CHARLES D. KELLY,		)
				)
Employee,			)	DECISION AND ORDER
Applicant,			)	AWCB Case No. 199805226
				)	AWCB Decision No. 99-0217
v.				)
				)	Filed with AWCB Juneau
NELBRO PACKING CO.,		)	November 1, 1999
				)
Employer,			)
				)
and				)
				)
ALASKA PACIFIC ASSURANCE,	)
				)
Insurance,			)
Defendants.			)
				)

We heard the employee’s claim for benefits on October 12, 1999 at Juneau, Alaska. Attorney Joseph Kalamarides represented the employee. Attorney Timothy A. McKeever represented the employer and insurer ("employer"). We allowed the employee to submit an amended request for attorney fees, and a response from the employer by October 21, 1999. We closed the evidentiary record at the conclusion of the hearing, on October 12, 1999.

1. Whether the employee was a "commercial fisherman" as defined by AS 16.05.940(B)(4) and, therefore, ineligible for workers’ compensation benefits under AS 23.30.230(6).

2. Whether the employee’s injury occurred within the course and scope of his employment under AS 23.30.395(2).

The employee worked as a head roe technician for the employer. He worked out of Sitka, Alaska, on board a tender ship contracted to carry fish for the employer, going to commercial fishing boats to determine the percentage of roe in caught herring. The employee arrived in Sitka on March 16, 1998, the beginning of the herring season. The employer, a fish processing company, paid for the employee's transportation to Sitka from his home in Olympia, Washington. The employer paid the employee $150 per work day plus expenses, including meals if not eaten aboard the vessel. The employee had a bunk on the tender and was entitled, but not required, to receive his meals in the vessel's galley at no charge. He initially lived on the tender Sea Falcon, but later transferred to the Logger. Also, a company car was available to him for transportation while in Sitka. Once the herring opening was over, he was to fly home. The employer paid wages for all the employee’s travel time.

Commercial fisherman caught the herring from fishing vessels with large dragnets. After the herring was brought to the side of the ship, but while still remaining in the water, the employee would scoop up approximately 10 kilograms of herring in a small net. He would then bring those fish onto the ship’s deck and test the herring for their roe content. This testing involved cutting the fish open and weighing the roe and then comparing it to the total weight of the fish. If the amount of herring roe was of the right percentage, then a technician pumped the fish from the nets to the tender. If the employee deemed the tested herring unacceptable, the fishermen released the rest of the herring.

The transfer of the acceptable herring from the fishing boat to the tender was time-consuming. This process would continue even after the herring opening closed. Once the herring were loaded onto the tender, the fish were transported for processing. As head roe technician, The employee had additional duties that included coordinating the tenders and filling out paperwork.

The employee worked late into the evening of March 16, 1998, on the Sea Falcon. The next morning, St. Patrick’s Day, the employee transferred to the Logger. Sometime that day, he received a call from his boss, Mike Strange. There were fifty tons of fish left on a fishing boat. The employer made arrangements to pump the fish into a freezer plant on a dock in Sitka. The employee boarded the fishing boat and rode over to the other dock. He tested the hold to make sure the herring was of the quality that the employer demanded. However, the boat was in line and could not be unloaded until a later time.

The employee left work to get a sandwich in town. He and a friend, Larry Durst, took a company vehicle, and went to the Pioneer Bar. At the Pioneer Bar, the employee ordered a drink and a sandwich. While waiting for his sandwich, the employee had a couple of more drinks. While the employee was visiting with friends, he heard a commotion at the other end of the bar. Larry Durst was involved in a confrontation with an individual named Greg Lutton over a fur-trapping dispute from the past winter. Durst had accused Lutton in the past of stealing from Durst's traps and a brief altercation ensued between Durst and Lutton. The employee was not involved in the confrontation.

After the fight in the bar, the employee and Durst went back to the city’s public docks, where the employee had the boat waiting in line at the freezer plant. They left the car in the parking area. Durst was walking back to the boat where he was staying, and the employee was walking back to the Logger to grab his rain coat before returning to the freezer plant to finish unloading the boat. When the employee and Durst arrived at the dock, Lutton was waiting for them. The employee walked onto the dock and turned right to go to the Logger. Lutton hit the employee on the head with a blunt object, and then attacked Durst. The employee sustained a head injury, a knee injury that led to an arthroplasty, and a broken leg.

