{ "id": 4279674, "name": "CECIL UPHOLD, Appellant, v. THE ILLINOIS WORKERS' COMPENSATION COMMISSION et al. (National Maintenance & Repair, Appellee)", "name_abbreviation": "Uphold v. Illinois Workers' Compensation Commission", "decision_date": "2008-09-24", "docket_number": "No. 5 \u2014 07\u20140669WC", "first_page": "567", "last_page": "585", "citations": [ { "type": "official", "cite": "385 Ill. App. 3d 567" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "217 P.2d 733", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1950, "opinion_index": 0 }, { "cite": "97 Cal. 2d 257", "category": "reporters:state", "reporter": "Cal. 2d", "year": 1950, "opinion_index": 0 }, { "cite": "201 P.2d 549", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1949, "opinion_index": 0 }, { "cite": "89 Cal. App. 2d 632", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2274409 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/cal-app-2d/89/0632-01" ] }, { "cite": "70 S. Ct. 99", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1949, "opinion_index": 0 }, { "cite": "94 L. Ed. 523", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1949, "opinion_index": 0 }, { "cite": "338 U.S. 854", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3941077, 3940966 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/us/338/0854-02", "/us/338/0854-01" ] }, { "cite": "80 N.E.2d 478", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "323 Mass. 162", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 504080 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/mass/323/0162-01" ] }, { "cite": "69 S. Ct. 239", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1948, "opinion_index": 0 }, { "cite": "93 L. Ed. 417", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1948, "opinion_index": 0 }, { "cite": "335 U.S. 874", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6238393, 6239035, 6238703 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/us/335/0874-01", "/us/335/0874-03", "/us/335/0874-02" ] }, { "cite": "571 F.2d 272", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 922680 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/f2d/571/0272-01" ] }, { "cite": "33 U.S.C. \u00a7913", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2000, "pin_cites": [ { "page": "(a)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "493 U.S. 40", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11329645 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "47" }, { "page": "287" }, { "page": "385-86" } ], "opinion_index": 0, "case_paths": [ "/us/493/0040-01" ] }, { "cite": "258 F.2d 220", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 451804 ], "year": 1958, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/f2d/258/0220-01" ] }, { "cite": "469 P.2d 590", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1970, "pin_cites": [ { "page": "594" } ], "opinion_index": 0 }, { "cite": "2 Wash. App. 718", "category": "reporters:state", "reporter": "Wash. App.", "case_ids": [ 1847555 ], "year": 1970, "pin_cites": [ { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/wash-app/2/0718-01" ] }, { "cite": "281 U.S. 222", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3914498 ], "weight": 15, "year": 1930, "pin_cites": [ { "page": "232", "parenthetical": "\"Repairing a completed ship lying in navigable waters has direct and intimate connection with navigation and commerce\"" }, { "page": "822", "parenthetical": "\"Repairing a completed ship lying in navigable waters has direct and intimate connection with navigation and commerce\"" }, { "page": "308", "parenthetical": "\"Repairing a completed ship lying in navigable waters has direct and intimate connection with navigation and commerce\"" }, { "page": "232" }, { "page": "822" }, { "page": "308" }, { "page": "232" }, { "page": "822" }, { "page": "308" }, { "page": "232" }, { "page": "822" }, { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/us/281/0222-01" ] }, { "cite": "940 A.2d 351", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8303596, 4087493 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/a2d/940/0351-01", "/pa/596/0048-01" ] }, { "cite": "596 Pa. 48", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 4087493 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/pa/596/0048-01" ] }, { "cite": "908 A.2d 960", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8459354 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "964" }, { "page": "964" } ], "opinion_index": 0, "case_paths": [ "/a2d/908/0960-01" ] }, { "cite": "944 F.2d 1187", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10527788 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "1191" }, { "page": "1191" }, { "page": "1191" } ], "opinion_index": 0, "case_paths": [ "/f2d/944/1187-01" ] }, { "cite": "470 U.S. 414", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11299444 ], "weight": 6, "year": 1985, "pin_cites": [ { "parenthetical": "\"This view of 'maritime employment' does not preclude benefits for those whose injury would have been covered before 1972 because it occurred 'on navigable waters.' [Citation.]\"" }, { "parenthetical": "\"This view of 'maritime employment' does not preclude benefits for those whose injury would have been covered before 1972 because it occurred 'on navigable waters.' [Citation.]\"" }, { "parenthetical": "\"This view of 'maritime employment' does not preclude benefits for those whose injury would have been covered before 1972 because it occurred 'on navigable waters.' [Citation.]\"" } ], "opinion_index": 0, "case_paths": [ "/us/470/0414-01" ] }, { "cite": "33 U.S.C. \u00a7902", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 7, "year": 1972, "pin_cites": [ { "page": "(3)" }, { "page": "(3)" }, { "page": "(3)" }, { "page": "(4)" }, { "page": "(3)" }, { "page": "(3)" }, { "page": "(3)" } ], "opinion_index": 0 }, { "cite": "432 U.S. 249", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178421 ], "weight": 9, "year": 1977, "pin_cites": [ { "page": "264" }, { "page": "333" }, { "page": "2357" }, { "page": "264-65" }, { "page": "334" }, { "page": "2357" } ], "opinion_index": 0, "case_paths": [ "/us/432/0249-01" ] }, { "cite": "444 U.S. 69", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11304820 ], "weight": 5, "year": 1979, "pin_cites": [ { "page": "72", "parenthetical": "stating that before the 1972 amendments of the LHWCA, \"[a] single situs requirement in \u00a73(a) of the [LHWCA] governed the scope of its coverage\"" }, { "page": "230", "parenthetical": "stating that before the 1972 amendments of the LHWCA, \"[a] single situs requirement in \u00a73(a) of the [LHWCA] governed the scope of its coverage\"" }, { "page": "332", "parenthetical": "stating that before the 1972 amendments of the LHWCA, \"[a] single situs requirement in \u00a73(a) of the [LHWCA] governed the scope of its coverage\"" }, { "page": "73" }, { "page": "230" } ], "opinion_index": 0, "case_paths": [ "/us/444/0069-01" ] }, { "cite": "370 U.S. 114", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165684 ], "weight": 12, "year": 1962, "pin_cites": [ { "page": "119" }, { "page": "372" }, { "page": "1199" }, { "page": "117" }, { "page": "371" }, { "page": "1198" }, { "page": "128" }, { "page": "377" }, { "page": "1204", "parenthetical": "noting that Davis, which created the concept of a \"twilight zone,\" was not predicated on the ground that the employment was \"maritime but local\"" } ], "opinion_index": 0, "case_paths": [ "/us/370/0114-01" ] }, { "cite": "903 F.2d 935", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10539387 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "944" }, { "page": "945" } ], "opinion_index": 0, "case_paths": [ "/f2d/903/0935-01" ] }, { "cite": "447 U.S. 715", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188834 ], "weight": 16, "year": 1980, "pin_cites": [ { "page": "718" }, { "page": "461" }, { "page": "2435" }, { "page": "718" }, { "page": "461" }, { "page": "2435" }, { "page": "718" }, { "page": "461" }, { "page": "2435" }, { "page": "719" }, { "page": "462" }, { "page": "2436" }, { "page": "720" }, { "page": "463" }, { "page": "719-20" }, { "page": "462-63" } ], "opinion_index": 0, "case_paths": [ "/us/447/0715-01" ] }, { "cite": "335 Ill. App. 3d 723", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637139 ], "weight": 5, "year": 2002, "pin_cites": [ { "page": "726" }, { "page": "726" }, { "page": "727" }, { "page": "728-29" }, { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0723-01" ] }, { "cite": "137 F.3d 131", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 105995 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "135" }, { "page": "135" }, { "page": "135" } ], "opinion_index": 0, "case_paths": [ "/f3d/137/0131-01" ] }, { "cite": "33 U.S.C. \u00a7903", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 7, "year": 1927, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "257 U.S. 469", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3678104 ], "weight": 4, "year": 1922, "pin_cites": [ { "page": "476-77" }, { "page": "324" }, { "page": "158" }, { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/us/257/0469-01" ] }, { "cite": "257 U.S. 