ALASKA WORKERS' COMPENSATION BOARD



ALASKA WORKERS' COMPENSATION BOARD

P.O. Box 25512 Juneau, Alaska 99802-5512

| |) | |

|TUNG THANH NGUYEN, et. al. |) | |

| |) | |

|Employees, |) |DECISION AND ORDER |

|Applicants |) | |

| |) |AWCB Case Nos. 199522251, 199522252, |

|v. |) |199522253, 199522254, 199522255, |

| |) |199522256, 199522257, 199522258, |

|TYSON SEAFOOD GROUP, |) |199522259 |

|Employer, |) | |

| |) |AWCB Decision No. 99-0229 |

|and |) | |

| |) |Filed with AWCB Fairbanks, Alaska |

|OLD REPUBLIC INSURANCE, |) |on November 12 , 1999 |

|Insurer, |) | |

|Defendants. |) | |

| |) | |

| | | |

The defendants’ petition for dismissal was heard on the written record at Anchorage, Alaska on November 2, 1999. Attorney Adam Chanak represents the employees; attorney Laura Farley represented the defendants. The record closed when we deliberated on November 2, 1999.

Issue

Whether the Alaska Workers Compensation Board has jurisdiction over this case.

SUMMARY OF THE EVIDENCE

The employees claim to have suffered a work-related injury on August 17-24, 1995, while working on the Arctic Enterprise, a fish processing vessel owned by the employer, operating at the time of injury in navigable waters off Alaska. The employees asserts that during this period, there were a series of ammonia gas leaks in the area where the employees were working. As a result, the employees allegedly sustained severe, painful and temporarily disabling symptoms including, but not limited to: blurry vision, "swimmer's ear", breathing difficulty, "heavy chest", weakness, chills, headaches, dizziness, and other symptoms. The employees assert the work conditions became so bad they were forced to quit their job on August 24, 1995.

The employees returned to shore and traveled to Seattle. They came under the medical care of Michael Shamseldin, M.D., at Medalia Healthcare who referred them to John Huseby, M.D., a pulmonary specialist at the Polyclinic. Two of the employees were further referred to the Public Health Department for tuberculosis related issues. The claimants assert none of their medical bills or other related benefits has been paid.

The defendants contend this claim is covered exclusively by the Jones Act and we are without jurisdiction to hear this case. The employees assert we have concurrent jurisdiction with the Jones Act, by law and by contract.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

AS 23.30.055, entitled “Exclusiveness of liability” provides that,

“The liability of an employer prescribed in AS 23.30.045 is exclusive and in place of all other liability of the employer and any fellow employee to the employee . . . . However, if an employer fails to secure payment of compensation as required by this chapter, an injured employee . . .may elect to claim compensation under this chapter, or to maintain an action against the employer at law or in admiralty for damages on account of the injury or death. . . .

23.30.011 provides:

If an employee, while working outside the territorial limits of this state, suffers an injury on account of which the employee . . .would have been entitled to the benefits provided by this chapter had the injury occurred in this state, the employee . . .shall be entitled to the benefits provided by this chapter, if at the time of the injury . . .(1) the employee’s employment is principally localized in this state.”

The Alaska Supreme Court opinions in Anderson v. Alaska Packers Association, 635 P.2d 1182 (Alaska 1981), and Cordova Fish and Cold Storage v. Estes, 370 P.2d 180 (Alaska 1962), provide the legal structure for deciding jurisdiction under the Alaska Workers' Compensation Act for maritime-related injuries. Anderson lays out a jurisdictional framework. The court in Anderson held that an injured offshore fisherman was a "seaman" under the exclusive jurisdiction of federal statutes, but local maritime injuries involving substantial local state interest can be under concurrent federal and state jurisdiction ("local interest" or "twilight zone" jurisdiction). Anderson, 635 P.2d at 1184-1186. In Estes the court found that a crab fisherman's work in the inland waterways and on shore were so local in nature as to render state jurisdiction more appropriate than federal maritime jurisdiction. Estes, 370 P.2d at 182, 183.

The Alaska Workers' Compensation Board has consistently followed the court's jurisdictional analysis. In Stone v. International Marine Carriers, AWCB Decision No. 93-0216 (August 30, 1993), the board found a sailor, injured casting off lines while his vessel, was still docked was still a "seaman" under the jurisdiction of admiralty law. The board concluded the federal Suits in Admiralty Act and the Public Vessels Act barred Stones recovery under state law. In Freel v. Alaskan Observers, Inc., AWCB Decision No. 93-0051 (March 2, 1993), the board found a fishery observer not to be a "seaman" covered by federal statute. It concluded she was under the jurisdiction of state law for purposes of recovery for her injury while on duty, passing through the Anchorage airport.

The board has applied the same rationale to questions of jurisdiction over fish processors. In Lopez-Nieves v. Fishing Co. of Alaska, AWCB Decision No. 98-0105 (April 24, 1998) and Kwak v. Arctic Storm, Inc., AWCB Decision No. 91-0185 (June 21, 1991), the board deferred to exclusive federal jurisdiction based on the evidence that the employees worked on a fish processing vessel predominantly on the high seas, outside of Alaskan waters.

