The “Zone of Special Danger” Doctrine and Injured Defense Contractors

There is yet another, more significant geographic element to Defense Base Act or DBA cases called the “Zone of Special Danger” doctrine. While it may sound like something out of a science fiction movie, this doctrine provides a broad course and scope of coverage for defense contractors under the DBA, limited only by what the cumulative jurisprudence has deemed to be “reasonable.”

Under the Defense Base Act, the Supreme Court has allowed benefits where the injury did not occur within the space and time boundaries of work, but the defense contractor was in a “zone of special danger.” For example, in O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504 (1951), rev’g 182 F.2d 772 (9th Cir. 1950) the employee, while spending the afternoon in the employer’s recreational facility near the shoreline in Guam, drowned while attempting to rescue two men in a dangerous channel. The Supreme Court in finding DBA coverage held that “all that is required is that the obligations or conditions of employment create the zone of special danger out of which the defense contractor injury arose.” 340 U.S. at 507. “The test of recovery is not a causal relationship between the nature of employment of the injured person and the accident. Nor is it necessary that the employee be engaged at the time of the injury in an activity of benefit to his employer.” Id. [The Ninth Circuit in O’Leary had held that where the employer maintained a recreation center especially for employees, and prominently displayed a notice prohibiting swimming in a particular channel one-half mile from shore, the action of an employee in swimming in the forbidden channel in an attempt to rescue an unknown man, was not recreation in the course and scope of his employment.]

In O’Keefe v. Smith, Hinchman & Grylls Associates, 380 U.S. 359 (1965), the employee drowned in a lake in South Korea during a weekend outing away from the job. The Supreme Court found coverage, noting that the employee had to work “under the exacting and dangerous conditions of Korea.” 380 U.S. at 364.

In Gondeck v. Pan American World Airways, 382 U.S. 25 (1965), granting reh. and cert., rev’g 299 F.2d 74 (5th Cir. 1962) cert. first denied, 370 U.S. 918., the Supreme Court took the unusual step of granting a widow a rehearing to revisit the “zone of special danger” issue. Originally, the Fifth Circuit had acknowledged that while the employee was killed in an auto accident in a nearby town and was subject to call in that town, there was no benefit to the employer for the worker’s trip to the nearby town on San Salvador Island. The Fifth Circuit had therefore upheld a denial of relief because there was “no evidence that furnishes a link by which the activity in which [the worker] was engaged was related to his employment.” Noting that the Fifth Circuit itself in a subsequent case expressed doubt as to whether its decision in Gondeck was consistent with O’Leary and other circuits’ holdings, the Supreme Court reversed the Fifth Circuit.

A heart attack suffered by a claimant while off duty in a barracks provided by his employer in Thule, Greenland, was found to be covered by the Ninth Circuit. Ford Aerospace & Communications Corp. v. Boling, 684 F.2d 640 (9th Cir. 1982). While the Ninth Circuit reached the correct conclusion in Boling, its course in getting there was roundabout. The court seemed to dwell on the ALJ’s findings that the heart attack victim was forced to live in a barracks wherein a stretcher could not be used to get to the worker, forcing the worker to walk from his room to the stretcher. It is submitted that perhaps the isolated location of Greenland alone would have sufficed as a “zone of special danger.”

In Page Communications Engineers, Inc. v. Messick, 315 F.Supp.569 (E.D. Penn. 1970), the court held that an employee’s accidental death by electrocution (due to operation of a tape recorder in his hotel room in Vietnam) in a war zone area, while occupying necessary quarters, brought the widow claimant within DBA coverage. The court noted that the accident occurred on a Sunday and there was no evidence relating to whether or not the tape recording machine was being used for employment communication purposes. The court noted that the death occurred in a zone of special danger since it was in a war zone and then went on to further note that the employee’s contract required him to move from place to place in necessary quarters and that this was sufficient to bring him into coverage. Citing Amalgamated Ass’n of Street, Electric Railway & M.C. Emp. Of America v. Adler, 119 U.S. App. D.C. 274, 340 F.2d 799 (D.C. Cir. 1964)(If in the course of employment an employee suffers an injury by reason of a risk incidental to the location where the employment requires him to be, that injury arises out of employment), and applied that principle to the DBA. It is submitted that the worker would still have been in a zone of special danger here even if he had not been in “necessary quarters.” One could argue that the entire country was a zone of special danger.

