly land-based injury or the person suffering a strictly maritime injury. I would hold that as a matter of federal law BIW must be credited with all payments under LHWCA toward any benefits awarded under the Maine Workers’ Compensation Act.