Tort Law’s “Zone of Danger” Test is Not Applicable to Longshore Psych Claims

2572917367_74b111ac08_o - forkliftWhile operating a forklift, claimant accidentally struck and killed a fellow employee.  Claimant’s testimony revealed that, after the accident, he and other employees attempted to extricate the decedent’s body from underneath the forklift.  The day after the accident, claimant first sought medical attention for a psychological injury arising from the forklift incident.  Claimant saw multiple mental health professionals.  After a formal hearing to address claimant’s request for Longshore benefits, an administrative law judge awarded benefits despite Employer’s argument that claimant did not meet the requirements of the “zone of danger” test.  On appeal, the Benefits Review Board affirmed.

At the outset, it must be noted that the “zone of danger” test argued by the employer in this case is not the “zone of special danger” test referenced in many Defense Base Act cases.  Instead, the employer argued in favor of importing the “zone of danger” test applied in tort law. The “zone of danger” test relied upon by the employer would limit recovery for negligent infliction of emotional distress injuries “to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.”

The  Board  dispatched the employer’s “zone of danger” argument:

We agree with claimant and the Director that the “zone of danger” test, upon which employer relies, is a tort concept which does  not apply to the workers’ compensation provisions of the Longshore Act.  As noted by the Director, employer cites five federal court decisions in which the “zone of danger” test was applied to limit plaintiff’s recovery for the negligent infliction of emotional distress.  . . .  employer’s reliance on these cases is misplaced, however, as its argument fails to acknowledge the critical distinction between tort actions, which rely on common law fault and negligence principles, and workers’ compensation claims, which are not governed by those principles.

. . .

Thus, as we reject employer’s position that the line of cases applying the “zone of danger” test in tort actions for the negligent infliction of emotional distress should be extended to workers’ compensation claims under the Longshore Act, we affirm the administrative law judge’s rejection of employer’s contention that the “zone of danger” test precludes an award of disability compensation in this case.

Jackson v. Ceres Marine Terminals, BRB No. 14-0071 and14-0071A (2014).

Forklift image courtesy of Flickr user Jaxport.

Eastern District of Missouri Holds that Plaintiff Was Not a Jones Act Seaman

Welder by Greg Younger - FlickrDefendant owns a large facility on the bank of the Mississippi River that loads materials onto barges and rail cars.  Also, Defendant owns four large towboats.  Plaintiff worked for Defendant for the past eleven years, spending 90% of his time “welding various metal components around Defendant’s land-based facilities, on Defendant’s towboats, and on Defendant’s barges.”  The remaining 10% of Plaintiff’s work was spent performing “various tasks on land and on docked boats, including reworking cable and transmission lines and doing repair work.”

Plaintiff was injured while riding as a passenger on a water taxi owned by Defendant, and used to transport crew members to and from job sites.  Thereafter, Plaintiff filed a complaint alleging negligence under the Jones Act.  Defendant filed a motion for summary decision arguing that Plaintiff was not a seaman.  The United States District Court for the Eastern District of Missouri agreed.  Although Plaintiff contributed to the function of Defendant’s vessels, he did not have a sufficiently substantial connection to Defendant’s vessels:

[T]he Court agrees with Defendant that no reasonable jury could find that Plaintiff’s connection to the fleet of vessels is substantial in terms of its nature. The Supreme Court has indicated that Chandris’s second prong is intended to identify those employees “whose work regularly exposes them to the special hazards and disadvantages to which they who go down to sea in ships are subjected.”  Lower courts have noted that the “special hazards and disadvantages” faced by seamen include the “need to fight fires without outside assistance, the need to abandon ship, the need to survive exposure to inclement weather until help arrives, potential delay or inconvenience in being transported offsite to receive medical attention, and being stuck on a vessel under the control of its Master and operator for extended periods of time until the next port call.”  In contrast, maritime hazards that are faced by longshoremen and seamen alike—such as the danger of falling overboard, the trip-and-fall hazards associated with walking on decks, the risks of injuries while handling lines, the risks associated with wind-gusts and river turbulence, and the dangers associated with the movement of docked vessels in the water—are not considered perils of the sea for purposes of the Jones Act inquiry.

Courts have frequently found that individuals who work exclusively or primarily aboard docked vessels are, as a matter of law, not seamen because they are not regularly exposed to the perils of the sea, especially when other circumstances indicate that the individual is not assigned to the vessel as a member of its crew.