Page and Boling concentrate on specific geographical situations similar to “regular, run of the mill” LHWCA cases whereas later cases have taken a broader, more liberal approach to coverage. The approach in these two cases resembles that in Director, OWCP v. Brandt Airflex Corp, 645 F.2d 1053 (D.C. Cir. 1981) (Claimant who had to climb the stairs to the ninth floor in order to perform his job as a sheet metal worker since elevators had not yet been installed and who suffered congestive heart failure after climbing seven flights, suffered a compensable injury.) where the court used a course and scope analysis.

However, it is noted that in Brandt Airflex the court incorrectly implied that it was applying a zone of special danger doctrine. This doctrine is only available to DBA and WHCA cases, not to any other LHWCA or extension act cases. Brandt Airflex was a D.C. Workers Compensation Act case. Similarly, in Evening Star Newspaper v. Kemp, 533 F. 1224 (D.C. Cir. 1976) the court’s notation of the zone of special danger in connection with a D.C. Workers Compensation Act involving a shooting is misleading. See Preskey v. Cargill, 12 BRBS 916 (1980), rev’d on other grounds, mem. 14 BRBS 340 (9th Cir.1981)(Board holds that “zone of special danger” should only be used with reference to claimants subject to employment-related risks in foreign settings. “It is the alien character of the locale which justifies a liberalization of traditional standards for measuring the causal relationship between the employment and the injury, and application of the doctrine should be confined to such circumstances.”). [Note, while the Ninth Circuit issued a memorandum reversal of the Board inPreskey, one can only come to the logically conclusion that the circuit court was reinstating the ALJ’s award of benefits in relation to his finding that the activity was within the course and scope of employment; not that the circuit court was reversing the Board’s holding on when the “zone of special danger” doctrine can be used.]

However, there are limits to the zone’s application. In Gillespie v. General Electric Co., 21 BRBS 56 (1988), the Board denied benefits under the DBA to the widow of an individual who died accidentally while attempting to temporarily asphyxiate himself as part of an autoerotic activity (euphemistically referred to as a ‘recreational activity”) on an Air Force Base in West Germany on which he was employed as a civilian radar-equipment installer. In so doing, the Board found no evidence to support the proposition that a relationship existed between the conditions created by decedent’s job and the activity which occasioned his death.” Citing O’Leary, the Board held that the decedent had gone so far from his employment and become so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that his death arose out of and in the course of his employment.

Another case where the “zone of special danger” test did not work was where a widow claimant was denied death benefits under the DBA on the ground that her complicity in the murder of her husband “effectively severed any causal relationship which may have existed between the conditions created by his job and his death,” as well as on the policy ground that she not be allowed to benefit from her own wrongdoing. Kirkland v. Air America, Inc., 23 BRBS 348 (1990). Her husband was murdered during a burglary of his home. The widow was implicated by the two men who confessed to the crimes, one of whom was believed to be her boyfriend.

In recent years the test has developed into one of what is reasonable. In Ilaszczat v. Kalama Services, 354 F.3d 1085 (9th Cir. 2004), aff’g 36 BRBS 78 (2002), pet. for cert filed 4/14/2004, S.Ct. No. 03-1440, risky horseplay/scuffles at a bar on an isolated atoll were found to be covered activity even if the conduct itself was unauthorized. An examination of the facts illustrates why coverage here is reasonable, under the circumstances. The claimant was employed as the manager of a self-help store on Johnston Atoll and had been socializing at the bar while off duty. Eventually he entered into a $100 wager with a military police officer as to the outcome of a karate demonstration between the two of them. While the claimant was recovering from hip surgery in Hawaii, the military commander of the atoll barred the claimant from ever returning.

The ALJ found that the claimant did fall within the “zone of special danger” and that his conduct, although perhaps unauthorized and/or prohibited, was not so egregious as to sever the relationship between his employment and the injury under the doctrine. The employer on appeal challenged this finding and further argued that the ALJ had ignored the legal “reasonable recreation” standard, wherein only those incidents in which the claimant’s conduct was reasonable are accepted as falling within the zone. In approving the ALJ’s holding, the Board noted that the ALJ had pointed out that those living on the atoll had limited choices and opportunities for recreation, and that this was, presumably, the reason why the military had authorized the operation of “social clubs” on the atoll. The ALJ had further found that with the existence of clubs serving alcohol to employees, in combination with the employees’ lengthy periods of isolation in the middle of the Pacific Ocean, it was clearly foreseeable by both the military authority and the employer that “risky horseplay” or scuffles such as that which occurred, would occur from time to time. As such, the ALJ had determined that the claimant’s conduct was not “so far from his employment” and was not “so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that the injuries suffered by him arose out of and in the course of his employment.”