The employee had never met Lutton before the altercation at the bar, and he testified that he would not recognize him even now. The employee was taken to the hospital in an ambulance. He was then flown to St. Peter’s Hospital in Olympia, Washington.

The employee requested "maintenance and cure" benefits under the Jones Act, but those benefits were denied by the employer. The employee then filed a Worker’s Compensation Claim form on May 26, 1998, claiming that he suffered a compensable injury while working for the employer.

At the hearing, the employer argued the employee was a commercial fisherman and thus excluded from workers’ compensation coverage under AS 23.30.230. It contended he was engaged in the "taking" of fish for commercial purposes, and was required by the Alaska Department of Fish and Game to possess a commercial fishing license. The employer also asserted the employee was not acting within the course and scope of his employment when he was injured. Therefore, it argued, his employment played no part in his injury.

The employee argued he was not a commercial fisherman because he was not working in the process of taking fish; he was not a crewmember of a tender; and he was not involved in the operation of a vessel. The employee argued he was a "processor," as defined in AS 16.05.940(4). He also argued his injury occurred in the course and scope of work because he was engaged in activity incidental to his work, picking up his raingear, on a "special errand." Consequently, he argued, the "going and coming" rule should not bar his claim. He also argued his injury is similar to the "remote site" cases found compensable by the Alaska Supreme Court.

The employee requested attorney fees at $250.00 per hour, paralegal costs at $100.00 per hour, and other legal costs. The requested fees totaled $12,879.90; and the costs totaled $1,143.21. The employer argued the hourly attorney fees and paralegal costs are excessive. It also contended the 2.9 hours the employee’s attorney spent investigating a Jones Act remedy should not be compensable in a workers’ compensation claim.

I. WAS THE EMPLOYEE A COMMECIAL FISHERMAN UNDER AS 23.30.230

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.

However, 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.

In this case we find the record reflects numerous contacts between the employee’s work at the time of his injury and the Alaskan community of Sitka. Based on these facts, we find the employee’s work is in the "local interest" or "twilight zone" jurisdiction of both federal and state law. Nevertheless, among the occupations specifically exempted from coverage under the Workers’ Compensation Act is that of "commercial fisherman." AS 23.30.230 (a) (6).

A commercial fisherman is defined in AS 16.05.940(4) as:

The employer argues the employee was a commercial fisherman by virtue of the fact that he had a commercial fishing license. We do not find this fact to be dispositive in our analysis; it is only one piece of evidence. We find the statutory definition of' "commercial fisherman" in AS 16.05.940 (4) is dispositive.

The definition of' "commercial fisherman" in AS 16.05.940 (4) has two sections under which a person may be deemed a commercial fisherman. The first section describes two types of individuals aboard fishing vessels. Those who participate in the taking, directly or indirectly, of raw fish products are commercial fishermen, while those who do not participate are excluded from the definition. After reviewing the nature of the employee’s work, we find that the employee was not fishing commercially for, taking, or attempting to take fish and thus was not a commercial fisherman under that portion of the definition found in AS 16.05.940. We find that the employee was a quality inspector who tested the fish after they were taken. He was stationed on a tender for the convenience of all parties to notify the fisherman, who were involved in the taking of the fish, if the employer would accept the herring which had already been caught or "taken."

The second portion of the definition of "commercial fisherman" in AS 16.05.940(4) describes persons on a second type of vessel. "Crew members" aboard tenders or other floating craft used to transport fish are included within the definition of "commercial fisherman." Based on the evidence in the record, we find the employee was not a crewmember of the tender on which he worked. He was not the captain, or a member, who assisted in the operation of the vessel. The employer stationed the employee on the tender, but his sole function on the tender was to perform quality testing. The employee could have performed his job on the shore, or after the fish were in the hold of the ship.