The Court has identified some cases in which courts have found that a plaintiff who worked largely aboard docked vessels was a seaman; however, those cases have involved other factors suggesting a substantial connection to the vessel, such as the plaintiff being assigned to the vessel, the plaintiff performing traditionally sea-based duties, and/or the plaintiff being treated as a Jones Act employee by his or her employer.

When Plaintiff’s duties are viewed in light of the above cases, it is clear that no reasonable jury could find that Plaintiff has a substantial connection to Defendant’s vessels that satisfies the second prong of the Chandris test. First, like the plaintiffs in Vasquez and Saienni, who worked primarily aboard docked vessels and only rarely on boats that were under way, Plaintiff is not regularly exposed to the special hazards and disadvantages faced by those who go out to sea. Plaintiff does 90% of his welding work (which is itself 90% of his work) “on land or connected to the land right there on the dock.” Although he boards docked vessels to do welding and other work, he only rarely does any work on vessels while they are moving up and down the river. Moreover, none of the other factors courts have used to find seaman status are present here. Plaintiff is not assigned to any vessel and is not a crew member of any vessel. After he finishes a project performed aboard a vessel or barge, he returns to shore. He admits that if he is assigned to anything, it is his welding truck. He does not regularly perform traditionally sea-based activities such as piloting towboats or acting as a lookout, and he has no marine license or marine radio, and uses his truck’s radio for land-based operations. Taken together, these facts establish that Plaintiff is not “a member of the vessel [s’] crew,” but is rather “a land-based employee who happen[ed] to be working on the vessel[s] at a given time.”

Because no reasonable jury could find that the second prong of Chandris is satisfied, Plaintiff is not a seaman within the meaning of the Jones Act, and Defendant is entitled to summary judgment on Plaintiff’s Jones Act claim.

Turner v. Wayne B. Smith, Inc., No. 2:13-cv-100-SPM, 2014 WL 6775796 (E.D. Mo. 12/2/14). Excellent image courtesy of Flickr user Greg Younger.

Why Amending the Defense Base Act with H.R. 5721 Is a Bad Idea

3063021398_2f91ba9b21_z - CapitalOn November 17, 2014, Representative Stephen F. Lynch (MA) introduced H.R. 5721, the Overseas Security Personnel Fairness ActRep. Lynch’s news release states that the purpose of H.R. 5721 is to “remove a significant penalty in federal law that currently prohibits the families of overseas federal contractors who are killed in the line of duty from receiving full death benefits if the deceased employee is unmarried with no children or other dependents.”  To achieve his its goal, H.R. 5721 proposes an amendment to the Defense Base Act (“DBA”).  Ultimately, H.R. 5721 appears destined to fail.

The Reason for H.R. 5721:

Representative Lynch proposed H.R. 5721, the Overseas Security Personnel Fairness Act, to address an issue that arose from the September 2012 terrorist attack on the U.S. Consulate in Benghazi, Libya.  Glen Doherty, a security contractor and former Navy SEAL, was killed during the attack.  He was unmarried, with neither children nor other dependents.  Yet, he had activated a mandatory Defense Base Act insurance policy before deploying to Libya wherein he had designated a beneficiary.

The Text of H.R. 5721:

The Overseas Security Personnel Fairness Act is short.  It states, in full:

A BILL

To amend the Defense Base Act (42 U.S.C. 1651 et seq.) to require death benefits to be paid to a deceased employee’s designated beneficiary or next of kin in the case of death resulting from a war-risk hazard or act of terrorism occurring on or after September 11, 2001.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1.  SHORT TITLE.

This Act may be cited as the “Overseas Security Personnel Fairness Act”.

SECTION 2.  DEFENSE BASE ACT AMENDMENTS RELATING TO DEATH BENEFITS

The Defense Base Act (42 U.S.C. 1651 et seq.) is amended by adding at the end of the following new section:

“SEC. 6. DEATH BENEFITS.

“(a) In General.–In the case of a person covered by this Act who dies as a result of a war-risk hazard or act of terrorism, if there is no person eligible for a death benefit of the deceased under section 9 of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 909), then the benefits provided under section 9(b) of such Act to a widow or widower of the deceased shall be paid–

“(1) to a beneficiary designated by the deceased; or

“(2) if there is no designated beneficiary, to the next of kin of the estate of the deceased under applicable State law.

“(b) Payment of Benefits.–Benefits found to be due under this section shall be paid from the compensation fund established pursuant to section 8147 of title 5, United States Code.

