IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Arlet, :

:

Petitioner :

:

 v. : No. 1722 C.D. 2018

: Argued: October 4, 2019

Workers’ Compensation Appeal :

Board (Commonwealth of :

Pennsylvania, Department of Labor :

and Industry, Bureau of Workers’ :

Compensation), :

:

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE WOJCIK FILED: July 29, 2020

Robert Arlet (Claimant), on behalf of Acadia Insurance Company 

(Insurer),

1 petitions for review of the Workers’ Compensation Appeal Board’s 

(Board) December 4, 2018 order insofar as it affirmed a Workers’ Compensation 

Judge’s (WCJ) determination on remand that Insurer is not entitled to subrogation 

under Section 319 of the Workers’ Compensation Act (Act).2 Upon review, we 

affirm on other grounds.

 

1 Claimant’s counsel submitted into evidence a copy of a fee agreement between 

Claimant’s counsel and Insurer. WCJ’s 5/16/17 Decision, Finding of Fact (F.F.) No. 22. 

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §671.
2

I. Background

The facts are not in dispute. Claimant worked as a shipwright for 

Flagship Niagara League (Employer)

3 maintaining the U.S. Brig Niagara (Brig 

Niagara). Insurer issued a Commercial Hull Policy to Employer. Generally, the 

Commercial Hull Policy provided coverage for damages incurred by and damages 

caused by the Brig Niagara, as well as Protection and Indemnity coverage for “17 

crewmembers.” Reproduced Record (R.R.) at 45a. Employer obtained workers’ 

compensation insurance from State Workers’ Insurance Fund (SWIF).

On March 9, 2011, Claimant was injured during the course and scope 

of his employment when he fell on an icy sidewalk on Employer’s premises. Shortly 

thereafter, Insurer paid Claimant “maintenance and cure” benefits pursuant to the 

Protection and Indemnity Clauses of the Commercial Hull Policy.4

On February 8, 2013, Claimant filed a petition seeking workers’ 

compensation benefits effective March 9, 2011, based on a weekly wage of $617.62. 

Employer filed a timely answer admitting Claimant’s injury, but asserting that 

Claimant’s remedy was governed by the Jones Act5 and that Claimant had fully 

recovered from his injury as of May 12, 2011. 

 

3 Employer is a non-profit educational associate organization of the Pennsylvania 

Historical and Museum Corporation, responsible for the operation of the U.S. Brig Niagara and its 

homeport, the Erie Maritime Museum. https://sailfnl.org (last visited July 28, 2020).

4

“A claim for maintenance and cure concerns the vessel owner’s obligation to provide 

food, lodging, and medical services to a seaman injured while serving the ship.” Lewis v. Lewis 

& Clark Marine, Inc., 531 U.S. 438, 441 (2001). 

5 Section 33 of the Merchant Marine Act of 1920, 46 U.S.C. §688, is commonly known as 

the Jones Act. It is part of the U.S.’s body of maritime law, and was enacted by Congress to provide 

heightened protection to workers who are exposed to the perils of the sea. Chandris, Inc. v. Latsis, 

515 U.S. 347, 354 (1995). In relevant part, it provides a “seaman” the ability to sue his employer 
3

Employer filed a joinder petition naming SWIF as an additional insurer, 

arguing that should Claimant succeed with the workers’ compensation claim, SWIF 

would be liable. SWIF filed an answer denying coverage. Employer’s policy with 

SWIF had lapsed at the time of Claimant’s injury. 

In turn, Claimant filed an Uninsured Employers Guaranty Fund 

(UEGF) claim petition, arguing that should he succeed, UEGF would be liable if

Employer failed to pay. UEGF filed an answer denying the material allegations of 

the petition. The petitions were consolidated. The WCJ bifurcated the proceedings 

to first determine if Claimant was a “seaman,” making the Jones Act his exclusive 

remedy.