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3678835 ], "weight": 3, "year": 1921, "pin_cites": [ { "page": "242" }, { "page": "214" }, { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/us/257/0233-01" ] }, { "cite": "253 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 189345 ], "weight": 3, "year": 1920, "pin_cites": [ { "page": "163-64" }, { "page": "840-41" }, { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/us/253/0149-01" ] }, { "cite": "264 U.S. 219", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6139729 ], "weight": 3, "year": 1924, "pin_cites": [ { "page": "227" }, { "page": "652" }, { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/us/264/0219-01" ] }, { "cite": "277 Ill. App. 3d 379", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172376 ], "weight": 12, "year": 1995, "pin_cites": [ { "page": "381" }, { "page": "382" }, { "page": "382" }, { "page": "382" }, { "page": "386", "parenthetical": "noting that since Jensen has not been overruled, it remains good law" }, { "page": "386-87" }, { "page": "386-87" }, { "page": "383" }, { "page": "383" }, { "page": "387-88", "parenthetical": "pointing out that employees engaged in traditional maritime activities who are injured over navigable waters fall outside the \"twilight zone\"" }, { "page": "386" }, { "page": "387", "parenthetical": "rejecting similar claims" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0379-01" ] }, { "cite": "259 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 423323 ], "weight": 3, "year": 1922, "pin_cites": [ { "page": "272-73" }, { "page": "936" }, { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/us/259/0263-01" ] }, { "cite": "396 U.S. 212", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11331085 ], "weight": 6, "year": 1969, "pin_cites": [ { "page": "216" }, { "page": "376" }, { "page": "350" }, { "page": "219-20" }, { "page": "377-78" }, { "page": "352" } ], "opinion_index": 0, "case_paths": [ "/us/396/0212-01" ] }, { "cite": "459 U.S. 297", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6195683 ], "weight": 39, "year": 1983, "pin_cites": [ { "page": "303" }, { "page": "472" }, { "page": "639-40" }, { "page": "306" }, { "page": "474" }, { "page": "641" }, { "page": "307" }, { "page": "474" }, { "page": "642" }, { "page": "307" }, { "page": "474" }, { "page": "642" }, { "page": "309" }, { "page": "475" }, { "page": "643" }, { "page": "319" }, { "page": "482" }, { "page": "648", "parenthetical": "\"Congress *** assumed that injuries occurring on the actual navigable waters were covered, and would remain covered\" following enactment of the 1972 amendments" }, { "page": "314" }, { "page": "479" }, { "page": "645" }, { "page": "324" }, { "page": "485" }, { "page": "650-51" }, { "page": "324" }, { "page": "485" }, { "page": "650-51" }, { "page": "306-07" }, { "page": "474" }, { "page": "641-42" }, { "page": "306" }, { "page": "474" }, { "page": "641" }, { "page": "314" }, { "page": "479" }, { "page": "645" } ], "opinion_index": 0, "case_paths": [ "/us/459/0297-01" ] }, { "cite": "244 U.S. 205", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 343089 ], "weight": 6, "year": 1917, "pin_cites": [ { "page": "216-18" }, { "page": "1098-99" }, { "page": "529-30" } ], "opinion_index": 0, "case_paths": [ "/us/244/0205-01" ] }, { "cite": "925 A.2d 257", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 2007, "pin_cites": [ { "page": "260", "parenthetical": "\"Whether the state act constitutionally applies to claims involving injuries that occurred on the navigable waters of the United States is a pure question of law\"" }, { "page": "262" } ], "opinion_index": 0 }, { "cite": "283 Conn. 1", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 5730150 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "5", "parenthetical": "\"Whether the state act constitutionally applies to claims involving injuries that occurred on the navigable waters of the United States is a pure question of law\"" }, { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/conn/283/0001-01" ] }, { "cite": "367 Ill. App. 3d 102", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4265722 ], "year": 2006, "pin_cites": [ { "page": "105", "parenthetical": "noting that questions of law are subject to plenary review" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/367/0102-01" ] }, { "cite": "534 Pa. 333", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1839673 ], "weight": 7, "year": 1993, "pin_cites": [ { "parenthetical": "reviewing matter as a mixed question of law and fact" }, { "parenthetical": "reviewing matter as a mixed question of law and fact" }, { "page": "337" }, { "page": "1307", "parenthetical": "\"Davis and Sun Ship have defined and narrowed the scope of Jensen. Nonetheless, maritime employees who are performing traditionally maritime functions and are injured over navigable waters, under Jensen, are constitutionally barred from recovering under any state workmen's compensation law\"" }, { "page": "1308" }, { "page": "338" }, { "page": "1308", "parenthetical": "dismissing the fact that the barge upon which the claimant was injured was tethered to the shore as \"an extraordinarily tenuous connection with the land\" because it is not uncommon for ships undergoing repairs to be tied to the land" } ], "opinion_index": 0, "case_paths": [ "/pa/534/0333-01" ] }, { "cite": "338 F. Supp. 2d 406", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9184527 ], "year": 2004, "pin_cites": [ { "parenthetical": "\"[Wjhether someone qualifies as an 'employee' under the LHWCA is a mixed question of law and fact\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/338/0406-01" ] }, { "cite": "78 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3075322 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/78/0327-01" ] }, { "cite": "317 U.S. 249", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 304034 ], "weight": 15, "year": 1942, "pin_cites": [ { "page": "253" }, { "page": "248" }, { "page": "227" }, { "page": "255-58" }, { "page": "249-51" }, { "page": "228-30" }, { "page": "257" }, { "page": "251" }, { "page": "229" } ], "opinion_index": 0, "case_paths": [ "/us/317/0249-01" ] }, { "cite": "33 U.S.C. \u00a7901", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 2004, "pin_cites": [ { "page": "et seq." }, { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1536, "char_count": 47162, "ocr_confidence": 0.808, "pagerank": { "raw": 6.56399371175534e-08, "percentile": 0.40219178801544025 }, "sha256": "bed42f3894ba9eca29b160945dccf3569af3611773a4f8db3eebe5d13981612e", "simhash": "1:ff693740e7a5047b", "word_count": 7859 }, "last_updated": "2023-07-14T18:58:06.429737+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CECIL UPHOLD, Appellant, v. THE ILLINOIS WORKERS\u2019 COMPENSATION COMMISSION et al. (National Maintenance & Repair, Appellee)." ], "opinions": [ { "text": "JUSTICE GROMETER\ndelivered the opinion of the court:\nAt issue in this case is whether claimant, Cecil Uphold, may pursue workers\u2019 compensation benefits under the Illinois Workers\u2019 Compensation Act (ILWCA) (820 ILCS 305/1 et seq. (West 2000)) or whether his claim for relief is preempted by federal law, specifically, the Longshore and Harbor Workers\u2019 Compensation Act (LHWCA) (33 U.S.C. \u00a7901 et seq. (2004)). The arbitrator, relying on Davis v. Department of Labor & Industries, 317 U.S. 249, 87 L. Ed. 246, 63 S. Ct. 225 (1942), determined that claimant could proceed under either the ILWCA or the LHWCA. A majority of the Workers\u2019 Compensation Commission (Commission) affirmed and adopted the decision of the arbitrator. However, the circuit court of Madison County set aside the Commission\u2019s decision. For the reasons that follow, we affirm the judgment of the circuit court.