“(c) War-Risk Hazard Defined.–In this section, the term ‘war-risk hazard’ has the meaning provided in section 201(b) of the War Hazards Compensation Act (42 U.S.C. 1711(b)).

“(d) Effective Date.–The death benefit payable under this section shall apply with respect to deaths occurring on or after September 11, 2001.”.

Implicated Statutory Schemes:

Phew.  There is a lot going on in H.R. 5721.  It references the Defense Base Act, the Longshore and Harbor Workers’ Compensation Act, the War Hazards Compensation Act, and by reference to 5 U.S.C. 8147, the Federal Employees’ Compensation Act.

To understand what H.R. 5721 is doing, start at section 9 of the Longshore Act.  In the event of a work-related death of an employee covered by the Longshore Act, benefits are paid according to section 9.  Potential beneficiaries are defined by statute, with some classes of beneficiaries (e.g., widow and kids) preferred over other classes of beneficiaries (e.g., parents).  If a preferred class exists, then the preferred class takes benefits to the exclusion of the less preferred classes.

The Defense Base Act is an extension of the Longshore Act that applies to overseas federal contractors.   It has equal force for citizens of the United States and non-citizens, non-residents of the United States.  The DBA applies the Longshore Act exactly as the Longshore Act is written, except where the Defense Base Act says differently.

H.R. 5721 proposes adding a section to the DBA that would create more potential death benefits beneficiaries.  But the new beneficiaries would only receive benefits if (1) there are no statutory beneficiaries as defined by the Longshore Act and (2) the death was caused by a “war-risk hazard.”

According to the War Hazards Compensation Act, a “war-risk hazard” includes:

(1) the discharge of any missile (including liquids and gas) or the use of any weapon, explosive, or other noxious thing by a hostile force or person or in combating an attack or an imagined attach by a hostile force or person; or

(2) action of a hostile force or person, including rebellion or insurrection against the United States or any of its allies; or

(3) the discharge or explosion of munitions intended for use in connection with a war or armed conflict with a hostile force or person as defined [in the WHCA] (except with respect to employees of a manufacturer, processor, or transporter of munitions during the manufacture, processing, or transporting thereof, or while stored on the premises of the manufacturer, processor, or transporter); or

(4) the collision of vessels in convoy or the operation of vessels or aircraft without running lights or without other customary peacetime aids to navigation; or

(5) the operation of vessels or aircraft in a zone of hostilities or engaged in war activities.

So, if a death is caused by one of these things, and there are no other beneficiaries, then a beneficiary designated by the deceased could receive benefits.  But not from the employer or carrier.  And not from the Special Fund maintained by the Division of Longshore and Harbor Workers’ Compensation Act–the agency that administers the Defense Base Act.  Instead, the designated beneficiary would be paid by the Employees’ Compensation Fund, which is the fund managed by the Division of Federal Employees’ Compensation–the agency that administers the War Hazards Compensation Act.

Why H.R. 5721 Won’t Work:

Really, a law review essay could be written about the reasons why H.R. 5721 will not work.  For this blog post, I will pose just a few of the problems:

First, why is Representative Lynch trying to amend the Defense Base Act instead of amending the War Hazards Compensation Act–and only the WHCA?  If the Defense Base Act does not apply to a particular claimant, yet the injury was caused by a “war-risk hazard,” then that claimant may file a claim for benefits pursuant to Section 101(a) of the WHCA.  If H.R. 5721 requires payment out of the Employees Compensation Fund instead of payment from a Defense Base Act insurer pursuant to a DBA insurance policy, then the problem that Representative Lynch is trying to solve should be limited to the WHCA.  In my opinion, H.R. 5721 goes out of its way to amend the DBA when the DBA should not have been implicated in the first place.

Second, what about aliens and nonnationals?  Section 2(b) of the Defense Base Act, which addresses death benefits to foreign nationals, limits beneficiaries to the “surviving wife and child or children, or if there be no surviving wife or child or children, to surviving father or mother….”  Does H.R. 5721 have any affect on the rights of aliens and nonnationals who may also designate a beneficiary?

Third, why is H.R. 5721 limited only to “war-risk hazard” deaths?  Based on the language used, H.R. 5721 would not apply to the death of a DBA contractor unless the death was caused by a “war-risk hazard” or act of terrorism.

Fourth, retroactive to September 11, 2001?  This would involve reopening closed cases where the applicable statute of limitations–section 13 of the Longshore Act–has long expired.