Nevertheless, based on the "local interest" or "twilight zone" exception to exclusive federal jurisdiction over maritime injuries discussed in Anderson, 635 P.2d at 1184, and by Professor Arthur Larson in 9 A. Larson, The Law of Workmen' s Compensation, §90.41 at 16-512 to 16-522 (1997), the board has consistently found injuries suffered by fish processors working aboard floating processing vessels in navigable waters along Alaska's coast fall within the jurisdiction of the Alaska Workers' Compensation Act. DeCastro v. Boomer Fisheries Corp., AWCB No. 96-0023 (January 17, 1996); Lechton v. Crusader Fisheries, AWCB No. 90-0237 (September 25, 1990); Santamaria v. Arctic Enterprises, Ltd. et. al., AWCB No. 87-0151 (July 9, 1987). In each case the board found jurisdiction based on the nature and location of the processors' work.

At the time the employees went to work for the employer in this case, a contract was signed which provides at clause 9: “Insurance. While serving aboard the Vessel, Crew Member shall be covered by Alaska State worker’s compensation insurance . . . .” The contract was drawn by the Employer and is to be construed against the employer.

Seamen who come within the federal maritime jurisdiction for tort claims under the Jones Act, 46 USC 688, can waive the federal remedy and elect to proceed under the Workmen’s Compensation Act. See 1963 Opinion of Alaska Attorney General, No. 28.

In Bodzai v. Arctic Fjord, Inc.,____P.2d____, Supreme Court No. S-8828 (Alaska, October 15, 1999) the Alaska Supreme Court discussed whether employment agreements, signed by a crewmember, preclude access to other remedies provided by law. Specifically, the Court described “maintenance and cure” as follows:

“’Maintenance’ is the right of a seaman to food and lodging if he

falls ill or becomes injured while in the service of the ship. ‘Cure’ is the right to necessary medical services. Both extend to the maximum point of recovery.” This duty on the employer’s part is an absolute one. The duty includes payment of the seaman’s wages “at least so long as the voyage is continued.”

The court also discussed Brown v. State of Alaska and Division of Marine Highway Systems, 816 P.2d 1368 (1991), as follows:

[t]he court quoted the Supreme Court of the United States for the proposition that “[t]he duty to provide maintenance and cure is imposed by the law itself as one annexed to the employment. Contractual it is in the sense that it has its source in a relation which is contractual in origin, but given the relation, no agreement is competent to abrogate the incident.” The court further underlined this point by quoting from another Supreme Court case that held that “[w]hen the seaman becomes committed to the service of the ship the maritime law annexes a duty that no private agreement is competent to abrogate.” Further, we noted approvingly in Brown that “[t]he federal courts have consistently stated that sailors’ rights to maintenance and cure cannot be abrogated by contract.” (Footnotes omitted.)

Brown is an Alaska Supreme Court case involving a state employee hired as a marine engineer, who was injured while working onboard a vessel in the scope of his employment as a sailor. His union-negotiated employment contract provided that he was entitled to Alaska Workers’ Compensation benefits in lieu of his remedies for wages, maintenance, cure, unseaworthiness and negligence. Brown suffered a knee injury and received benefits under Alaska Workers’ Compensation Act, including time loss benefits, medical payments and vocational rehabilitation. He also brought an admiralty/Jones Act action against the State of Alaska in the U.S. District Court. Upon examining the employment contract, the Court held that a sailor could not bargain away his admiralty/Jones Act rights in exchange for workers’ compensation benefits. Based on the foregoing discussion, we find an injured worker who contracts to obtain workers’ compensation coverage, may legitimately claim both workers’ compensation and admiralty/Jones Act benefits.

In sum, although a worker cannot be held to choose state workers’ compensation in lieu of Jones Act and admiralty relief, we find the worker may elect to pursue workers’ compensation benefits. See, also, State Department of Public Safety vs. Brown, 794 P.2d 108 (Alaska, 1990) (AS 23.30.055 cannot deprive a state employed maritime worker who has already accepted worker’s compensation benefits from suing the State under the Jones Act, because AS 09.50.250 waives the sovereign immunity of the state as to claims brought in superior court under federal law for torts sounding in admiralty.)

Based on our review of the law and facts cited above, we find the employees in this case may pursue a workers’ compensation claim within the State of Alaska. Accordingly, we conclude the defendants’ petition to dismiss must be denied.

ORDER

The defendants’ petition for dismissal is denied and dismissed.

Dated at Anchorage, Alaska this 12th day of November, 1999.

ALASKA WORKERS' COMPENSATION BOARD

_________________________________

Fred Brown, Designated Chairman

_________________________________

S. T. Hagedorn, Member

APPEAL PROCEDURES

This compensation order is a final decision. It becomes effective when filed in the office of the Board unless proceedings to appeal it are instituted. Proceedings to appeal must be instituted in Superior Court within 30 days of the filing of this decision and be brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.

RECONSIDERATION

A party may ask the Board to reconsider this decision by filing a petition for reconsideration under AS 44.62.540 and in accordance with 8 AAC 45.050. The petition requesting reconsideration must be filed with the Board within 15 days after delivery or mailing of this decision.

MODIFICATION

Within one year after the rejection of a claim or within one year after the last payment of benefits under AS 23.30.180, 23.30.185, 23.30.190, 23.30.200 or 23.30.215 a party may ask the Board to modify this decision under AS 23.30.130 by filing a petition in accordance with 8 AAC 45.150 and 8 AAC 45.050.

CERTIFICATION

I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of TUNG THANH NGUYEN, et. al., employees / applicants; v. TYSON SEAFOOD GROUP, employer; OLD REPUBLIC INSURANCE, insurer / defendants; Case Nos. 199522251-199522259; dated and filed in the office of the Alaska Workers' Compensation Board in Fairbanks, Alaska, this 12th day of November, 1999.

_________________________________

Lora Eddy, Clerk

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