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)
© 2018 Ira J. Rosenzweig