While 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).