One of the most interesting zone of special danger cases from 2015 has been briefed for the Ninth Circuit Court of Appeals. The case, Jetnil v. Chugach Management Services, asks whether the zone of special danger doctrine should apply to local nationals who are injured in their home country. So far, the administrative law judge, Benefits Review Board, and Director have all said that the zone of special danger should apply. Employer and Carrier disagree, and they have taken the claim all the way to the Ninth Circuit.
The Benefits Review Board’s Jetnil Decision:
Like I mentioned in last year’s post about Jetnil, the employee was injured while he was fishing on the reef at Gagan Island (part of the Republic of the Marshall Islands). The employee, who was a citizen of the Republic, slipped and cut his foot on coral. The injury resulted in a below-the-knee amputation and subsequently resulted in the employee’s death.
The employee typically resided on Kwajalein Atoll. At the time of his injury, he was working at a new work site on Gagan Island. During his stints at Gagan Island, the employee did not leave the island. He stayed for five straight days and lived in a small trailer with limited employer-provided food options. The problem was that the employee had diabetes. He followed his doctor’s advice and ate fish whenever possible. When he was injured, he was fishing for his dinner.
The Benefits Review Board looked at the totality of the circumstances and determined that the zone of special danger doctrine applied. The Board drew attention to the following circumstances:
- The employee’s injury occurred on a “small, uninhabited, restricted access island, to which [employee] was sent by employer.”
- After arriving on Gagan Island, neither the employee nor his co-workers could leave for at least four days.
- The only reason the employee was on Gagan Island–a restricted access island–was because of the obligations and conditions of his employment.
- The food supplied by the employer was not suitable for the employee’s diabetes; thus, fishing was a “foreseeable activity during claimant’s off-duty hours on Gagan Island.”
- It doesn’t matter that fishing (i.e., the activity in which the employee was engaged at the time of his injury) was a normal, every day activity on the Marshall Islands.
Simply put, the zone of special danger doctrine requires a factual determination based on an analysis of the specific circumstances of each case.
Aggrieved by the Board’s decision, the Employer and Carrier appealed. Below, I’ve repeated the argument summaries for the briefs submitted by the Employer and Carrier, the claimant’s estate, and the Solicitor.
Employer and Carrier’s Opening Brief:
Chugach Management and Zurich summarized their argument as follows:
The BRB erred by affirming the ALJ’s award of DBA disability compensation and medical benefits in this case. As a matter of law, the “zone of special danger” doctrine, which broadens the concept of work-relatedness to include coverage to certain off-duty injuries, is inapplicable to local nationals working within their home countries. In a common sense, every day, and realistic view of the realities of employment within one’s home country, off-duty activities are entirely personal in nature and thoroughly disconnected from the obligations and conditions of employment. The Supreme Court, in announcing the “zone of special danger” doctrine’s applicability to workers employed overseas (far away from their family, friends, and normal past-times), did not envision the “zone of special danger” doctrine’s application to the local national worker. In so holding that the “zone of special danger” doctrine could be utilized to expand the concept of work-relatedness to local nationals, the BRB has created the most expansive workers’ compensation scheme under the l aw, as compared to any other Federal or State scheme. Effectively, the BRB’s holding provides 24 hours a day, 7 days a week coverage for local nationals engaged in off-duty activities simply by virtue of their DBA employment.
Alternatively, the BRB erred by affirming the ALJ’s finding that Claimant’s presence on an island within his home country was a sufficient “obligation and condition of employment” to create a “zone of special danger” from which his injury during off-duty fishing activities arose. In ignoring all countervailing evidence establishing that Claimant resided within an island chain his entire life, that he would fish no matter what island he was on, that he would share his harvest with family and friends, and that it was against Employer’s policy to fish during work hours, the BRB affirmed the imposition of strict liability upon the Employer and Carrier for off-duty injuries suffered by local nationals. Moreover, the BRB erred by affirming a finding by the ALJ that the employer-provided food was inadequate for Claimant’s diabetic diet. This finding is unsupported by substantial evidence in the record.
Claimant’s Brief in Opposition:
Claimant (presumably, through his estate) maintained his winning arguments in his Brief in Opposition, stating:
Benefits under the Defense Base Act are available to any employee who is injured. The Zone of Special Danger is just as applicable to who the petitioners refer to as local nationals as it is to other employees.
Restricting the Zone of Special Danger, making it inapplicable to local nationals working in their home countries, leads to absurd results. For instance, there are various Court decisions upholding the award of benefits under the Zone of Special Danger doctrine to U.S. citizens working on U.S. soil, such as Guam and Alaska. Furthermore, there are employees working on Kwajalein Atoll for Chugach who are, in essence, permanent resident[s] of the [Republic of the Marshall Islands], but hold U.S. citizenship. Should these employees be injured under circumstances similar to respondent under the rationale of petitioners’ argument they would have the benefit of the Zone of Special Danger doctrine but respondent would not.
The application of the Zone of Special Danger argument is always fact specific, relying on whether the obligations or conditions of employment created a zone of danger out of which the injury arose.
The facts relied upon by the ALJ and BRB were uncontested.
Respondent was assigned to work on a remote, uninhabited island for several days. He was transported to and from the island by his employer. The employer supplied his food, including rice, hot dogs and bacon. Respondent was a diabetic. In keeping with his doctor’s orders and Marshallese custom, he went reef fishing to catch a fish for dinner. He cut his foot. It became infected and had to be amputated. These facts are substantial evidence that Mr. Jetnil’s injury was foreseeable, and arose out of obligations and conditions of his employment such that a zone of special danger was created.
The Director’s Brief in Opposition:
The Brief for the Federal Respondent supports Claimant’s arguments. The Director stated:
The DBA’s zone of special danger doctrine covers, without qualification, injured workers whose injury arises from the obligations or conditions of employment, so long as the employee’s activity at the time of the injury was reasonable and foreseeable. The Court should therefore reject Employer’s argument that the zone of special danger doctrine cannot apply as a matter of law to local nationals under any circumstances. That said, the doctrine will likely have a more limited application in cases involving injured local nationals. But that determination must be made on a case-by-case basis depending on the particular facts and circumstances presented.
The ALJ’s award of compensation here, and his reliance on the zone of special danger doctrine, is correct and supported by substantial evidence. Jetnil’s injury arose from the obligations and conditions of his employment. He was stationed on an uninhabited island for a period of four days during which he was injured. And the recreational reef fishing in which he was engaged when injured was foreseeable. The ALJ therefore properly utilized the zone of special danger doctrine and awarded compensation.
Categorical Denial or Factual Analysis:
My opinion is that Claimant and the Director will carry the day. Employer and Carrier’s approach supports a categorical exclusion of certain employees. But, the zone of special danger doctrine doesn’t lend itself well to categorical exclusions. Instead, courts favor a factual analysis of the totality of circumstances of each case. It will be had to overcome that preference in this case.