\nI. BACKGROUND\nClaimant filed an application for adjustment of claim on October 26, 2005, alleging that he injured his mid-to-low back while working for respondent, National Maintenance and Repair. Prior to the arbitration hearing, respondent filed a \u201cMotion to Dismiss for Lack of Subject Matter Jurisdiction.\u201d In the motion, respondent argued that subject matter jurisdiction over claimant\u2019s workers\u2019 compensation claim lies exclusively with the LHWCA.\nMeanwhile, the matter proceeded to an arbitration hearing, at which claimant testified that his duties for respondent involved cleaning and vacuuming barges. The injury at issue occurred on August 12, 2005, while claimant was working on a vessel known as the \u201cHarry Tulodzieski.\u201d Claimant described the occurrence as follows:\n\u201cI was in the bottom of the boat. I was working with very bad lighting[;] I was having to use a flashlight. I had to walk close to a bulkhead. Didn\u2019t realize I was close to the bulkhead. The vacuum hose I was using stuck to the bottom. You have to use basically brute force to break the vacuum and when I used the force to break the vacuum I smashed my back against a pipe sticking out from the wall. It immediately threw me forward from the impact catching myself on the bulkhead and a structure beam.\u201d\nAt the time of the injury, claimant had been employed by respondent for four months. Claimant stated that prior to the injury at issue, he had never sustained an injury to his low back or sought treatment for any low-back condition. Claimant also stated that he had never filed a claim under either the ILWCA or the LHWCA for a low-back injury.\nClaimant described respondent as a \u201clocal\u201d company based in Hartford, Illinois, which offers a variety of services, including rail repair, marine repair, barge rebuilding, and barge cleaning. Claimant testified that \u201cportions\u201d of respondent\u2019s business are land based and \u201cpurely local\u201d in nature. Claimant related that his position is based in Hartford, that he clocks in and out of work there, and that he receives his paycheck there. Claimant stated that in his position with respondent he has never loaded or unloaded materials from a boat as a longshore employee. Further, his position does not require him to tie or untie barges or to assist anyone in performing those duties. Claimant added that he is not and has never been a member of the longshoremen\u2019s union. However, claimant is a member of Local 482, which is part of the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers of the AFL-CIO. Claimant also testified that the boats on which he works do not navigate the water while he is performing his duties and that he has never performed any of his job duties \u201cwhen the boat hasn\u2019t been dry docked and anchored and tied to the shore.\u201d\nOn cross-examination, claimant elaborated on his job duties, explaining that he was assigned to respondent\u2019s \u201cgas free plant,\u201d where hazardous materials such as oil, water, gasoline, and diesel fuel are removed from the bottom of any vessel prior to it being placed in dry dock for repair. In addition, during cross-examination, the following colloquy occurred between claimant and respondent\u2019s attorney:\n\u201cQ. Okay. Now I\u2019ll show you what we\u2019ve marked as Respondent\u2019s Number 4 for identification. Is that an example of what a dry dock is?\nA. I would assume, yes, because I\u2019m not a dry dock worker.\nQ. I\u2019m not asking you that but I\u2019m just saying \u2014 well, again, I\u2019m not trying to put words in your mouth. The Hank Henry that you were talking about.\nA. Harry Tulodzieski.\nQ. Okay. Was that in a dry dock like this?\nA. No.\nQ. Okay.\nA. Not yet.\nQ. It was just floating on the Mississippi River going up and down\u2014\nA. Yes.\nQ. \u2014when you were doing the vacuuming?\nA. Yes.\nQ. Okay. So it was just floating on the Mississippi. Was it attached to a barge or was it attached to shore?\nA. Attached to the barge which is attached to shore.\u201d\nBased on the foregoing evidence, the arbitrator determined that jurisdiction under the ILWCA was proper in this case. The arbitrator reasoned:\n\u201cBecause of the jurisdictional dilemma that can result between the operation of the [ILWCA] and the LHWCA, the Supreme Court in Davis [citation] created a new concept it articulated as the \u2018twilight zone\u2019, when employment is \u2018maritime-but-local.\u2019 The Court recognized that despite the many cases involving maritime-but-local doctrine [sic], it was unable to give any guiding or definite rule to determine the extent of state power in advance of litigation. To remedy the jurisdictional dilemma, the Supreme Court created the \u2018twilight zone\u2019 that, in doubtful cases, there is a regime of concurrent jurisdiction and an injured worker can elect a federal or state remedy. The Supreme Court noted that \u2018there is *** clearly a twilight zone in which the employees must have their rights determined case by case, and in which particular facts and circumstances are vital elements.\u2019 [Citation.]\nThe law is clear that a worker injured on navigable waters can receive workers\u2019 compensation benefits under state laws if his employment has no direct connection to navigation or commerce and the application of the local compensation law does not materially affect the uniformity of maritime law.\nBased on all of the evidence set forth herein, [claimant\u2019s] claim clearly falls within the \u2018twilight zone\u2019 as described by the courts. As [claimant\u2019s] employment at this local repair facility is \u2018maritime but local\u2019 in nature, there exists concurrent subject matter jurisdiction of the [ILWCA] and the [LHWCA] allowing him to elect a federal or state remedy in seeking compensation for his claim of injury.\u201d\nThe arbitrator further found that claimant sustained an injury arising out of and in the course of his employment with respondent and that his condition of ill-being is causally connected to his employment. The arbitrator awarded claimant 186h weeks of temporary total disability benefits and $8,309.60 in medical expenses.\nA majority of the Commission summarily affirmed and adopted the decision of the arbitrator and remanded the cause pursuant to Thomas v. Industrial Comm\u2019n, 78 Ill. 2d 327 (1980). Commissioner Mario Basurto dissented. He would have found that the Commission did not have jurisdiction because claimant was working as a ship laborer performing tasks related to maintenance and repair of a vessel while it was floating upon a navigable waterway. Commissioner Basurto acknowledged testimony that the vessel upon which claimant was working was moored to a barge. However, he did not find this fact sufficient to categorize claimant as having sustained a land-based injury, which would have been subject to jurisdiction under the ILWCA. The circuit court of Madison County set aside the Commission\u2019s decision. Thereafter, claimant filed the present appeal.