Not Everything is Black and White: Applying the Zone of Special Danger Doctrine

Not Everything is Black and White: Applying the Zone of Special Danger Doctrine

By: Brooke E. Michiels

Battelle Mem'l Inst. v. DiCecca, No. 14-1742, 2015 WL 4072072 (1st Cir. July 6, 2015)Gerald DiCecca, an employee of Battelle Memorial Institute (“BMI” herein), was a facility engineer at BMI’s Tbilisi, Georgia laboratory. BMI was a subcontractor employed by the U.S. Department of Defense that focused on countering the threat of biological weapons. BMI provided employees with taxi vouchers that could be used for any reason, professional or personal. Additionally, DiCecca received hardship pay for the dangerous living conditions incidental to the job. DiCecca was traveling, via company taxi voucher, to the grocery store when he was killed in a head on collision caused by a suspected drunk driver. The administrative law judge held in the widow’s favor in her claim for death benefits. BMI appealed and the Benefits Review Board affirmed the award. The petitioners appealed to the United States Court of Appeals for the First Circuit for review of the award made under the Defense Base Act (“DBA” herein).The DBA provides workers’ compensation coverage for employees working outside of the United States on government approved national defense assignments. This coverage is an extension of the application of the Longshore and Harbor Workers’ Compensation Act (“LHWCA” herein). Where the LHWCA offers compensation for injuries “arising out of and in the course of employment”, the DBA modifies the scope of employment provision by the zone of special danger doctrine set fourth by the Supreme Court in O’Leary. In O’Leary, the Court determined “all that is required is that the obligations or conditions of employment create the zone of special danger out of which the injury arose.” Further, the Court limits the scope of judicial review by classifying the determination that an injury falls within the zone of special danger as a question of fact.The United States Court of Appeals for the First Circuit, through former Justice Souter as the author, analyzed O’Leary and several other appellate and administrative cases before extracting guidelines, yet not a “precise rule,” that can be used to interpret and apply the zone of special danger doctrine. First, under the DBA, the zone of special danger doctrine is an expansion of traditional employer liability, which does not require any causal connection to the employee’s job or any service to the employer. Therefore, for the zone of special danger doctrine to apply, the injury must be a product of any foreseeable risks associated with working abroad. Second, to determine the foreseeable risk, a court should consider the totality of the circumstances. Third, “the agency’s rational determination is treated as far as possible as a finding of fact, for which a reviewing court considers only whether the agency had a substantial basis in the record.”The First Circuit affirmed the administrative law judge, holding that the zone of special danger doctrine applies and DiCecca’s death is compensable under the Act.