The ALJ had also found, assuming arguendo, that while the claimant was engaged in “unauthorized” or prohibited behavior (i.e., assuming that the employer’s characterization is accurate and the incident involved wagering and fighting), this fact alone does not necessarily establish that the claimant’s behavior was unforeseeable. Specifically, the ALJ found that the incident was “foreseeable, if not foreseen” by the employer and thus the mere fact that fighting was prohibited does not necessarily preclude the claimant’s recovery even if fighting constituted grounds for expulsion from the atoll.

[As a sidebar, the Board found that the issue as to whether the claimant in Ilaszczat should be barred of benefits because he was discharge and could not return to post-injury work due to his own misfeasance, became moot since the claimant was never offered any position by the employer post-injury, nor did the employer establish that suitable alternate employment would have been available to the claimant at pre-injury wages, but for, his discharge.]

In Ilaszczat the Ninth Circuit found that the Board had properly held that the ALJ’s factual findings were supported by substantial evidence. In analysis, the circuit court agreed with the Board and ALJ: “We agree that, under these circumstances, horseplay of the type that occurred here is a foreseeable incident of one’s employment on the atoll.” The court did not find that the worker’s misconduct and breach of company rules was such a deviation so as to justify a denial of disability benefits.

Another recreation claim of note is Smith v. Board of Trustees, Southern Illinois University, 8 BRBS 196 (1978). Here the worker, an educational advisor stationed in Nepal died as a result of a ruptured abdominal aortic aneurysm while playing golf in Nepal. The ALJ had found that the rupture was most likely the result of frequent diarrhea and vomiting as a result of the unsanitary conditions the worker encountered during his two year stay on the island. There was some evidence that the aneurysm was caused directly by playing golf. In its appeal, the employer argued that the evidence in reference to the golf game was sufficient to rebut the presumption of coverage. The Board held that under either theory (unsanitary conditions or exertion while playing golf) the claim was covered because the conditions of employment created a zone of special danger out of which the injury arose.

Recently there have been attempts to limit the applicability of the “zone of special danger” doctrine. In Edmonds v. Al Salam Aircraft Co., Ltd., (Unpublished)(BRB No. 01-0602)(April 5, 2002) there was an attempt to limit the doctrine where a claimant crossing a highway in Saudi Arabia to go to a supermarket was hit and injured by a car. The employer appealed the ALJ’s determination that the claimant was within the zone, arguing (1) that driving in Saudi Arabia is no more dangerous than driving in the United States, and (2) that the entire doctrine should be reconsidered “in light of the 21st Century, since applicability of this doctrine, as exemplified by past case precedent, is premised on an antiquated view of the world outside of the United States.”

The Board, in Edmonds, noted Supreme Court jurisprudence and declined to reconsider the doctrine “in light of the 21st Century” since the Board’s use and application of the zone of special danger doctrine stems directly from binding Supreme Court precedent. Next, the Board noted that in this specific case the claimant was not “so thoroughly disconnected” from work for the employer that it was unreasonable for his injuries to be covered. The claimant’s injuries were related to his living and working conditions in Saudi Arabia. Importantly, the employer did not provide the claimant with on-base housing or convenient transportation to and from the base. Furthermore, the employer did not provide the claimant with fresh food at the commissary on the housing compound so it was reasonable for him to buy food off-base. Also, the claimant was always on call and his hours of work were not consistent, thus making it reasonable for him to drive his own car. Lastly, the ALJ had determined, based in part on the claimant’s credible testimony and a pamphlet distributed by the employer’s predecessor, that driving in Saudi Arabia presented hazards not found in the United States.