\nII. ANALYSIS\nOn appeal, claimant argues that, contrary to the holding of the circuit court, his claim under the ILWCA is not preempted by the LHWCA. He insists that his case falls within the \u201ctwilight zone,\u201d and is therefore subject to concurrent jurisdiction, because, although he was injured while on navigable waters, his position was \u201cmaritime but local.\u201d Respondent replies that concurrent jurisdiction is not present in this case. Rather, respondent asserts, because claimant was injured while upon navigable waters and because he was engaged in vacuuming bilge water from the bottom of a vessel, an activity respondent classifies as traditionally maritime, his exclusive remedy lies with the LHWCA. Under the circumstances of this case, we agree that claimant\u2019s exclusive remedy lies with the LHWCA.\nAs a preliminary matter, we must determine the appropriate standard of review. Claimant argues that the issue presented in this appeal presents a question of fact and that the appropriate standard of review is therefore manifest weight of the evidence. Respondent counters that all relevant facts in this case are undisputed. Therefore, it asserts, the issues presented in this appeal are questions of law subject to de novo review. As set forth more thoroughly below, to resolve this dispute we will engage in a two-step analysis. Initially, we will determine whether there is jurisdiction under the LHWCA. If we find jurisdiction exists under the federal statute, we will then determine whether there is concurrent jurisdiction under state law. As a general matter, the former inquiry presents a mixed question of law and fact. See Anastasiou v. M/T World, Trust, 338 F. Supp. 2d 406, 414 n.4 (E.D.N.Y. 2004) (\u201c[Wjhether someone qualifies as an \u2018employee\u2019 under the LHWCA is a mixed question of law and fact\u201d); Wellsville Terminals Co. v. Workmen\u2019s Compensation Appeal Board, 534 Pa. 333, 334 n.1, 632 A.2d 1305, 1306 n.1 (1993) (reviewing matter as a mixed question of law and fact). However, because the facts essential to our analysis of the first inquiry are undisputed, our review involves only an application of those undisputed facts to the law. Therefore, we review the matter de novo. Fast Cash Financial Services v. Industrial Comm\u2019n, 367 Ill. App. 3d 102, 105 (2006) (noting that questions of law are subject to plenary review). Similarly, the issue whether a claim for state workers\u2019 compensation benefits is preempted by federal law presents a question of law subject to de novo review. See Coppola v. Logistec Connecticut, Inc., 283 Conn. 1, 5, 925 A.2d 257, 260 (2007) (\u201cWhether the state act constitutionally applies to claims involving injuries that occurred on the navigable waters of the United States is a pure question of law\u201d). Having determined the appropriate standard of review, we now turn to the merits of this appeal.\nAn understanding of the parties\u2019 positions and our subsequent analysis requires an extensive review of the history of the LHWCA. Enacted in 1927, the LHWCA was a congressional response to Southern Pacific Co. v. Jensen, 244 U.S. 205, 61 L. Ed. 1086, 37 S. Ct. 524 (1917), a case decided by the United States Supreme Court. The Jensen decision established a clear line of demarcation between state and federal jurisdiction when dealing with marine-related injuries. Citing the interest of promoting a uniform maritime law (see U.S. Const., art. III, \u00a72 (providing that federal courts shall have \u201cjudicial Power\u201d over \u201call Cases of admiralty and maritime Jurisdiction\u201d)), the Jensen Court held that it was unconstitutional for states to apply their workers\u2019 compensation statutes to longshoremen injured on the seaward side of the line between the shore and the sea. Jensen, 244 U.S. at 216-18, 61 L. Ed. at 1098-99, 37 S. Ct. at 529-30. This line between land and water became known as the \u201cJensen line.\u201d See Director, Office of Workers\u2019 Compensation Programs, United States Department of Labor v. Perini North River Associates, 459 U.S. 297, 306 n.14, 74 L. Ed. 2d 465, 473 n.14, 103 S. Ct. 634, 641 n.14 (1983). The effect o\u00ed Jensen\u2019s holding was that longshoremen injured on land were allowed to pursue a claim under their states\u2019 workers\u2019 compensation laws, but longshoremen injured on the seaward side of the Jensen line were left without a source of compensation. See Nacirema Operating Co. v. Johnson, 396 U.S. 212, 216, 24 L. Ed. 2d 371, 376, 90 S. Ct. 347, 350 (1969); State Industrial Comm\u2019n v. Nordenholt Corp., 259 U.S. 263, 272-73, 66 L. Ed. 933, 936, 42 S. Ct. 473, 474 (1922).\nFollowing Jensen, Congress, on two occasions, enacted legislation that would have allowed application of state workers\u2019 compensation remedies seaward of the Jensen line. See Wells v. Industrial Comm\u2019n, 277 Ill. App. 3d 379, 381 (1995). However, these attempts were struck down as unlawful delegations to the states of congressional power. Washington v. W.C. Dawson & Co., 264 U.S. 219, 227, 68 L. Ed. 646, 652, 44 S. Ct. 302, 305 (1924) (\u201cWithout doubt Congress has power to alter, amend, or revise the maritime law by statutes of general application embodying its will and judgment. This power, we think, would permit enactment of a general employers\u2019 liability law or general provisions for compensating injured employees; but it may not be delegated to the several [sjtates\u201d); Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 163-64, 64 L. Ed. 834, 840-41, 40 S. Ct. 438, 441 (1920).\nDespite the Supreme Court\u2019s rejection of congressional attempts to alleviate the harsh results generated by the strict application of Jensen\u2019s line of demarcation, the Supreme Court itself narrowed Jensen\u2019s reach. In Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 66 L. Ed. 210, 214, 42 S. Ct. 89, 90 (1921), and Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 476-77, 66 L. Ed. 321, 324, 42 S. Ct. 157, 158 (1922), the Court held that state remedies are available to workers injured on navigable waters where the worker\u2019s employment is \u201cmaritime and local in character.\u201d In Grant Smith-Porter Ship Co., the Supreme Court explained that the claimant could proceed under state law because neither his general employment nor his duties at the time of his injury had any direct relation to navigation or commerce and, therefore, application of state law could not \u201cmaterially affect any rules of the sea whose uniformity is essential.\u201d Grant SmithPorter Ship Co., 257 U.S. at 476-77, 66 L. Ed. at 325, 42 S. Ct. at 158; see also Western Fuel Co., 257 U.S. at 242, 66 L. Ed. at 214, 42 S. Ct. at 90 (finding that, in certain circumstances, application of state law \u201cwill not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations\u201d). Under the doctrine developed in these cases, \u201cif the employment of an injured worker was determined to have no direct relation to navigation or commerce, and the application of local law would not materially affect the uniformity of maritime law, then the employment would be characterized as maritime-but-local, and the State could provide a compensation remedy.\u201d Wells, 277 Ill. App. 3d at 382, citing Perini, 459 U.S. at 303, 74 L. Ed. 2d at 472, 103 S. Ct. at 639-40. Still, where an employee was injured on the navigable waters and his employment could not be categorized as \u201cmaritime but local,\u201d the employee was left without a compensation remedy. Perini, 459 U.S. at 306, 74 L. Ed. 2d at 474, 103 S. Ct. at 641.\nIn 1927, Congress, taking a cue from the Supreme Court\u2019s decision in W.C. Dawson & Co., passed the LHWCA (33 U.S.C. \u00a7901 et seq. (1927)), which successfully established a federal compensation system for workers excluded from coverage by Jensen. See Wells, 277 Ill. App. 3d at 382. In essence, the LHWCA was a gap-filling measure for those workers to whom Jensen made coverage under state law unavailable. See Coppola, 283 Conn, at 8, 925 A.2d at 262. As originally enacted, the LHWCA provided coverage for \u201cdisability or death [which] results from an injury occurring upon the navigable waters of the United States (including any dry dock)\u201d if coverage \u201cmay not validly be provided by State law.