The record clearly indicates the employee was hired and paid by the employer for his work as a tester – and not a crewmember. Crewmembers were hired by the contracting tender owner. As such, the employee falls within the realm of a guest aboard the vessel who does not participate in the taking of fish. We conclude that the definition of commercial fishermen under AS 16.05.940(4), which defines a class of employee exempt from the coverage of our Act, does not include roe technicians. We cannot find the employees was a "commercial fisherman" under AS 23.30.230(a)(6). We conclude, therefore, that the employee's present claim may not be dismissed on that basis.

Because we find the employee is not excluded from compensation under AS 23.30.230, we find the employee’s argument that he should be considered a fish processor is moot. Accordingly, we decline to address this argument.

II. WAS THE INJURY WITHIN THE COURSE AND SCOPE OF THE EMPLOYMENT

A. The Going-to-and-from Rule

Under the "going and coming rule," travel to and from work is considered a personal activity, and injuries occurring off the work premises during such travel are generally not compensable under the Act. Sokolowski v. Best Western, 813 P.2d 286, 289 (Alaska 1991). However, there are exceptions to this rule, including "special hazards" and "special errands". Id. at 289-90.

The employee argues the special hazard exception to the going and coming rule applies. In order to determine if the special hazard exception applies to the employee, we must determine (1) whether he was on his usual route to work at the time he was attacked, (2) whether his employment was a substantial factor in causing the attack and resulting injury, and (3) whether the hazard he undertook was quantitatively greater than risks taken by the general public. Id. at 292. We find that the employee has not proven, by the preponderance of the evidence, that he meets the last two prongs of the test.

We find the employee's employment was not a substantial factor in causing the injury. There is no evidence Lutton attacked the employee because of his affiliation with the employer. We also find the third prong, whether the hazard the employee undertook was quantitatively greater than risks taken by the general public, is not met. We find the employer did not expose the employee to a heightened risk of being attacked. There is nothing to indicate the hazard of being attacked on a public dock was greater for the employee by virtue of his employment status than to anyone else walking along the dock.

The employee also argues the employee was injured while engaged in a "special errand" and during a "break" period in his work. The Alaska Supreme Court determined such an injury compensable in Witmer v. Kellen, 884 P. 2d 662 (Alaska 1994). However, we find no credible evidence to indicate the employee’s activities during his absence from his job duties that night were specifically related to his work as a roe technician in a way that made his injury "reasonably foreseeable and incidental" to his work. Id. at 665. We conclude that neither the special hazard nor the special errand exceptions apply to the employee’s claim.

B. Course and Scope of Employment under AS 23.30.395(2)

"Arising out of and in the course of employment" is defined in AS 23.30.395(2) to include:

The employee suggests his case is similar to "remote site" cases. In past years the Alaska Supreme Court adopted, and comprehensively expanded, its rule of the "remote site doctrine" in a number of cases. The general concept was that injuries or fatalities sustained while engaging in, or incident to, reasonable personal or recreational activities at remote sites, are compensable. See Anderson v. Employers Liability Assurance Corp., 498 P.2d 288 (Alaska 1972).

For example, in MK Rivers and Alaska Pacific Assurance Co. v. Robert Schleifman, 599 P. 2d 132 (Alaska 1979), the Alaska Supreme Court awarded compensation to a claimant who was injured in a motorcycle accident while en route to town on the highway, to cash his paycheck. The Court noted: "This residency requirement presents a special situation where certain reasonable activities must be deemed incidents of employment even though those same activities, if conducted at a non-remote site, might not be held to be work related." 599 P. 2d at 135. The Board followed the Alaska Supreme Court, adopting the remote site rule in a number of cases. See Barth V RCA/OMS, AWCB Decision No. 80-0197 (July 1980); Copple v. RCA Alascom Inc., AWCB Decision No. 80-0126 (May 1980).

Nevertheless, following these cases the Alaska State Legislature amended the Workers' Compensation statute at AS 23.30.265(2) effective July 1, 1982. The board has long interpreted the adoption of the narrower definition of the course and scope of employment to show legislative intent to restrict coverage to only those activities specified in AS 23.30.395(2). See Gerwer v. Alaska Marine Highway, AWCB Decision No. 87-0133 (June 12, 1987). Accordingly, we must now determine if the employee was injured in the course and scope of his work, as defined in AS 23.30.395(2).

