In a recent Defense Base Act (DBA) case, Butcher v. Service Employees International, Inc., the Benefits Review Board examined the scope of the Zone of Special Danger Doctrine, ultimately affirming that the DBA should not be extended to personal vacations that are far removed from the claimant’s base of employment.

Zone of Special Danger Doctrine

In routine workers’ compensation claims, an injured employee may only receive compensation for an injury that occurred during the course and scope of employment. Accidents that occur outside of employment, including recreational activities, are normally claims that are not compensable under workers’ compensation law.

The DBA, extending the Longshore Act, provides for a “Zone of Special Danger Doctrine.” Simply put, this doctrine allows an injury to be covered and compensable if it results from a “risk of employment, an incident of service, foreseeable, if not foreseen.” O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 507 (1951).

Butcher: Claim Background and OALJ Decision

In Butcher, Claimant worked for Service Employees International in Iraq. While on a trip for rest and relaxation, on September 23, 2008, Claimant was involved in moped accident in Phuket, Thailand, that resulted in a traumatic brain injury. Claimant filed a claim under the DBA alleging he could no longer perform his work duties and that his injuries were covered under the Zone of Special Danger Doctrine as he was engaged in a reasonable recreational activity in a foreign country while on leave from his employment in a zone of war.

In the contract, Employer argued that recreational activities while on leave outside the vicinity of Claimant’s location of employment are not within DBA coverage and are not compensable. The Office of Administrative Law Judges (OALJ) ultimately held for Employer citing, among several other reasonings, Claimant’s employment contract permitting interim leave, that the leave was voluntary even though it would be forfeited if not used, that Claimant had no work duties while on leave, that Employer placed no restrictions on Claimant’s recreational activities, and that Claimant, on his own, paid for his flights to Thailand.

The OALJ concluded that finding that Claimant’s injury was covered by the Zone of Special Danger Doctrine would act as to expand the doctrine beyond recognition and stated that Claimant was “so thoroughly disconnected from the service of his employer.”

The Appeal: Discussion and Ruling

On appeal to the Benefits Review Board (BRB), the decision of the OALJ was affirmed. The BRB stated that the zone of special danger is a special set of circumstances that varies from case to case and that the limits of the doctrine are defined by whether the accident and injury occurred within the zone created by the obligations and conditions of employment.

Regarding what defines the obligations or conditions of employment, the BRB stated that factors include the employee’s activities at the time of injury, work location, transportation arrangements, housing conditions, availability of recreational activities, and the control the employer exerts over the employee’s living conditions. The BRB referenced the following Supreme Court decisions and their holdings:

• O’Leary v. Brown-Pacific-Maxon, Inc.: all that is required for compensability is that the obligations or conditions of employment create the zone of special danger out of which the injury arose;
• O’Keefe v. Smith, Hinchman & Grylls Associates, Inc.: a decision awarding benefits for a claimant who drowned in South Korea holding that the claimant had to work under the exacting and unconventional conditions of Korea; and
• Sabanosh v. Navy Service Command/Nexcom: Holding that the Claimant’s attendance at a base social event, where the injury occurred, was due solely to the obligations and conditions of employment.

The BRB noted that in each of the above referenced cases the recreational activities occurred within the vicinity of the employment and its associated zone of special danger and that they occurred in or near the remote or confined area of the employment so much so that participation in them was not so far removed from the obligations or conditions of employment as to make them not foreseeable.

The BRB, affirming the decision of the OALJ, ultimately ruled that Claimant did not show that his injury on vacation in Thailand was related to the location and hazards of his overseas employment and that Claimant’s accident, in an entirely different country from his employment, was so disconnected from the service of his employer that it would be unreasonable to link his injuries to his employment. The BRB, in its reasoning, fully agreed with the reasonings of the OALJ including that Claimant was under no obligation to go to Thailand, that Thailand was 5,000 miles form his base of work, and that he paid for his chosen activities himself.

Conclusion

When assessing claims in which a claimant is alleging that their injury falls within the zone of special danger, an employer must be sure to take all factors of the injury, accident, location, and reasoning for Claimant’s presence at the accident location into consideration. The affirming of the holding in Butcher makes it clear that the DBA should not be extended to personal vacations that are so far removed from the claimant’s base of employment especially on vacations where the Claimant is in fully control of his activities and his travel as opposed to prior cases in which benefits were awarded to claimants who were involved in activities clearly connected to their employment.