\u201d 33 U.S.C. \u00a7903(a) (1927).* The LHWCA also contained definitions of the terms \u201cemployer\u201d and \u201cemployee.\u201d As this language suggests, the LHWCA covered only employees who were injured on actual navigable waters or any dry dock. See Nacirema, 396 U.S. at 219-20, 24 L. Ed. 2d at 377-78, 90 S. Ct. at 352; Fleischmann v. Director, Office of Workers\u2019 Compensation Programs, 137 F.3d 131, 135 (2d Cir. 1998). Thus, a maritime worker injured on land was not afforded any protection under the LHWCA; rather, he had to seek a remedy under state law. McCoy v. Industrial Comm\u2019n, 335 Ill. App. 3d 723, 726 (2002). Moreover, since the LHWCA provided coverage only if no state coverage existed, employees who sustained an injury on navigable waters but could recover under state law, such as those whose employment could be characterized as maritime-but-local, could not recover under the LHWCA. Perini, 459 U.S. at 307, 74 L. Ed. 2d at 474, 103 S. Ct. at 642; McCoy, 335 Ill. App. 3d at 726.\nWhile enactment of the LHWCA was a step forward, certain aspects of the statute proved problematic. Notably, because the LHWCA and the state workers\u2019 compensation schemes were mutually exclusive, it was difficult for employees to determine whether the federal or state compensation scheme applied to a particular factual situation. See Perini, 459 U.S. at 307, 74 L. Ed. 2d at 474, 103 S. Ct. at 642; Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 718, 65 L. Ed. 2d 458, 461, 100 S. Ct. 2432, 2435 (1980); Wells, 277 Ill. App. 3d at 382. Injured workers were often compelled to make a \u201cjurisdictional guess\u201d before filing a claim, and if the worker initially chose the wrong statutory scheme, he potentially could be foreclosed from obtaining relief. Sun Ship, Inc., 447 U.S. at 718, 65 L. Ed. 2d at 461, 100 S. Ct. at 2435. As one court observed:\n\u201c[MJany injured longshoremen were effectively denied recovery, since if a worker chose a state compensation remedy and was found not to fall within the \u2018maritime but local\u2019 exception he was often left without a remedy because he would be time-barred under LHWCA. Similarly, if a worker claimed under LHWCA and was found to fall within the \u2018maritime but local\u2019 exception, he had no LHWCA remedy and might be time-barred at state law. This game was particularly treacherous for injured longshoremen because judicial determinations as to what was \u2018maritime but local\u2019 were often fundamentally inconsistent with one another.\u201d Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 944 (3d Cir. 1990).\nIn an attempt to resolve this jurisdictional dilemma, the Supreme Court decided Davis, 317 U.S. 249, 87 L. Ed. 246, 63 S. Ct. 225.\nIn Davis, a steelworker drowned in navigable waters after falling off a barge while helping to load the barge with pieces of steel from a drawbridge that was being dismantled. The deceased\u2019s widow sought benefits under the state workers\u2019 compensation act. The Washington Supreme Court held that the state could not, consistently with the federal constitution, make an award under its state compensation law to the widow of a worker drowned in a navigable waterway. The Supreme Court reversed, not because the employment was \u201cmaritime but local,\u201d but because of a new theory. See Perini, 459 U.S. at 309, 74 L. Ed. 2d at 475, 103 S. Ct. at 643; Peter, 903 F.2d at 945. The Court recognized that the LHWCA provided exclusive coverage for harbor workers and longshoremen employed upon the navigable waters, but it found that the decedent \u201coccupied] that shadowy area within which, at some undefined and undefinable point, state laws can validly provide compensation.\u201d Davis, 317 U.S. at 253, 87 L. Ed. at 248, 63 S. Ct. at 227. The Court, unable to give any guiding, definite rule to determine the extent of state power in advance of litigation, created the \u201ctwilight zone,\u201d under which cases that are \u201cdoubtful\u201d would fall and over which both federal and state courts could exercise concurrent jurisdiction. Davis, 317 U.S. at 255-58, 87 L. Ed. at 249-51, 63 S. Ct. at 228-30; see also Sun Ship, Inc., 447 U.S. at 718, 65 L. Ed. 2d at 461, 100 S. Ct. at 2435.\nThe Supreme Court expanded this regime of concurrent jurisdiction in Calbeck v. Travelers Insurance Co., 370 U.S. 114, 8 L. Ed. 2d 368, 82 S. Ct. 1196 (1962). There, the Court noted that \u201c[n]o dependable definition of the area \u2014 described as \u2018maritime but local,\u2019 or \u2018of local concern\u2019 \u2014 where state laws could apply ever emerged from the many cases which dealt with the matter.\u201d Calbeck, 370 U.S. at 119, 8 L. Ed. 2d at 372, 82 S. Ct. at 1199. As a result, the Court held that the LHWCA \u201cprovide[s] compensation for all injuries sustained by employees on navigable waters whether or not a particular injury might also have been within the constitutional reach of a state workmen\u2019s compensation law.\u201d Calbeck, 370 U.S. at 117, 8 L. Ed. 2d at 371, 82 S. Ct. at 1198. Thus, following Calbeck, concurrent jurisdiction under both the LHWCA and state workers\u2019 compensation laws also existed for injuries sustained in the maritime-but-local sphere. It is important to note, however, that neither the maritime-but-local nor the twilight-zone doctrine had any effect on exclusive federal jurisdiction in cases in which a worker is injured on navigable waters while engaged in traditional maritime activity because the essential character of such employment is not \u201cdoubtful.\u201d See Wells, 277 Ill. App. 3d at 386 (noting that since Jensen has not been overruled, it remains good law); Wellsville Terminals Co., 534 Pa. at 337, 632 A.2d at 1307 (\u201cDavis and Sun Ship have defined and narrowed the scope of Jensen. Nonetheless, maritime employees who are performing traditionally maritime functions and are injured over navigable waters, under Jensen, are constitutionally barred from recovering under any state workmen\u2019s compensation law\u201d).\nIn Sun Ship, the Supreme Court succinctly summarized the state of the law prior to 1972, when Congress amended the LHWCA:\n\u201cBefore 1972, then, marine-related injuries fell within one of three jurisdictional spheres as they moved landward. At the furthest extreme, Jensen commanded that nonlocal maritime injuries fall under the LHWCA. \u2018Maritime but local\u2019 injuries \u2018upon the navigable waters of the United States,\u2019 33 U.S.C. \u00a7903(a), could be compensated under the LHWCA or under state law. And injuries suffered beyond navigable waters \u2014 albeit within the range of federal admiralty jurisdiction \u2014 were remediable only under state law.\u201d Sun Ship, 447 U.S. at 719, 65 L. Ed. 2d at 462, 100 S. Ct. at 2436.\nIt is also significant that before Congress amended the law in 1972, individuals were entitled to coverage under the LHWCA when they satisfied a \u201csitus\u201d requirement, i.e., they were injured on the navigable waters of the United States. See P.C. Pfeiffer Co. v. Ford, 444 U.S. 69, 72, 62 L. Ed. 2d 225, 230, 100 S. Ct. 328, 332 (1979) (stating that before the 1972 amendments of the LHWCA, \u201c[a] single situs requirement in \u00a73(a) of the [LHWCA] governed the scope of its coverage\u201d). As we will see, although the 1972 amendments to the LHWCA expanded the situs requirement and further delineated the class of workers defined as \u201cemployees\u201d under the statute, employees who fell within the terms of coverage of the pre-1972 version of the LHWCA remained covered employees following adoption of the 1972 amendments. See Perini, 459 U.S. at 319, 74 L. Ed. 2d at 482, 103 S. Ct. at 648 (\u201cCongress *** assumed that injuries occurring on the actual navigable waters were covered, and would remain covered\u201d following enactment of the 1972 amendments).