Before the WCJ, Claimant argued that the Jones Act maintenance and 

cure benefits were paid to him incorrectly because he was not a “seaman” based on 

the nature of his employment. In rebuttal, Employer argued that Claimant was 

injured while working on repairs to the Brig Niagara, and, while his job did not 

involve sailing, Claimant was employed as a shipwright and was considered a 

member of the crew. Therefore, his injuries would be covered under the Jones Act.

Claimant testified that the work of a shipwright is similar to that of a 

carpenter. Claimant maintained the wood of the ship, built masts, caulked decks, 

repaired the hull, and performed dry dock procedures. Claimant testified that he 

performed most of his work in the winter when the Brig Niagara was docked and 

 

for negligence to recover for injuries sustained during the course of his employment. Id. Filing a 

suit in negligence is a seaman’s only remedy; he has no remedy under workers’ compensation 

laws. Id. at 355-56. Once an individual is found to be covered by federal maritime law, the state 

workers’ compensation law is preempted. Hill v. Workmen’s Compensation Appeal Board (Spirit 

of Philadelphia), 703 A.2d 74, 78-80 (Pa. Cmwlth. 1997). Additionally, where applicable, the Act 

is “the exclusive remedy for an injured employee seeking redress for a work related injury from 

his employer, [Section 303 of the Act,] 77 P.S. §481(a).” Vandervort v. Workers’ Compensation 

Appeal Board (City of Philadelphia), 899 A.2d 414, 418 (Pa. Cmwlth. 2006).
4

that he had not sailed on the ship since 2000. Claimant’s direct supervisor was the 

captain of the Brig Niagara, and Claimant was assigned to work only on that vessel. 

After considering the testimony and other evidence presented, the WCJ 

determined that “Claimant was a seaman for purposes of the Jones Act,” and 

therefore, he was not entitled to workers’ compensation under the Act. R.R. at 174a. 

As a result, the WCJ dismissed the petitions. 

Claimant appealed to the Board, challenging the determination that 

Claimant was a “seaman” under the Jones Act. The Board agreed and reversed the 

WCJ’s decision that Claimant was a “seaman” under the Jones Act, stating:

[T]he evidence reflects that Claimant currently 

works on the [Brig Niagara] only over the winter when it 

is in port or dry-docked, and we see no indication that he 

is ever exposed to the perils of the sea, we must conclude 

that he is not a seaman for purposes of the Jones Act. 

* * *

Therefore, we must conclude as a matter of law that 

Claimant was a land-based employee and not a seaman 

pursuant to the Jones Act, and thus we cannot agree that 

an award of benefits pursuant to the Jones Act would be 

appropriate. Consequently, pursuant to Section 101 of the 

[Act, 77 P.S. §1], Claimant is entitled to seek an award of 

workers’ compensation benefits.

R.R. at 186a-87a (internal citations omitted). The Board reversed the WCJ’s 

determination that Claimant was a “seaman” under the Jones Act and remanded the 

case to the WCJ to proceed on the merits. 

On remand before the WCJ, Employer presented evidence regarding its 

Commercial Hull Policy with Insurer, which was in effect from May 1, 2010, to May 

1, 2011. The Commercial Hull Policy provided coverage for the Brig Niagara, 

protection and indemnity liability coverage for the crewmembers, and a waiver of 
5

the right to subrogate “against affiliate, subsidiary or interrelated companies” of

Employer. R.R. at 45a, 48a, 53a. 

Employer also presented evidence regarding its workers’ compensation 

insurance policy. Employer had maintained workers’ compensation insurance 

through SWIF from March 5, 2010, to March 5, 2011. Claimant’s injury occurred 

on March 8, 2011, when Employer had no workers’ compensation insurance 

coverage. 

The evidence reflected that after Claimant reported his injury to 

Employer, Employer reported the claim to Insurer for payment pursuant to the 

Commercial Hull Policy. Insurer paid Claimant maintenance benefits of $50 per day 

for 92 days, as well as medical expenses, for a total of $46,833.36.

