United States: Zone of Special Danger Doctrine of Defense Base Act Applies to Local Nationals, Not Just Those Sent Abroad to Work in Remote Locations

The judicially created zone of special danger doctrine [see O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 71 S. Ct. 470, 95 L. Ed. 483 (1951)] can be applied to local nationals employed in their home country under an employment contract covered by the Longshore and Harbor Workers’ Compensation Act, as extended by the Defense Base Act, held the Ninth Circuit Court of Appeals. Moreover, the administrative law judge and the Department of Labor’s Benefits Review Board did not commit legal error by applying the zone of special danger doctrine to the employee, who was employed by a Defense Base Act-covered contract in his home country. The employee resided on Third Island, an island in the remote Kwajalein Atoll that is approximately 2,400 miles southwest of Honolulu, Hawaii. An experienced reef fisherman, the employee slipped and cut his right foot on the coral while fishing. An infection developed and doctors had to amputate the employee’s right leg below his knee. The 9th Circuit noted that O’Leary and its progeny almost without exception did not distinguish between employees sent abroad from their home country and locational nationals when determining whether an injury arose out of the conditions of one’s employment.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Chugach Mgmt. Servs. v. Jetnil, 2017 U.S. App. LEXIS 13139 (July 21, 2017)

See generally Larson’s Workers’ Compensation Law, § 149.04.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law