\nThe 1972 amendments to the LHWCA brought about significant change. As alluded to above, principal among these changes, the 1972 amendments expanded the \u201cnavigable waters\u201d situs to include certain adjoining land areas. 33 U.S.C. \u00a7903(a) (Supp. 1972). In conjunction with this expansion of the situs landward, Congress amended the definition of the individuals covered by the LHWCA. As the Supreme Court observed:\n\u201cPreviously, so long as a work-related injury occurred on navigable waters and the injured worker was not a member of a narrowly defined class, the worker would be eligible for federal compensation provided that his or her employer had at least one employee engaged in maritime employment. It was not necessary that the injured employee be so employed. [Citation.] But with the definition of \u2018navigable waters\u2019 expanded by the 1972 Amendments to include such a large geographical area, it became necessary to describe affirmatively the class of workers Congress desired to compensate. It therefore added the requirement that the injured worker be \u2018engaged in maritime employment,\u2019 which it defined to include \u2018any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but... not... a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.\u2019 \u201d Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 264, 53 L. Ed. 2d 320, 333, 97 S. Ct. 2348, 2357 (1977), quoting 33 U.S.C. \u00a7902(3) (Supp. 1972).\nIn addition, the 1972 amendments removed the requirement that federal compensation would be available only if recovery \u201cmay not validly be provided by State law,\u201d a provision that the Supreme Court had effectively read out of the statute in Calbeck. Perini, 459 U.S. at 314, 74 L. Ed. 2d at 479, 103 S. Ct. at 645; McCoy, 335 Ill. App. 3d at 727.\nThe effect of the 1972 amendments was to \u201cchange[ ] what had been essentially only a \u2018situs\u2019 test of eligibility for compensation to one looking to both the \u2018situs\u2019 of the injury and the \u2018status\u2019 of the injured.\u201d Northwest Marine Terminal Co., 432 U.S. at 264-65, 53 L. Ed. 2d at 334, 97 S. Ct. at 2357; see also P.C. Pfeiffer Co., 444 U.S. at 73, 62 L. Ed. 2d at 230, 100 S. Ct. at 332 (noting that the 1972 amendments to the LHWCA \u201creplaced] the single-situs requirement with a two-part situs and status standard\u201d). As indicated previously, however, the \u201cstatus\u201d test outlined in the 1972 amendments was not intended to apply to employees injured while on navigable waters because such injuries would have been covered under the pre-1972 version of the LHWCA, which contained only a \u201csitus\u201d requirement. Perini, 459 U.S. at 324, 74 L. Ed. 2d at 485, 103 S. Ct. at 650-51; see also Herb\u2019s Welding, Inc. v. Gray, 470 U.S. 414, 424 n.10, 84 L. Ed. 2d 406, 415 n.10, 105 S. Ct. 1421, 1428 n.10 (1985) (\u201cThis view of \u2018maritime employment\u2019 does not preclude benefits for those whose injury would have been covered before 1972 because it occurred \u2018on navigable waters.\u2019 [Citation.]\u201d); Fleischmann, 137 F.3d at 135 (\u201cBecause Congress intended the 1972 amendments to expand the scope of coverage, an employee can still establish coverage by demonstrating that he or she satisfies the situs test as it existed before it was expanded by the 1972 amendments, without having to make any further showing regarding status as an employee under \u00a7902(3)\u201d); Harwood v. Partredereit AF 15.5.81, 944 F.2d 1187, 1191 (4th Cir. 1991) (\u201cWe hold that seaward coverage under the LHWCA does not depend on the nature of the worker\u2019s duties. The 1972 amendments to [the] LHWCA do not affect the pre-1972 meaning of \u2018maritime employment\u2019 as to workers injured on navigable waters of the United States, because one injured on navigable waters in the course of his employment satisfies both the pre- and post-1972 LHWCA meaning of \u2018maritime employment\u2019 \u201d).\nThe main impact of the 1972 amendments to the LHWCA was felt in the sphere of land-based injuries. The Supreme Court held that the 1972 amendments were intended to \u201csupplement ], rather than supplant ], state compensation law.\u201d Sun Ship, 447 U.S. at 720, 65 L. Ed. 2d at 463, 100 S. Ct. at 2436. As a result, the sphere of concurrent jurisdiction expanded so that states could apply their workers\u2019 compensation scheme to land-based injuries falling within the LHWCA. Thus, since Davis first adopted a sphere of concurrent jurisdiction under the \u201ctwilight zone\u201d theory, the regime of concurrent jurisdiction has expanded while the area of exclusive jurisdiction under the LHWCA has contracted. To summarize, then, in the wake of Sun Ship, exclusive jurisdiction under the LHWCA is available only with respect to injuries sustained on navigable waters by maritime employees whose employment is not \u201clocal\u201d in nature, i.e., for a worker who is injured upon navigable waters while performing a traditional maritime activity. McElheney v. Workers\u2019 Compensation Appeal Board, 908 A.2d 960, 964 (Pa. Commw. 2006), aff\u2019d, 596 Pa. 48, 940 A.2d 351 (2008); McCoy, 335 Ill. App. 3d at 728-29; Wells, 277 Ill. App. 3d at 386-87. However, concurrent jurisdiction under both the LHWCA and state workers\u2019 compensation statutes exists for maritime-but-local injuries occurring on navigable waters, \u201cdoubtful\u201d cases that fall within the \u201ctwilight zone,\u201d and for land-based injuries that meet the situs and status tests set forth in the 1972 amendments to the LHWCA. See McElheney, 908 A.2d at 964; Wells, 277 Ill. App. 3d at 386-87; 9 A. Larson & L. Larson, Worker\u2019s Compensation Law \u00a7145.07[4], at 145 \u2014 125 through 145 \u2014 126 (2007).\nAs the foregoing history illustrates, in determining whether the LHWCA applies to a particular employee, a dual inquiry is used. First, a court must determine if the employee was working on navigable waters at the time of his injury. See Herb\u2019s Welding, Inc., 470 U.S. at 424 n.10, 84 L. Ed. 2d at 415 n.10, 105 S. Ct. at 1428 n.10; Fleischmann, 137 F.3d at 135; Harwood, 944 F.2d at 1191. If so, and the employee establishes the remainder of the LHWCA\u2019s requirements, there is jurisdiction under federal law. See Perini, 459 U.S. at 324, 74 L. Ed. 2d at 485, 103 S. Ct. at 650-51; Harwood, 944 F.2d at 1191. If the worker was not injured on navigable waters, he must meet the \u201csitus\u201d and \u201cstatus\u201d requirements established in the post-1972 version of the LHWCA to obtain coverage under federal law. That is, the employee meets the \u201csitus\u201d requirement by establishing that his injury occurred at one of the locations enumerated in section 903(a) of the LHWCA (33 U.S.C. \u00a7903(a) (2000)) and the \u201cstatus\u201d requirement by showing that he was engaged in \u201cmaritime employment\u201d (see 33 U.S.C. \u00a7902(3) (2000)) at the time the injury was sustained.\nWe now turn to the jurisdictional question presented here, beginning with a determination of whether coverage under the LHWCA is available to claimant. In Perini, the Supreme Court set forth a test to determine whether an employee is injured upon the actual navigable waters under the pre-1972 version of the LHWCA. Perini, 459 U.S. at 306-07, 74 L. Ed. 2d at 474, 103 S. Ct. at 641-42. First, the worker has to show that he did not fall within the category of employees excluded from coverage. Second, the worker has to establish that his injury arose out of and in the course of his employment. Third, the worker has to be employed by an employer who had at least one worker employed in maritime employment upon the navigable waters of the United States. Finally, the worker has to establish that his disability or death resulted from an injury occurring upon the navigable waters of the United States.\nApplying the test enunciated by the Supreme Court in Perini, we find that claimant is eligible for coverage under the pre-1972 version of the LHWCA. Claimant is not excluded from coverage because he is neither a \u201cmaster or a member of a crew\u201d nor \u201cengaged by the master to load or unload or repair any small vessel under eighteen tons net.