After paying Claimant, Insurer recognized that its ability to subrogate 

the claim may be foreclosed. Insurer’s employee, Lisa Marie Briggs (Ms. Briggs),

wrote in the claim file on July 27, 2012:

After thinking about the recovery on this file, I was 

not so sure that we could subrogate. Although the 

[C]laimant slipped and fell . . . that property is still owned 

by the Insured. Therefore, technically we would be 

subrogating against our own insured. 

After speaking with the Agent, whom [sic] use [sic]

to write the [general liability] for this insured, he stated 

that [Employer] has their [sic] own employees take care of 

winter maintenance. Therefore [Claimant] would be 

limited to [workers’ compensation], but since [Claimant] 

is a crewmember of the vessel, he would have to make a 

[maintenance and cure] claim. [Claimant] would only be 

owed [maintenance and cure] since the vessel was in no 

way responsible for [Claimant’s] slip and fall. 

R.R. at 168a (emphasis added). 
6

Based on the evidence presented on remand, the WCJ found that 

Claimant was entitled to benefits under the Act. R.R. at 41a-42a. The WCJ granted 

the claim petition and awarded Claimant total disability benefits at a weekly rate of 

$411.75 from March 8, 2011, to August 19, 2011. Id. Additionally, the WCJ 

concluded:

6. [Employer], being uninsured at the time of this 

injury, is responsible for payment of the difference 

between Workers’ Compensation benefits and 

Maintenance & Cure benefits. [] Employer provided 

insurance coverage for Claimant through the [Commercial 

Hull Policy]. [] Employer took steps to insure that 

[]Claimant, as an employee, only worked in jobs that 

involved servicing the Brig Niagara thus providing 

coverage under the [Commercial Hull Policy]. [Insurer] 

correctly paid the benefits pursuant to [the Commercial 

Hull Policy]. [] Claimant is not entitled to double 

coverage, however, he is entitled to be made whole. 

[Employer], in not providing Workers’ Compensation 

benefits, is liable for the additional benefits afforded by 

the [] Act. In this case, this amounts to $5046.71 in wage 

loss benefits . . . and no medical benefits since these were 

paid in full. 

* * *

8. There is no subrogation owed to [Insurer], since 

according to [its] own investigation, [it] correctly paid 

under [the Commercial Hull Policy]. Neither [] Claimant 

nor the medical providers are entitled to double recovery.

9. If [Employer] refuses or fails to make payment, 

the UEGF is required to pay the benefits owed, with leave 

to seek reimbursement from [Employer].

Id. Both Claimant and UEGF appealed to the Board. 

On appeal, UEGF argued that Claimant was a “seaman” and, therefore, 

his sole remedy was under the Jones Act. Citing Shuster v. Workers’ Compensation 
7

Appeal Board (Pennsylvania Human Relations Commission), 745 A.2d 1282 (Pa. 

Cmwlth. 2000), the Board explained that a “party is required to appeal from the 

WCJ’s decision on remand, even if favorable on the remanded issue, and request 

that the Board make its previous order final.” R.R. at 21a. Having previously 

determined that Claimant was not a “seaman” for purposes of the Jones Act, the 

Board declined to revisit that issue. 

Claimant argued that the WCJ erred in concluding that Insurer correctly 

paid Jones Act benefits and was not entitled to subrogation. The Board affirmed the 

WCJ’s determination that Claimant was covered by the Commercial Hull Policy, 

based on its review of the Commercial Hull Policy’s provisions and principles of 

contract interpretation. The Board found that Insurer could have used the 

terminology of the Jones Act if it had wished to do so, and construed the term 

“member of the crew” in favor of the insured.6

 

6 The Board stated:

When the policy language is unambiguous, the court gives 

effect to that language. When a provision is ambiguous, the policy 

is to be construed in favor of the insured. Language of a contract is 

ambiguous if it is reasonably susceptible to different constructions 

and capable of being understood in more than one sense. The courts 

do not assume that contract language was chosen carelessly.

Subrogation is the right of one who [sic] has paid an 

obligation which should have been paid by another to be 

indemnified by the other. 

