NINTH CIRCUIT HOLDS DEFENSE BASE ACT’S ZONE OF SPECIAL DANGER APPLICABLE TO LOCAL NATIONALS

Claimant, a citizen of the Marshall Islands, was employed as a civilian defense contractor based in the Kwajalein Atoll, which houses the U.S. Army Space and Missile Defense Command’s Ronald Reagan Ballistic Missile Defense Site.  Claimant was hired as a painter and was given a four-day overnight assignment to paint and repair the Gagan Island pier.  While on Gagan Island, Claimant and co-workers resided in Employer’s trailer, which had limited space and food.  Claimant, as was culturally customary for Marshallese, engaged in reef fishing after hours to catch and eat the fish within the local body of water.  The DBA employer had a policy of prohibiting reef fishing during work hours.  While reef fishing on Gagan Island after hours, Claimant slipped and fell, cutting his right foot.  This injury became infected and ultimately resulted in the amputation of Claimant’s right leg below his knee.

 

Claimant sought benefits pursuant to the Defense Base Act as an extension of the Longshore & Harbor Workers’ Compensation Act.  The Employer denied benefits asserting that the zone of special danger did not apply to local nationals, but only to foreign nationals.  The ALJ and BRB disagreed with Employer and awarded benefits.  On appeal, the Ninth Circuit affirmed the award of benefits.

 

The Ninth Circuit held that the plain language of the DBA does not distinguish between employees sent abroad from their home country and local nationals.  Further, the court held that Congress implicitly endorsed applications of the zone of special danger to local nationals, citing to O’Leary, the United States Supreme Court case that first articulated the zone of special danger in 1951.  Further O’Leary and its progeny did not distinguish between employees sent abroad and local nationals, as Claimants’ domiciles are never broached in those cases.  The Ninth Circuit, however, did note in dicta that if Claimant were injured at home in his living room instead of injured during a four-day overnight work assignment on an uninhabited island with restricted access, then the zone of special danger would not likely apply.

 

Chugach Management Services v. Jetnil & Director, OWCP