\u201d Therefore, by exclusion, claimant qualifies as an \u201cemployee\u201d under the pre-1972 version of the LHWCA. See 33 U.S.C. \u00a7902(3) (1927). In addition, the arbitrator determined that claimant\u2019s injury arose out of and in the course of his employment, and respondent does not challenge this finding on appeal. Moreover, claimant was employed by an employer who has at least one worker employed in maritime employment upon the navigable waters of the United States. In this regard, we point out that respondent is a company that offers services, including marine repair and ship rebuilding, businesses that the Supreme Court has found to qualify as maritime employment. See John Baizley Iron Works v. Span, 281 U.S. 222, 232, 74 L. Ed. 819, 822, 50 S. Ct. 306, 308 (1930) (\u201cRepairing a completed ship lying in navigable waters has direct and intimate connection with navigation and commerce\u201d). Finally, claimant\u2019s injury occurred upon the navigable waters of the United States. At the time of the accident, claimant was aboard a vessel floating in the Mississippi River. In sum, claimant was injured during the course of his employment on navigable waters while employed by a statutory \u201cemployer.\u201d Thus, he qualifies for coverage under the LHWCA.\nWhile jurisdiction under the LHWCA is clear, the more crucial question is whether there is also jurisdiction under the ILWCA. As noted at the beginning of our analysis, claimant asserts that his claim falls within the \u201ctwilight zone\u201d because, although he was injured while on navigable waters, his position was \u201cmaritime but local.\u201d Thus, claimant insists, jurisdiction is proper under either federal law or state law. We disagree.\nThe parameters of the \u201ctwilight zone\u201d and the \u201cmaritime but local\u201d doctrine are not well defined. Although they are related, they are separate theories of concurrent jurisdiction. See Calbeck, 370 U.S. at 128, 8 L. Ed. 2d at 377, 82 S. Ct. at 1204 (noting that Davis, which created the concept of a \u201ctwilight zone,\u201d was not predicated on the ground that the employment was \u201cmaritime but local\u201d). The \u201ctwilight zone\u201d applies to areas in which there are \u201cdoubtful and difficult factual questions.\u201d Davis, 317 U.S. at 257, 87 L. Ed. at 251, 63 S. Ct. at 229; see also Wells, 277 Ill. App. 3d at 383; Garrisey v. Westshore Marina Associates, 2 Wash. App. 718, 724, 469 P.2d 590, 594 (1970). We have defined the bounds of the \u201ctwilight zone\u201d by exclusion, stating that the doctrine \u201cdoes not apply to employees who are engaged in traditional maritime employment and are injured over navigable waters.\u201d Wells, 277 Ill. App. 3d at 383. In contrast, it has been held that a claim falls within the \u201cmaritime but local\u201d doctrine if the worker\u2019s injury occurs upon the navigable waters of the United States, the injured worker\u2019s employment has no direct connection to navigation or commerce, and the application of local law would not materially affect the uniformity of maritime law. See Perini, 459 U.S. at 306, 74 L. Ed. 2d at 474, 103 S. Ct. at 641. In this case, we find that claimant\u2019s employment does not fall within either the \u201ctwilight zone\u201d doctrine or the \u201cmaritime but local\u201d doctrine.\nThis claim does not fall within the \u201ctwilight zone\u201d because this is not a \u201cdoubtful\u201d case. See Wells, 277 Ill. App. 3d at 387-88 (pointing out that employees engaged in traditional maritime activities who are injured over navigable waters fall outside the \u201ctwilight zone\u201d). As explained above, if an employee is injured on navigable waters while engaged in a traditional maritime activity, jurisdiction under the LHWCA is exclusive. This is such a case. At the time of his injury, claimant was engaged in ship repair upon the navigable waters of the United States. Ship repair is a traditional maritime activity. John Baizley Iron Works, 281 U.S. at 232, 74 L. Ed. at 822, 50 S. Ct. at 308; see also Flowers v. Travelers Insurance Co., 258 F.2d 220, 222 (5th Cir. 1958); Wellsville Terminals Co., 532 Pa. at 338, 632 A.2d at 1308. The fact that claimant was merely preparing the ship for repair does not convert this into a \u201ctwilight zone\u201d case. Claimant testified that employees in the \u201cgas free plant\u201d were responsible for removing hazardous materials such as oil, water, gasoline, and diesel fuel from the bottom of vessels before they are placed in dry dock for repair. By removing hazardous materials from the work environment, the gas-free-plant employees ensure the safety of the workers repairing the vessels. Undoubtedly, then, these employees are \u201cengaged in an activity that is an integral part of and essential to\u201d the overall process of ship repair. Chesapeake & Ohio Ry. Co. v. Schwalb, 493 U.S. 40, 47, 107 L. Ed. 2d 278, 287, 110 S. Ct. 381, 385-86 (1989). Thus, claimant does not fall within the \u201ctwilight zone.\u201d See also Flowers, 258 E2d at 222 (noting, \u201c[B]oth before and since the time of Davis, the doing of repair work on an existing vessel has been treated as so clearly maritime in nature that attempted application of State compensation laws would collide with that essential uniformity which was the very breath of Jensen\u201d).\nWe also find unpersuasive claimant\u2019s attempt to shoehorn his employment into the \u201cmaritime but local\u201d sphere. Claimant suggests that he falls within the \u201cmaritime but local\u201d doctrine because he is not a longshoreman and has never engaged in any duties of a longshoreman; he is not a member of the longshoremen\u2019s union; respondent is a \u201cstrictly local\u201d company; \u201cportions\u201d of respondent\u2019s business are land based and \u201cpurely local\u201d; claimant\u2019s only duties are cleaning or vacuuming barges; he clocks in and out at Hartford, Illinois, and receives his paycheck there; when he performs his duties the vessels are tied to land and his power source comes from utilities which are strictly land based; and at no time has he ever worked on a moving barge. We are not persuaded by any of these claims.\nFirst, the fact that claimant is not a longshoreman, has never performed any longshoring duties, and is not a member of the longshoremen\u2019s union is irrelevant. While longshoring is an example of a traditional maritime activity (see Wells, 277 Ill. App. 3d at 386), it is not the only such activity. As noted above, ship repair has also been classified by the United States Supreme Court as a traditional maritime activity. John Baizley Iron Works, 281 U.S. at 232, 74 L. Ed. at 822, 50 S. Ct. at 308. Moreover, membership in a particular union has never been deemed a touchstone in determining the exclusivity of jurisdiction under the LHWCA. See Northeast Marine Terminal Co., 432 U.S. at 268 n.30, 53 L. Ed. 2d at 336 n.30, 97 S. Ct. at 2359 n.30 (\u201cWe cannot assume that Congress intended to make union membership the decisive factor. The vagaries of union jurisdiction are unrelated to the purposes of the [LHWCA]\u201d). Second, we are unconvinced that respondent is a \u201cstrictly local\u201d company as claimant suggests. There is no evidence in the record supporting such an assertion. Moreover, the name of respondent\u2019s business \u2014 National Maintenance and Repair \u2014 as well as its location on the Mississippi River, one of the longest rivers in the United States and one of the most important transportation channels in the interior of the country, would seem to belie such a claim. Third, that \u201cportions\u201d of respondent\u2019s business are land based and \u201cpurely local,\u201d that claimant clocked in and out at Hartford, and that he received his paycheck there are not determinative. Claimant does not suggest that his employment is \u201cpurely local.