Based on our review of the written record and the testimony presented in the hearing, we find no evidence to indicate the employee, at the time of his injury, was engaged in employer-required or supplied travel to and from a remote job site; or engaged in activities performed at the direction or under the control of the employer; or engaged in recreational league activities sponsored by the employer and required as a condition of employment. Accordingly, we must determine if the employee was injured while engaged in employer-sanctioned activities at employer-provided facilities.

In Crusader Fisheries v. Joseph Lechton, 4FA-89-853 Alaska Superior Ct., Fourth Judicial District, Op. No. 91-5001 (January 20, 1991), the Superior Court reversed the Board's finding in AWCB Decision No. 89-0111 (May 12, 1989) that Lechton's injuries, suffered in an attack while on shore leave, were compensable. The court concluded Lechton's injuries did not result from an employer-sanctioned activity at an employer-provided facility, finding that Crusader did not sanction specific activities in which Lechton might engage during shore leave. The court found that it was Lechton's choice to go ashore and be at the bar where the attack occurred. Crusader did not provide the facility. It existed independently, and Lechton chose to use it. The court's analysis in Lechton lends itself to application in this case.

The Alaska Supreme Court held "the text of AS 23.30.120(a)(1) indicates that the presumption of compensability is applicable to any claim for compensation under the workers' compensation statute" (emphasis added.) Meek v. Unocal Corp., 914 P.2d 1276, 1279 (Alaska 1996), quoting Municipality of Anchorage v. Carter, 818 P.2d 661, 665 (Alaska 1991). Based on the employee’s testimony and claim he was injured in the course and scope of his work, we must follow the court's rationale in Meek, and apply the presumption of compensability from AS 23.30.120(a)(1) to the claim. Nevertheless, the record is clear the employee’s injury occurred on the city’s public docks, not at employer-provided facilities. We find this is substantial evidence rebutting the presumption, and the employee must prove his claim by a preponderance of the evidence. Meek, 914 P.2d at 1280.

The Sitka harbor is open to the public and every person accessing vessels moored there must pass on the city’s public docks, where the attack occurred. We find that being attacked in a public place is something to which the general public is exposed, regardless of who employs them. We find the employee was returning from a personal activity, away from work. He was walking on a public dock at a time, and in a location, in which the general public is permitted to walk. We find the docks exist independently of the employer; and the employer did not own or provide the dock facility. Based on the preponderance of the evidence, we find the employee was not injured at an employer-provided facility. We must conclude his injury did not occur in the course and scope of his employment, as defined in AS 23.30.395(2).

Because the preponderance of the evidence indicates the employee was injured while engaged in activities of a personal nature away from employer-provided facilities, and was not injured in the course and scope of his employment, we conclude the employee’s claim is not compensable. We must deny and dismiss the employee’s claim for workers’ compensation benefits.

Under AS 23.30.145, we may award attorney fees and costs to the employee only if he prevails on his claim for workers’ compensation benefits. Because the employee’s claim is not compensable, we must deny the request for attorney fees and costs.

The employee did not suffer a compensable injury in the course and scope of his employment, as defined in AS 23.30.395(2). His claim for benefits is denied and dismissed.

Dated at Juneau, Alaska this 1^st day of November, 1999.

ALASKA WORKERS' COMPENSATION BOARD

/s/ William Walters
William Walters, Designated Chairman

/s/ James G. Williams
James G. Williams, Member

/s/ Nancy J. Ridgley
Nancy J. Ridgley, Member

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.

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.

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.

I hereby certify that the foregoing is a full, true and correct copy of the Final Decision and Order in the matter of CHARLES D. KELLY employee / applicant v. NELBRO PACKING CO., employer; ALASKA PACIFIC ASSURANCE, insurer/defendants; Case No. 199805226; dated and filed in the office of the Alaska Workers' Compensation Board in Juneau, Alaska, this 1st day of November, 1999.

Susan N. Oldacres, Secretary

SNO