ADJ12142266 · November 23, 2021

The Board found that the applicant, a ferry captain and seaman under the Jones Act, was injured in territorial waters while working on a vessel tied to a pier in San Francisco Bay, with substantial contacts to California, supporting concurrent jurisdiction under California workers' compensation law despite initial maritime benefits under federal law.

From the decision · page 2Based on our review of the record and applicable law, we conclude that the WCJ erred in finding that there is no concurrent jurisdiction under California workers' compensation law in this case. The applicant herein, a ferry captain who is a "seaman" under the federal Jones Act, was injured while working on the engine of his ferry, which was tied to a pier in Fisherman's Wharf over the waters of San Francisco Bay. As we explain below, the fact that applicant's employer initially provided maritime benefits under federal law does not deprive the WCAB of concurrent jurisdiction over the ferry captain's subsequently-filed California workers' compensation claim. As our Decision After Reconsideration, we will rescind the WCJ's finding of no concurrent jurisdiction and substitute our finding that the WCAB has concurrent jurisdiction over applicant's workers' compensation claim herein.

Applicant was injured on July 8, 2014, while working as a ferry captain on the vessel 'Zelinsky' tied to a pier in San Francisco Bay.

Favours Applicant prevailed

This fact established the injury occurred in territorial waters with substantial California contacts, supporting concurrent jurisdiction.

From the decision · page 2BACKGROUND The parties stipulated in this case that applicant, while employed in San Francisco by Blue and Gold Fleet ("employer") on July 8, 2014 as a "vessel captain" of the ferry boat "Zelinsky," sustained an admitted industrial injury to his right knee. Applicant was working inside the engine room of the Zelinsky, checking engine fluid levels, when he slipped on an oily deck plate and

Applicant is a California resident and was hired in California.

Favours Applicant prevailed

Applicant's residency and contract of hire in California support the state's interest and concurrent jurisdiction.

From the decision · page 3As a captain, it was applicant's job to make sure the vessels he piloted were properly licensed. According to applicant's trial testimony, the "Zelinsky" was only licensed by the U.S. Coast Guard to sail inside San Francisco Bay and not outside it, in "international waters." While working for this employer, applicant never operated vessels carrying passengers in international waters. There is no dispute that applicant is a California resident and the contract of hire was made in San Francisco.

Sun Ship, Inc. v. Pennsylvania (1980) 447 U.S. 715

Concurrent jurisdiction under California workers' compensation law applies when the injured worker has substantial contacts with California and the injury occurs in territorial waters, even if maritime benefits were initially provided under federal law.

The Board applied this standard to find concurrent jurisdiction in this case where the applicant was a California resident injured on a vessel tied to a pier in San Francisco Bay.

From the decision · page 44th 76 [61 Cal.Comp.Cases 1360].) Although Lopez involved the issue of credit for benefits received under both LHWCA and California's Workers' Compensation Act, our Supreme Court noted that "the rule of concurrent jurisdiction was established to protect maritime workers against the harsh consequences of an exclusive jurisdiction system--under which a mistake in forum selection could result in no benefits at all." (61 Cal.Comp.Cases at 1370.) Whether there is concurrent jurisdiction must be decided by reference to the particular circumstances, on a case by case basis. (Sun Ship, Inc. v. Pennsylvania (1980) 447 U.S. 715, 718 [100 S.Ct. 2432, 65 L.Ed 2d 458, 45 Cal. Comp. Cases 1314].)

Applicant's contacts with California, including residency and contract of hire, and the injury occurring in territorial waters on a vessel tied to a pier in San Francisco Bay.

From the decision · page 3injured his knee. At the time, the "Zelinsky" was tied up to Berth Five of a pier extending into San Francisco Bay, in the Fisherman's Wharf area. According to applicant's trial testimony, the Zelinsky was "an old, oily vessel."