Last year, I wrote a blog article about a Defense Base Act case from the Benefits Review Board involving a slip-and-fall in a shower. That case, Ritzheimer v. Triple Canopy, Inc., addressed the scope of the zone of special danger. Recently, the Middle District of Florida affirmed the Benefits Review Board decision. The zone of special danger does, in fact, apply to a slip-and-fall while exiting a shower.
Factual Background and Procedural History:
The facts of the case were laid out by the BRB. On March 3, 2012, the claimant exited his shower. He slipped on the wet bathroom floor and fell. The claimant’s injuries included four broken ribs and a punctured lung. Later, after returning to the United States and undergoing medical treatment, the claimant developed depression. Initially, the employer/carrier paid the claim. But then they stopped, arguing that the cause of the claimant’s injury was personal in nature and not rooted in any obligations or conditions of employment. Both the administrative law judge and the Benefits Review Board disagreed.
The Middle District of Florida Affirmed:
Add the Middle District of Florida to that list. On January 17th, the United States District Court for the Middle District of Florida accepted and applied the recommendations made by United States Magistrate Judge Joel Toomey. The magistrate’s Report and Recommendation drew heavily from the First Circuit’s recent decision in Battelle Mem’l Inst. v. DiCecca, 792 F.3d 214 (1st Cir. 2015).
In my opinion, the magistrate’s reliance on Battelle goes to show that Battelle is the benchmark by which all modern zone of special danger cases are judged. What does that mean? It means that employers and carriers need to understand that that the word “special” in the “zone of special danger” is “best understood as ‘particular’ but not necessarily ‘enhanced.'” See id. at 220.
Rejection of the Employer and Carrier’s Arguments:
Magistrate Toomey methodically addressed the employer and carrier’s (i.e., the Petitioners) arguments, stating as follows:
Petitioners argue primarily that the ALJ’s determination that the doctrine applies is not supported by substantial evidence because the ALJ relied on “irrelevant” evidence regarding the weather and a grooming/hygiene requirement in Claimant’s contract instead of “relevant” evidence regarding Claimant’s subjective reasons for showering, i.e., that it was part of being a human, that it helped him sleep better, and that he showered every day, even if he did not work. In short, Petitioners argue that Claimant’s showering was personal in nature and unrelated to his employment.
As noted in the BRB’s decision, Petitioners are essentially requesting that the evidence be re-weighed, i.e., that some evidence be given more weight than the ALJ gave it and some less. However, such re-weighing is inappropriate. Rather, the Court’s review is limited to “whether [the decision] is in accordance with law and supported by substantial evidence in light of the entire record.” If so, the Court must affirm even if it may not have reached the same decision as the agency.
In this case, there is substantial evidence to support the ALJ’s decision. The ALJ relied on evidence regarding Claimant’s work conditions, i.e., wearing 100 pounds of gear when it was hot and windy, with rapid sandstorms and flies, causing him to be dirty, sweaty, and sandy after work. The ALJ also noted Claimant’s obligation to maintain good hygiene and a professional appearance in finding that showering was an implicit job requirement. Additionally, the ALJ relied on evidence that Claimant was on call 24/7 and that Claimant was required to live in the apartment chosen and paid for by his employer in finding that it was reasonable and foreseeable that Claimant might slip and fall while showering in that apartment. Thus, the undersigned recommends that substantial evidence supports the ALJ’s findings that the obligations or conditions of employment created the zone of special danger out of which Claimant’s injuries arose, and that Claimant showering after work was not “so thoroughly disconnected from the services of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.”
Petitioners raise, at least indirectly, several other arguments which the undersigned recommends should also be rejected. First, Petitioners argue that the doctrine should not apply because Claimant did not live in a dangerous area, and did not receive hazardous duty pay. However, this is not required for the doctrine to apply. Moreover, Claimant’s contract stated in part that “performing the services will expose [him] to the unusual hazards and risks of a high-threat environment, including, but not limited to, the extreme and unpredictable threats and hazards of international conflict, war and/or other common and uncommon threats and hazards,” and that “performing the services is inherently dangerous and may result in death or personal injury.” Thus, the undersigned recommends that this argument be rejected.
Petitioners also argue that the doctrine should not apply because the bathroom in the apartment where Claimant was injured was no different from Claimant’s bathroom in the U.S. In support of this argument, Petitioners rely on Ford Aerospace and Communications Corp. v. Boling, 684 F.2d 640 (9th Cir. 1982), wherein the design of the foreign housing contributed to the subject injury. However, as noted by the BRB, “the fact that the foreign housing in Ford Aerospace presented a ‘unique’ or ‘increased’ danger to the employee in that case does not mandate the existence of such conditions as a prerequisite for application of the zone of special danger doctrine.” Rather, under the doctrine, the “special danger” need not be unique or enhanced by the foreign location. Thus, the undersigned recommends that this argument also be rejected.
Petitioners argue further that because showering is necessary as a human being, it has no nexus to Claimant’s employment. However, necessary acts can be, and have been, covered under the doctrine based on case law which “explains why an otherwise personal activity, like recreation, should be deemed a necessity and thus incident to overseas employment.” Thus, the undersigned recommends that this argument be rejected as well.
Petitioners also argue that applying the doctrine to a routine daily act such as showering would create unlimited liability under the DBA. In rejecting a similar argument, the First Circuit stated: “[N]ot all ‘ubiquitous’ activities entail employer liability. . . . The question, then, is which ‘ubiquitous’ activities are covered [under the doctrine]. And the answer is a case-specific determination of foreseeable, reasonable incidence to the foreign employment, left largely for the Board.” Thus, the undersigned recommends that this argument be rejected.
Petitioners rely primarily on a BRB decision, R.F. v. CSA, Ltd., 2009 WL 3159147 (Sept. 30, 2009), for the proposition that injuries occurring as a result of entirely personal actions, such as using a chemical peel to improve one’s skin, are not foreseeable and thus not compensable. In R.F., the BRB found that the “claimant’s use of the chemical peel in this case was personal in nature and did not have its genesis in his employment, making the zone of special danger doctrine inapplicable” because it was “undisputed that claimant has a long history of undergoing cosmetic skin treatments, and he has been diagnosed as being obsessed with his skin.” The undersigned recommends that the facts and circumstances in the instant case are entirely distinguishable from those in R.F. Thus, the undersigned recommends that Petitioners’ arguments based on R.F. be rejected.
Triple Canopy, Inc. v. Ritzheimer, No. 3:16-cv-739-J-32JBT, slip op. at 10-14 (M.D. Fla. Dec. 16, 2016) (Toomey, Mag.) (internal citations omitted)
District Court’s Acceptance of Magistrate Recommendations:
On January 17, 2017, United States District Judge Timothy Corrigan accepted the magistrate’s recommendations. Following a de novo review, Judge Corrigan accepted the magistrate’s recommendations, affirmed the BRB’s decision, and directed the Clerk of Court to enter a judgment in favor of Respondents. That judgment was entered on January 18, 2017.