* * *

[Claimant] argues that because at the time of injury 

[Claimant] was not a seaman pursuant to the Jones Act, he could not 

be a member of the crew under the terms of the policy. Clearly, the 

insurer could have incorporated the terminology of the Jones Act if 
8

Having previously determined that Claimant was not a seaman for 

purposes of the Jones Act, after remand the Board held that “Claimant was a member 

of the crew for purposes of the [Commercial Hull Policy].” R.R. at 25a. Thus, the 

Board concluded that Insurer was not entitled to subrogation under Section 319 of 

the Act. The Board affirmed the WCJ’s decision, and Claimant petitioned this Court 

for review on December 31, 2018.

7 Employer intervened. 

 

it had so wished. The policy language does not incorporate the 

language of the Jones Act. We do not assume that the contract 

language was chosen carelessly.

Because the term “member of the crew” in the policy is 

reasonably susceptible to different constructions, it is ambiguous 

and is to be construed in favor of the insured.

* * *

In the present matter, the [Commercial Hull Policy] covered 

hospital, medical or other expenses necessarily and reasonably 

incurred in respect to injury to a member of the crew. Any payments 

made by [Insurer] to, or on behalf of Claimant were [Insurer’s] 

responsibility under the [Commercial Hull Policy]. [Insurer] did not 

pay any obligation which should have been paid by another. 

Accordingly, [Insurer] is not entitled to subrogation. 

R.R. at 21a-22a; 24a-25a (citations omitted). 

7 Our scope of review in a workers’ compensation appeal is limited to determining whether 

an error of law was committed, whether constitutional rights were violated, or whether necessary 

findings of fact are supported by substantial evidence. Bloom v. Workmen’s Compensation Appeal 

Board (Keystone Pretzel Bakery), 677 A.2d 1314, 1317 n.4 (Pa. Cmwlth. 1996). Substantial 

evidence means such relevant evidence as a reasonable mind might accept as adequate to support 

the conclusions reached. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board 

(Skirpan), 612 A.2d 434, 436 (Pa. 1992).
9

II. Issues

On appeal, Claimant first argues that the “law of the case” doctrine 

compels this Court to vacate the Board’s December 4, 2018 decision because the 

Board had previously determined Claimant was not a “seaman” pursuant to the Jones 

Act. Second, Claimant argues that the Board’s decision is not supported by 

substantial evidence. Employer counters that, in the event this Court reverses the 

Board, Insurer is not entitled to subrogation because it cannot subrogate against its 

own insured.8 

III. Discussion

Law of the Case Doctrine

As a preliminary issue, we address the applicability of the “law of the 

case” doctrine. Claimant argues that the “law of the case” doctrine applies and 

requires the Board to find that Claimant was not a “crewmember” under the 

Commercial Hull Policy because the Board had previously determined that Claimant 

was not a “seaman.” Claimant asserts the terms “crewmember” and “seaman” are 

interchangeable and that the Board’s December 4, 2018 decision disregards its prior 

determination that Claimant was not a “seaman.” Employer counters that the law of 

the case doctrine is inapplicable in cases where the second order does not reverse the 

first order and that there indeed was no reversal of the determination that Claimant 

was not a “seaman.” Rather, the Board determined that, under the Commercial Hull 

Policy’s “member of the crew” language, Claimant was covered. 

 

8 Employer further argues that it is entitled to a credit for the workers’ compensation 

benefits it paid to Claimant under the second WCJ order. However, Employer has failed to identify 

where it has raised this argument before the WCJ or the Board. Therefore, the issue is not properly 

before this Court. 
10

The law of the case doctrine is a body of rules regarding the concept 

that a court involved in the later phases of a litigated matter should not reopen 

questions previously decided by another judge of the same or a higher court in an 

earlier phase of the matter. Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 

1995). Specifically, the doctrine includes the following relevant rules:

(1) Upon remand for further proceedings, a trial court may 

not alter the resolution of a legal question previously 

decided by the appellate court in the matter; [or] (2) upon 

a second appeal, an appellate court may not alter the 

resolution of a legal question previously decided by the 

same appellate court[.]