\u201d Moreover, as we note above, ship repair has been categorized by the Supreme Court as a traditional maritime activity which has a \u201cdirect and intimate connection with navigation and commerce.\u201d John Baizley Iron Works, 281 U.S. at 232, 74 L. Ed. at 822, 50 S. Ct. at 308; see also Wells, 277 Ill. App. 3d at 387 (rejecting similar claims). Fourth, the fact that the vessels upon which claimant works are somehow connected to land does not make his employment land based. See Wellsville Terminals Co., 534 Pa. at 338, 632 A.2d at 1308 (dismissing the fact that the barge upon which the claimant was injured was tethered to the shore as \u201can extraordinarily tenuous connection with the land\u201d because it is not uncommon for ships undergoing repairs to be tied to the land). Finally, there is no requirement that the vessel upon which employee works be moving. It is sufficient that claimant worked upon the navigable waters of the United States. Because claimant has not established that his employment lacks a direct connection to navigation or commerce and that the application of local law would not materially affect the uniformity of maritime law, we conclude that his employment does not fall within the \u201cmaritime but local\u201d doctrine.\nIn sum, we find that the Commission did not have subject matter jurisdiction to hear claimant\u2019s case. We note, however, that despite our holding, claimant is not necessarily left without a remedy. The LHWCA provides that the right to compensation thereunder is barred unless a claim is filed within one year after the injury. 33 U.S.C. \u00a7913(a) (2000). However, the statute also contains a tolling provision which, if applicable, would allow claimant to proceed under the LHWCA. 33 U.S.C. \u00a7913(d) (2000) (providing, \u201cWhere recovery is denied to any person, in a suit brought at law or in admiralty to recover damages in respect of injury or death, on the ground that such person was an employee and that the defendant was an employer within the meaning of this chapter and that such employer had secured compensation to such employee under this chapter, the [one-year statute of limitations] shall begin to run only from the date of termination of such suit\u201d); see also Ingalls Shipbuilding Division, Litton Systems, Inc. v. Hollinhead, 571 F.2d 272 (5th Cir. 1978).\nIII. CONCLUSION\nFor the reasons set forth above, we affirm the judgment of the circuit court of Madison County, which set aside the decision of the Commission.\nAffirmed.\nMcCULLOUGH, EJ., and GREIMAN, HOLDRIDGE, and DONOVAN, JJ., concur.\nThe full text of the 1927 version of section 903(a) (33 U.S.C. \u00a7903(a) (1927)) reads:\n\u201c(a) Compensation shall be payable under this chapter in respect [to] disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any dry dock) and if recovery for the disability or death through the workmen\u2019s compensation proceedings may not validly be provided by State law. No compensation shall be payable in respect of the disability or death of\u2014\n(1) A master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net; or\n(2) An officer or employee of the United States or any agency thereof or of any State or foreign government, or of any political subdivision thereof.\u201d\nThe term \u201cemployer\u201d was defined as \u201can employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States (including any dry dock).\u201d 33 U.S.C. \u00a7902(4) (1927). The term \u201cemployee\u201d was described as a class of covered workers by exclusion: \u201cThe term \u2018employee\u2019 does not include a master or member of a crew of any vessel, nor any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.\u201d 33 U.S.C. \u00a7902(3) (1927).\nThe 1972 version of section 903(a) of the LHWCA provided in relevant part:\n\u201cCompensation shall be payable under this chapter in respect of disability or death *** if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, [dismantling,] or building a vessel).\u201d 33 U.S.C. \u00a7903(a) (Supp. 1972).\nThe 1972 version of section 902(3), which defines \u201cemployee,\u201d provided:\n\u201cThe term \u2018employee\u2019 means any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harborworker including a ship repairman, shipbuilder, and shipbreaker, but such term does not include a master or member of a crew of any vessel, or any person engaged by the master to load or unload or repair any small vessel under eighteen tons net.\u201d 33 U.S.C. \u00a7902(3) (Supp. 1972).\nThus, the definition of \u201cemployee,\u201d originally one of exclusion in the 1927 version of the statute, became one of inclusion.\nSince Northeast Marine Terminal Co. was decided, Congress has again amended the definition of \u201cemployee\u201d to exclude from the coverage of the LHWCA other classes of individuals. See 33 U.S.C. \u00a7902(3) (2000). Claimant does not suggest that he falls into any of these excluded classes, and they are not relevant to our analysis.\nSun Ship reaffirmed the continued existence of a \u201ctwilight zone\u201d in which there is concurrent jurisdiction under the LHWCA and state workers\u2019 compensation law, as well as Calbeck\u2019s finding of concurrent jurisdiction under the maritime-but-local doctrine. Sun Ship, 447 U.S. at 719-20, 65 L. Ed. 2d at 462-63, 100 S. Ct. at 2436.\nThe test set forth in Perini actually consisted of five parts. However, as noted above, the fifth element, which required the injured worker to show that recovery was \u201cnot validly *** provided by State law\u201d pursuant to section 903(a) of the LHWCA (33 U.S.C. \u00a7903(a) (1927)), was effectively read out of the statute in Calbeck prior to claimant\u2019s injury in this case. See Perini, 459 U.S. at 314, 74 L. Ed. 2d at 479, 103 S. Ct. at 645; McCoy, 335 Ill. App. 3d at 727.\nWe are cognizant that the Supreme Court\u2019s position on whether ship repair is a traditional maritime activity has, at times, appeared inconsistent. For instance, in Bethlehem Steel Co. v. Moore, 335 U.S. 874, 93 L. Ed. 417, 69 S. Ct. 239 (1948), the Supreme Court, in a per curiam order, let stand a state court decision (see Moore\u2019s Case, 323 Mass. 162, 80 N.E.2d 478 (1948)) allowing a ship repairman to collect benefits under a state workers\u2019 compensation scheme. Similarly, in Baskin v. Industrial Accident Comm\u2019n, 338 U.S. 854, 94 L. Ed. 523, 70 S. Ct. 99 (1949), the Supreme Court, also in a per curiam order, remanded the matter for reconsideration in light of Bethlehem Steel Co. The state court in Baskin had originally denied the request of the claimant, who was a ship repairman, to seek benefits under the state worker\u2019s compensation law (Baskin v. Industrial Accident Comm\u2019n, 89 Cal. App. 2d 632, 201 P.2d 549 (1949)), a situation it remedied on remand from the Supreme Court (see Baskin v. Industrial Accident Comm\u2019n, 97 Cal. 2d 257, 217 P.2d 733 (1950)). We note that Bethlehem Steel Co. and Baskin are distinguishable in that a great deal of the claimants\u2019 time in those cases was spent on shore. In contrast, according to claimant\u2019s testimony, his duties involved working aboard vessels on navigable waters. Thus, this case is more aligned with John Baizley Iron Works, 281 U.S. 222, 74 L. Ed. 819, 50 S. Ct. 306.", "type": "majority", "author": "JUSTICE GROMETER" } ], "attorneys": [ "Thomas C. Rich, of Thomas C. Rich, EC., of Fairview Heights, for appellant.", "Eugene F. Keefe, of Keefe, Campbell & Associates, of Chicago, for appellee." ], "corrections": "", "head_matter": "CECIL UPHOLD, Appellant, v. THE ILLINOIS WORKERS\u2019 COMPENSATION COMMISSION et al. (National Maintenance & Repair, Appellee).\nFifth District (Illinois Workers\u2019 Compensation Commission Division)\nNo. 5 \u2014 07\u20140669WC\nOpinion filed September 24, 2008.\nThomas C. Rich, of Thomas C. Rich, EC., of Fairview Heights, for appellant.\nEugene F. Keefe, of Keefe, Campbell & Associates, of Chicago, for appellee." }, "file_name": "0567-01", "first_page_order": 583, "last_page_order": 601 }