Edmonds is in line with several similar, older transportation/accident related circuit cases. In Takara v. Director, OWCP, 369 F.2d 392 (9th Cir. 1966) the court found coverage where an electric company employee working on Guam was injured when struck by a U.S. Navy truck while thumbing a ride back from a restaurant to the campsite, after he had rejected company supplied bus transportation. He was found to still be within the course and scope of his employment. In Pan American World Airways, Inc. v. Director, OWCP [Smith], 335 F.2d 70 (4th Cir.1964), several workers had been using their employer’s jeep for recreation on a small island in the Bahamas when it overturned. They were found to be within the course and scope of employment despite the fact that the employer provided recreational facilities and the accident occurred when they were seeking recreation elsewhere. In Liberty Mut. Ins. Co. v. Gray, 137 F.2d 926 (9th Cir. 1943), an employee working on defense projects in Hawaii was injured returning from a two day holiday after working for seven straight days. A truck belonging to an affiliated contractor was giving him a lift when a collision occurred. In upholding coverage, the court stated that it could properly be inferred that two days recreation contributed to a higher efficiency in the employer’s wartime work and that furnishing transportation for a prompt return to work facilitated the performance of his work with his renewed vigor and therefore could be considered an incident of his employment.

The Appeal Process

Another way that Defense Base Act cases differ from regular LHWCA cases is the appeals process. There is a split amongst United States courts of appeal as to the proper route of appeal of a DBA case. The Sixth and Fourth Circuits have concluded that Section 21(b)(3) of the LHWCA as amended in 1972 (provides for direct review of the Board’s decision by the U.S. court of appeals for the circuit in which the injury occurred) was not incorporated into the DBA under 41 U.S.C. § 1653(b). Review would therefore remain in the appropriate district court as it did prior to the amendments (and thence to the court of appeals). Home Indem. Co. v. Stillwell, 597 F.2d 87 (6th Cir. 1979), cert. denied, 44 U.S. 869 (1979); Lee v. The Boeing Co., 123 F.3d 801 (4th Cir. 1997)(Congress specifically amended the provisions of the LHWCA without changing Section 3(b) of the DBA). The Fifth Circuit also holds that the appeal of the Board’s order on a DBA claim is to the district court. AFIA/CIGNA Worldside v. Felkner, 930 F.2d 1111, 24 BRBS 154 (CRT) (5th Cir. 1991), cert. denied, 502 U.S. 906 (1991).

The Seventh and Ninth Circuits, however, have concluded that Congress meant to incorporate the LHWCA, as amended in 1972, into the DBA. Accordingly, appellate review of Board decisions in these circuits lies with the court of appeals for the circuit where the office of the district director or judge whose compensation order is involved, is located. Pearce v. Director, OWCP, 603 F.2d 763, 10 BRBS 867 (9th Cir. 1979), transferred, 647 F.2d 716, 13 BRBS 241 (7th Cir. 1981), discussing Pearce v. McDonnell Douglas Corp., 5 BRBS 573 (1977); see also Parsons Corp. of California v. Director, OWCP, 619 F.2d 38 (9th Cir. 1980).

Waiver of Applicability

Yet another distinction between the two acts is the availability of a waiver of applicability under the DBA by the Secretary of Labor. The DBA provides that, upon the recommendation of the head of any department or other agency of the United States, the Secretary of Labor may waive the application of the DBA with respect to any contract or classification of employees. 42 U.S.C § 1651(e). In Ann v. Eastern Construction Co., 17 BRBS 163 (1985), the Board affirmed the judge’s finding that the document waiving DBA coverage limited the claimant’s recovery to the workers’ compensation provided by the law of her own country (the Philippines), rather than affording the claimant the option of electing the more favorable benefits of the place of injury (Republic of Vietnam).

The War Hazards Compensation Act

The WHCA provides benefits to persons injured or killed due to a war, whether declared or an “armed conflict” by military forces of any origin occurring in the foreign country where the claimant is working; or a worker who is detained or taken prison by hostile forces. It provides coverage to employees covered under the DBA and the Non-Appropriated Fund Instrumentalities Act who are working outside of the United States who would not otherwise be covered by those acts because the injuries/deaths were caused by hostile actions. In essence, it is a funding mechanism. All WHCA claims are handled by the Washington, D.C. district of OWCP. Any injury or death caused by “hostile action” can be the basis of a claim. The scope of persons covered is broad, but they must be civilian, non-government workers. The list includes, but is not limited to, employees of contractors, public welfare organizations, and military base civilian personnel.