Id. Claimant cites no persuasive authority supporting application of the law of the 

case doctrine to decisions rendered entirely within the workers’ compensation 

system, and we decline Claimant’s invitation to do so here.9

Substantial Evidence

Next, Claimant argues that the Board’s decision is not supported by 

substantial evidence. Claimant explains that where the evidence demonstrates that 

he is not a “seaman” under the Jones Act, the same evidence cannot support a finding 

that he is a “crewmember” under the Commercial Hull Policy because the two terms 

are interchangeable. 

 

9 Claimant cites two cases in support of his argument that the law of the case doctrine is 

applicable. Both are distinguishable. Madden v. Workers’ Compensation Appeal Board (Gutter 

Guard) (Pa. Cmwlth., No 2218 C.D. 2012, filed May 20, 2013) (Madden II), involved a case that 

was appealed to this Court, remanded to the WCJ, and then again appealed to this Court. In the 

second appeal, this Court held that the law of the case doctrine prevented the reconsideration of 

the Court’s prior decision. Id. However, in this case, there has not yet been an appeal and decision 

outside of the workers’ compensation system. Claimant also cites Krouse v. Workers’ 

Compensation Appeal Board (Barrier Enterprises, Inc.), 837 A.2d 671 (Pa. Cmwlth. 2003), which 

contemplates the impact of res judicata and collateral estoppel, not the law of the case doctrine.
11

Employer argues that the determination that Claimant is not a “seaman” 

for purposes of the Jones Act does not preclude a finding that he is a “crewmember” 

and therefore covered under the Commercial Hull Policy. Employer contends that 

if Insurer wanted to limit the Commercial Hull Policy’s coverage to “seaman” or if 

it intended for the terms “member of the crew” and “seaman” to be interchangeable, 

it could have defined them as such. 

Exactly who qualifies as a “seaman” under the Jones Act has been 

refined through more than 75 years of case law. “[T]he question of who is a ‘member 

of the crew,’ and therefore who is a ‘seaman’ is a mixed question of law and fact.” 

Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995). 

In Chandris, the U.S. Supreme Court reduced the class of individuals

who are “seamen” to the following test: (1) the employee’s duties must contribute 

to the function of the vessel or the accomplishment of its mission; and (2) the 

employee must have a connection to a vessel or vessels in navigation that is 

substantial in both its duration and its nature. 515 U.S. at 355-56. The second 

requirement narrows the field of employees who are “seamen” by distinguishing

land-based workers who only have a “transitory or sporadic connection to the vessel 

in navigation.” Id. 

Under relevant case law, the terms “crewmember” and “member or 

master of the crew” have been held to be synonymous with “seaman.” In Chandris, 

the Court observed that the Longshore and Harbor Workers’ Compensation Act 

(LHWCA),10 which provides the exclusive remedy for injuries sustained by a range 

of land-based maritime workers, explicitly excludes from its coverage a “member of 

a crew of any vessel.” Chandris, 515 U.S. at 355 (citing 33 U.S.C. §902(3)(G)).

 

10 33 U.S.C. §§901-950. Neither party has raised the argument that Claimant was covered 

under the LHWCA. 
12

As the [U.S. Supreme] Court has stated on several 

occasions, the Jones Act and the LHWCA are mutually 

exclusive compensation regimes: “master or member of 

the crew” is a refinement of the term “seaman” in the Jones 

Act; it excludes from LHWCA coverage those properly 

covered under the Jones Act. Indeed, it is odd but true that 

the key requirement for Jones Act coverage now appears 

in another statute. 

Chandris, 515 U.S. at 355-56 (internal quotations and citations omitted).

In Foulk v. Donjon Marine Company, Inc., 144 F.3d 252 (3d Cir. 1998), 

the Third Circuit Court of Appeals held that the term “master or member of the crew” 

is a refinement of the term “seaman” in the Jones Act. Id. at 258. Further, the court 

elaborated that an individual’s status as a seaman, based on the test enunciated in 

Chandris, requires the court to analyze the totality of the circumstances. Id. at 260.

