Zone of Special Danger Applies to Local Nationals in their Home Countries

The zone of special danger doctrine of the Defense Base Act applies to local nationals working in their home country who are injured during their off-duty hours, the Benefits Review Board recently held. 

The DBA covers employees who are neither citizens nor residents of the United Stated States and who are employed in their homelands by DBA employers.  The zone of special danger doctrine provides that a DBA employee may be within the course of employment when injured, even if the injury did not occur within the space and time boundaries of work, if the “obligations or conditions of employment” create a “zone of special danger” out of which the injury arose.

At one time in the 1950s, the DBA was amended to remove non-U.S. citizens from coverage.  However, later amendments restored this coverage.  The Board held as a matter of law that these Congressional changes to the DBA did not prohibit application of the zone of special danger doctrine to local nationals,  because the doctrine was first announced by the Supreme Court in 1951, prior to the amendment removing non-U.S. citizens from coverage.  Moreover, the Board noted, when Congress later restored coverage, it did not include any restrictions against covering local nationals. 

The Board further explained that the application of the zone of special danger doctrine to cases involving local nationals who are injured while working in their home countries involves a factual determination.  “The zone of special danger doctrine may or may not be applicable to a local national working for a DBA employer in his home country, depending on the specific circumstances presented by the individual case.  As is generally true for DBA cases involving the application of the zone of special danger doctrine, the question of whether the doctrine is applicable to a claim filed by a local national is a factual determination ….”

In this case, the claimant, a citizen of the Republic of the Marshall Islands, lived on a small island in the Republic.  He worked at the U.S. Army Space and Missile Defense Command’s Ronald Reagan Ballistic Missile Defense Test Site near the Island, for employers providing logistical support for the missile site.  At times, the claimant worked on an island only accessible by boat or helicopter.  Work assignments on this island required that employees remain on the island during off-duty hours.  While employees worked on the island, the employer provided food and ice.  However, the claimant, who suffers from diabetes, had been advised by his doctor to eat fish whenever possible.  One day after work, while wearing “flip-flop style sandals,” the claimant went fishing on the reef on the island for his dinner.  He slipped and cut his right foot on the coral.  After a few days, the cut required significant medical attention, and a claim resulted.

The Board affirmed the ALJ’s determination that “claimant’s presence on Gagan Island for four days was due solely to the fact that the obligations and conditions of his employment required it; he could not have been there otherwise, as access to the island was restricted and claimant could leave the island only by utilizing the transportation provided by employer.  Thus, contrary to employer’s argument, the fact that claimant was working in his home country is not dispositive of the zone of special danger inquiry in this case as claimant’s presence at the particular place of his injury, Gagan Island, was due solely to the obligations and conditions of his employment.”

Jetnil v. Chugach Management Services, BRB No. 14-0361 (7/21/15)