The Better–and Simpler–Course of Action:

Instead of amending the Defense Base Act, Representative Lynch should have taken a closer look at the War Hazards Compensation Act.  Section 101(a) allows WHCA benefits when an employee specified in section 1(a)(5) of the DBA is injured or killed, yet no compensation is payable with respect to the injury or death.  Further, section 102(a) of the WHCA provides information for the payment of death benefits, stating that “the scale of compensation benefits and the provisions for determining the amount of compensation and the payment thereof as provided in sections 8 and 9 of the Longshoremen’s and Harbor workers’ Compensation act . . . can be applied under the terms and conditions set forth therein . . . .”

All things considered, Representative Lynch could achieve the same result by amending only section 102 of the WHCA.  Although the Division of Federal Employees’ Compensation may have a headache or two applying the amendment, at least Representative Lynch could avoid turning the Defense Base Act on its ear with respect to death benefits.

Conclusion:

I doubt that H.R. 5721 will pass, despite the sympathetic reasons that led to Representative Lynch’s introduction of the Bill.  Still, though, Representative Lynch could consider proposing new legislation in the future that amends section 102 of the WHCA, thus accomplishing the same results.

Finally, here is a hyperlink to the Glen Doherty Memorial Foundation.  With the holiday season upon us, it is a good time for donating to the foundation.

Image courtesy of Flickr by user Cliff1066.

BRB Weighs Widow Status, Remands for Justifiable Cause and Conjugal Nexus Determination

Decedent worked as a crane operator for twenty years, including six years for Employer.  He retired in 2004 because of orthopedic problems.  In 2008, Decedent was diagnosed with lung cancer.  Following his death in 2009, which was caused by non-small cell lung carcinoma with contributing causes of chronic obstructive pulmonary disease, hypertension, and pulmonary embolus, Claimant filed a claim for death benefits.  The issue was whether Claimant qualified as a “widow” under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).

Pursuant to Section 2(16) of the LHWCA a “widow” includes a decedent’s wife who was “living with or dependent for support upon [the decedent] at the time of [the decedent’s] death; or living apart for justifiable cause or by reason of [the decedent’s] desertion at such time.”

The administrative law judge (“ALJ”) determined that Claimant was not a “widow.”  According to the ALJ, Claimant and Decedent had legally separated; there was no evidence of reconciliation; and the conjugal nexus had severed when Decedent filed for divorce.

On appeal to the Benefits Review Board, Claimant argued that she was a “widow” because she was dependent upon Decedent for support or, alternatively, she was living apart from Decedent for justifiable cause.  Claimant alleged she was dependent because of her receipt of the community portion of Decedent’s retirement pension, and Decedent’s continued health insurance coverage for Claimant.  The problem, however, was that Claimant did not raise this argument in front of the ALJ.  Accordingly, Claimant was required to show that she lived apart from Decedent for “justifiable cause” and that a “conjugal nexus” remained between Decedent and Claimant at the time of Decedent’s death…five years after they began living separate and apart from one another.

The alleged “justifiable cause” for living separate and apart was that Decedent had abused Claimant and that Decedent consumed too much alcohol.  The ALJ did not make a “specific finding regarding any justifiable cause for the separation, and addressed only whether a conjugal nexus existed at the time of death.”  Because the justifiable cause analysis was incomplete, the BRB vacated the ALJ’s denial of benefits and remanded the case with specific instructions:

On remand, if the administrative law judge finds evidence that, at the time of decedent’s death, there no longer was justifiable cause for claimant and decedent to be living apart, see Henderson, 204 F.2d at 179, claimant cannot be decedent’s widow and benefits should be denied.  If, however, he finds that the original justification persisted to the date of death, then he must consider whether the conjugal nexus had been severed.

The BRB also had instructions for the ALJ with respect to the conjugal nexus inquiry:

On remand, the administrative law judge must assess the weight and credibility of this, and any other, relevant testimony and evidence, as well as resolve conflicts in the evidence, in order to determine if claimant’s conduct maintained or severed her conjugal nexus with decedent.  The administrative law judge should re-examine the case precedent in view of the proper focus on claimant’s actions in maintaining or severing the conjugal nexus.  If the administrative law judge finds that the conjugal nexus between claimant and decedent had been severed, claimant is not decedent’s “widow,” and she is not entitled to death benefits.  If the administrative law judge finds that a conjugal nexus between the two existed at the time of decedent’s death, then claimant is decedent’s “widow” under the Act.  He then must address whether decedent’s death was work-related such that claimant is entitled to death benefits.

Johnston v. Hayward Baker, BRB No. 14-0032 (2014).