In Hill v. Workmen’s Compensation Appeal Board (Spirit of 

Philadelphia), 703 A.2d 74 (Pa. Cmwlth. 1997), the claimant appealed an order of 

the Board affirming the dismissal of his claim petition for lack of jurisdiction. The 

claimant was a deckhand on a ship and his duties included cleaning the deck and 

general household work aboard the ship. Id. at 75-76. The claimant was injured on 

shore while taking out the trash. Id. at 76. The Court reiterated that to determine 

whether the claimant’s injury was compensable under the Act, it must first determine 

whether the claimant was a seaman under the Jones Act. Based on the totality of the 

facts, the Court concluded that the claimant was a seaman, injured in the course of 

his employment, and his exclusive remedy was under the Jones Act. Id. at 80. 

Because, as a matter of law, the term “crewmember” is interchangeable 

with “seaman” for purposes of the Jones Act, Foulk, 144 F.3d at 259, Hill, 703 A.2d 

at 78, and the remedies under both statutes are exclusive, the Board erred in 

concluding that Claimant was entitled to Jones Act maintenance and cure benefits 

and workers’ compensation benefits for the same injury.
13

Subrogation

Nevertheless, we affirm the Board’s December 4, 2018 order because 

Insurer is unable to subrogate its own insured. It is well-settled that an insurer cannot 

subrogate against its own insured. Keystone Paper Converters, Inc. v. Neemar, Inc., 

562 F. Supp. 1046, 1048 (E.D. Pa. 1983) (“there exists a large body of law to the 

effect that an insurer may not subrogate against its own insured.”); Employers of 

Wausau v. Purex Corp., 476 F. Supp. 140, 142 (E.D. Pa. 1979). “By definition, 

subrogation can arise only with respect to the rights of an insured against third 

persons to whom the insurer owes no duty.” Remy v. Michael D’s Carpet Outlets, 

571 A.2d 446, 447 (Pa. Super. 1990). For an insurer to prevail against its own 

insured in a subrogation action contravenes public policy. Employers of Wausau, 

476 F. Supp. at 143. 

There is no dispute that Employer is the named insured under the 

Commercial Hull Policy, pursuant to which Insurer paid “maintenance and cure” 

benefits to Claimant. R.R. at 195a-96a. Insurer is now attempting to recover from 

its own insured the sums paid to Claimant under the Commercial Hull Policy. 

Insurer, as Ms. Briggs noted in the claim file, is unable to subrogate against its own 

insured. See Employers of Wausau, 476 F. Supp. at 142; R.R. at 168a. To permit 

subrogation in this case would be a direct violation of the well-settled rule that an 

insurer is unable to subrogate against its own insured. See; Keystone Paper 

Converters, 562 F. Supp. at 1048; Employers of Wausau, 476 F. Supp. at 142. 
14

IV. Conclusion

Although the Board erred in holding that Claimant was entitled to 

benefits under two statutes providing exclusive remedies, we conclude that 

Insurer is not entitled to subrogation against Employer. Accordingly, we affirm

the Board’s order.

11

MICHAEL H. WOJCIK, Judge

 

11 We “may affirm on other grounds where grounds for affirmance exist.” Kutnyak v. 

Department of Corrections, 748 A.2d 1275, 1279 n.9 (Pa. Cmwlth. 2000); accord Sloane v. 

Workers’ Compensation Appeal Board (Children’s Hospital of Philadelphia), 124 A.3d 778, 786 

n.8 (Pa. Cmwlth. 2015). 
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Arlet, :

:

Petitioner :

:

 v. : No. 1722 C.D. 2018

: 

Workers’ Compensation Appeal :

Board (Commonwealth of :

Pennsylvania, Department of Labor :

and Industry, Bureau of Workers’ :

Compensation), :

:

Respondent :

O R D E R

AND NOW, this 29th day of July, 2020, the December 4, 2018 order of 

the Workers’ Compensation Appeal Board in the above-captioned matter is hereby 

AFFIRMED. 

__________________________________

MICHAEL H. WOJCIK, Judge