“Zone of Special Danger” under the DBA

The Defense Base Act, an extension of the Longshore & Harbor Workers Compensation Act, was designed to compensate those workers injured overseas while working for U.S. contractors.  Since its enactment in 1941 there has been a long line of cases determining what is and is not considered “within the scope of employment” for DBA purposes.

In traditional workers compensation schemes there must be a direct causal relationship between the work performed and the injury or illness that has been sustained.  Most state workers’ compensation programs will require this causal relationship before even considering any claim for compensation.

For example, most workers’ compensation rules will not allow a claim for an injury occurring while traveling to or from work, as this is an action considered to be “within the scope of employment” as it does not directly benefit the employer.  (There are some exceptions to this, but we will discuss those in another post.)

The “Zone of Special Danger”

However, the rules change dramatically when the worker is placed in a “Zone of Special Danger” byZone of Special Danger the employer.  The claimant must prove that the obligations or conditions of employment placed them in this “special zone of danger” out of which the injury or death arose.  This doctrine applies when the conditions of employment place the worker in a foreign setting where the worker is exposed to danger.  By definition, this applies to most of those working for U.S. contractors.

Claims filed under the DBA do not have the traditional causal requirement because there is this specific, judicially created legal concept called the “Zone of Special Danger.”   This concept was first articulated by the U.S. Supreme Court in a 1951 decision on a DBA case, O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504 (1951).  Interestingly, the Court borrowed language from a 1917 English case:

The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his/her employer. All that is required is that the “obligation or condition” of employment create the “zone of special danger” out of which the injury arose.

Often, there is inherent danger just being present in the geographical location where the work is being performed.  For instance, there have been lots of contractors employed in Iraq and Afghanistan, which are still considered war zones.  While the salaries are enticing, it is dangerous.   Many injuries and even deaths have occurred while working in these dangerous areas.  If you or someone you know has been injured or killed, they or their families may entitled to benefits under the Defense Base Act.

The coverage under the DBA is much broader than that provided in the LHWCA, due to this concept of “Zone of Special Danger.”  The Courts have found that injuries occurring during recreational activities can be compensable, because it is to be expected in remote or dangerous areas that the company provides for, expects and encourages such recreation.  Often workers are considered to be “on call” and therefore never really away from the job.

If you think about it, it just makes sense to expand coverage in these situations.  Often the contractors are working side by side with the military, they are housed on bases or in company housing, they are far from home and they have been brought there by the employer.  Therefore, the courts have found that if the worker is hurt or killed while engaged in “reasonable recreation” within this “zone of special danger” it is compensable under the DBA.

There Are Limits

Don’t be fooled into thinking that ANY injury or death that occurs while working overseas for a U.S. contractor gives rise to compensation.  The law has been construed fairly broadly to allow compensation in most cases, but there are limits to this generosity.

The U.S. Supreme Court has drawn the line at only those cases where the circumstances are some interesting cases defining these boundaries, including one where a worker met and married a woman in Viet Nam in 1972.  The following year, the husband/worker was killed during a home invasion.  The men responsible for the murder implicated the wife as mastermind of the conspiracy to kill the husband, yet she attempted to obtain compensation for his death under the DBA.  Needless to say, even though he was working in that “zone of special danger,” her claim was denied because she should not be able to benefit from her wrongdoing.  This line of decisions also just makes sense.

We discussed in another post the circumstances of the former Navy Seals found dead on the Maersk Alabama.  While it is too early in the investigation to know with any certainty, one can speculate that there will be no compensation for their families under the DBA because even though they were (a) working for a U.S contractor and (b) in a “zone of special danger” the possibility that they inflicted the harm on themselves could prevent to any compensation under the DBA.

Where Do I Go for Help?

If you have been injured or a family member killed while working overseas for a U.S. Contractor, you should contact an experienced DBA attorney as soon as possible.  There are time limits for filing the claims and very technical procedures involved in pursuing a claim.  Many times the insurance companies try to deny the claims, and it is necessary to proceed to litigation.   Defense Base Act law is a very specialized area of law, and you need to find competent, experienced, successful attorneys to help you with your claim.