Tort "Zone of Special Danger" Not Apply to the Longshore Act, says Fourth Circuit
The U.S. Fourth Circuit Court of Appeals recently rejected application of the tort “zone of danger” concept to the Longshore Act. Under the zone of danger test, only a worker who sustains a physical injury or who was “within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not.” Ceres Marine Terminals, Inc. v. Director, No. 15–1041 (U.S. 4th Cir. 3/24/2016) (citing Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 556 (1994)).
In this case, the claimant, a forklift operator, backed into a co-worker, causing severe injuries leading to the co-workers’ death. The claimant remained on the scene until rescue workers extracted the co-worker and rushed her to the hospital. However, at no time was the claimant in imminent danger. The claimant almost immediately stopped working and started treatment for PTSD. The employer denied benefits, and argued for the application of the zone of danger concept, meaning that the claimant could not receive compensation unless he “sustains a physical injury or is placed in immediate risk of harm.”
The Fourth Circuit rejected the zone of danger test, explaning: “The LHWCA plainly does not encompass such a limitation [the zone of danger test] by its express terms. The LHWCA does not distinguish between psychological and physical injuries—the statute simply says ‘injury.’ … Nowhere in the statute is there a requirement that psychological injuries be accompanied by actual or threatened physical harm. To be sure, Congress could have easily written the statute to contain such a requirement, but it did not.” The Fourth Circuit emphasized that “further, courts interpreting § 902(2) of the LHWCA have held that claimants can recover for a work-related psychological injury, and have never mandated actual or threatened physical harm to be a prerequisite for coverage.” Based on this finding, the Board refused to review the ALJ’s finding that the claim was compensable.
Of course, the tort “zone of danger” concept is different from the “zone of special danger” doctrine utilized in Defense Base Act cases.
In its decision, the Fourth Circuit also emphasized that the opinion of an independent medical examiner appointed by the Department of Labor is not entitled to dispositve weight.
Ceres Marine Terminals, Inc. v. Director, No. 15–1041 (U.S. 4th Cir. 3/24/2016)
The employer should pay for a medical examination in support of its case, according to the Board. The parties were disputing the extent of disability, and the employer wanted medical and vocational evaluations to develop its case. The claimant lived in Rosarito, Mexico, and the employer scheduled evaluations in San Diego, where the claimant had attended his own evaluations. The ALJ granted the employer’s motion to compel the evaluations in San Diego, and further ordered the clamant to pay his own expenses. The Board agreed with the ALJ’s order requiring the examinations in San Diego, but reversed the order requiring the claimant to pay his own expenses. The ALJ considered these evaluations to be an “aspect of discovery,” and the Board agreed. However, as an aspect of discovery, the Board stated that each party had to bear its own costs, such that, in this case, the Employer had to pay the claimant’s costs in attending the evaluations. The “Employer must bear the cost of obtaining its own evidence.” The Board also held that forcing the claimant to pay his own expenses was not an appropriate sanction for the claimant missing earlier appointments for evaluations. Instead, the appropriate remedy is to suspend the claimant’s compensation or certify the discovery dispute to the district court. Notably, the Board initially dismissed the claimant’s appeal, because the order from the ALJ was interlocutory. However, the Board decided that “its guidance [was] necessary to direct the course of the adjudicatory process” in the case, and granted a motion for reconsideration.
Pensado v. L-3 Communications Corp., BRB No. 14-0116 (4/30/14).
© 2018 Ira J. Rosenzweig