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Office of Administrative Law Judges
The Defense Base Act—A Growth Industry?
By Kerry J. Anzalone
Counsel for Longshore, Office of Administrative Law Judges,
U.S. Department of Labor

© Copyright 2004 by LexisNexis/Matthew Bender. All rights reserved. Originally printed in Benefits Review Board Service—Longshore Reporter (Matthew Bender). Reprinted with permission.

Kerry J. Anzalone is Senior Counsel for the Longshore Program at the U.S. Department of Labor, Office of Administrative Law Judges. He graduated from the Louisiana State University (LSU) School of Journalism with a B.A.J.. He received his J.D. from LSU Law Center and his LL.M. in Admiralty from the Tulane University School of Law. The views and opinions expressed in this article are his own and do not represent the official position of the Department of Labor.

   Most readers are at least passingly familiar with the extension acts of the Longshore and Harbor Workers Act (LHWCA). 33 U.S.C. §901 et seq. These include, the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et. seq.; the Non-Appropriated Funds Instrumentality Act (NAFA/NAFI), 5 U.S.C. § 8171 et. seq.; the District of Columbia Worker's Compensation Act (DCW), 36 D.C.Code §501 et seq. (1973); the Defense Base Act (DBA), 42 U.S.C. § 1651 et. seq. and the War Hazards Compensation Act (WHCA), 42 U.S.C. § 1701 et. seq. The focus here will be on the Defense Base Act, with a notation to the War Hazards Compensation Act.

   Generally, when longshore practitioners researching through the jurisprudence, come across exotic factual cases addressing injuries in far off places like the Middle East, Pacific Island Atolls, Southeast Asia, to name a few, they discover the DBA--cases concerning compensation benefits for the injuries and deaths of workers employed in relation to certain government contracts outside of the United States. These DBA (and to an even lesser extent, WHCA) cases make up a small minority of "longshore claims." Due to recent world events, some in the media are indicating there is anticipation of an increase in the number of these cases. While this article will not address the possibility of increased numbers of DBA and WHCA cases, it will provide the reader with a basic understanding of these interesting, often unique, claims.

DBA--Purpose

   Using the framework of the LHWCA, other acts have generally adopted substantive longshore law, with some variation and modification for particular needs. In the case of the DBA, it specifically states that in respect to the injury or death of any employee engaged in any employment noted within the DBA,…where such contract is to be performed outside the continental United States…for the purpose of engaging in "public work, " the LHWCA shall apply. 42 U.S.C. § 1651. The Second Circuit best summed up the purpose of the DBA in University of Rochester v. Hartman, 618 F.2d 170 (2d Cir. 1980): The DBA was originally intended to cover civilians employed at overseas military bases, was later extended to cover civilians working on overseas construction projects for the United States government or its allies, and was finally extended to protect employees fulfilling service contracts tied to such a construction project or to a national defense activity. As the Second Circuit noted, the sine qua non of the [DBA's] applicability has always been a military or a United States government construction connection. However, this can leave "coverage" to have a very wide scope.

   The purpose of the DBA "was to provide substantially the same relief to outlying territories…as the existing law affords employees in the United States…." Royal Indemnity Co. v. Puerto Rico Cement Corp., 142 F.2d 237, 239 (1st Cir.), cert. denied, 323 U.S. 756 (1944), citing H.R. Rep. No. 77-1070.

Adoption of Substantive LHWCA Law

   While there are several distinctions between DBA claims and other LHWCA claims (discussed infra), DBA claims on the whole tract LHWCA claims procedurally. 42 U.S.C. § 1651. ("Except as herein modified, the provisions of the [LHWCA] approved March 4, 1927 (44 Stat. 1424), as amended, shall apply in respect to the injury or death of any employee [covered by the DBA]…); AFIA/CIGNA Worldwide v. Felkner, 24 BRBS 154(CRT)(5th Cir. 1991)(The compensation protocol provided by the LHWCA governs a claim under the DBA except to the extent the DBA specifically modifies a provision of the LHWCA). See Pearce v. Director, OWCP, 603 F.2d 763 (9th Cir. 1979). Thus, the DBA is a general reference statute that incorporates not only the version of the LHWCA in force at the time the DBA was enacted, but all subsequent LHWCA amendments as well. AFIA/CIGNA Worldwide, at 155(CRT) n. 3. See OWCP v. Peabody Coal Co., 554 F.2d 310, 322 (7th Cir. 1977)("When a statute adopts the general law on a given subject, the reference is construed to mean that the law is as it reads thereafter at any given time including amendments subsequent to the time of adoption.").

   The DBA itself contains no substantive provisions; the entirety of the Act contains some procedural and definitional provisions specifically tailored to DBA claimants, but contains no provisions dealing with the substance of a claim under the DBA. All of the DBA's "substantive" provisions are found in the LHWCA. AFIA/CIGNA Worldwide at 156(CRT) n. 3.

   One significant difference between the filing procedure of the DBA and that of the LHWCA concerns where to file the claim. The DBA specifically modifies Section 19(a) of the LHWCA by providing different compensation district for filing claims arising under the DBA. See 42 U.S.C. § 1653(a). Basically, a claim must be reported to one of five district offices of OWCP. Which office to report to is determined by where the injury happened. For the geographic breakdown, see 20 C.F.R. § 704.101. These district offices administer the claim while the worker is still overseas. Once he/she returns stateside the claim can be transferred to the district office for the geographic area in which the claimant resides.

Tracking the LHWCA

   As with LHWCA claims, a claimant is entitled to a de novo hearing before an ALJ if the matter can not be resolved below at the district director level. Additionally, OALJ's alternative dispute resolution procedures can be utilized by the parties to settle a case.

   A claimant under the DBA must satisfy the same requirements as to proof of causation as any other claimant under the LHWCA. For example, in Piceynski v. Dyncorp, 31 BRBS 559 (ALJ) (1997), remanded at Piceynski v. Dyncorp, (Unpublished) (BRB No. 97-1451)(July 17, 1998), and reconsidered at 36 BRBS 134 (ALJ) (1999), the claimant was originally found to be unable to carry his burden of proof that his medical complications were the result of Gulf War Syndrome. In Wendler v. American Red Cross, (BRB No. 93-0423)(May 29, 1996)(unpublished), the claimant was unable to prove that she was exposed to agent orange during the period of time that she was stationed in Korea while working for the Red Cross as a "donut server."

   In Lee v. The Boeing Co., Inc., 123 F.3d 801 (4th Cir. 1997) transferred to U.S. District Court of Maryland, 7 F.Supp.2d 617 (D.Md. 1998), the issue arose as to whether the DBA incorporated Section 3(e) of the LHWCA. The claimant had suffered major injuries in a car crash while working for Boeing in Saudi Arabia. Boeing wanted a credit for payments that the claimant was receiving from the occupational Hazards Branch of the Social Insurance Laws of Saudi Arabia. The ALJ, had found that such a credit was appropriate. Lee v. The Boeing Co., 27 BRBS 597 (ALJ) (1994). The Board "affirmed by default (Public Law 104-314 Omnibus Appropriations for Fiscal Year 1996). The claimant then appealed the holding to the Fourth Circuit which found that it did not have jurisdiction to hear the case and transferred it to the District Court for the District of Maryland. [For more of the unique appeals process for DBA claims, see infra.] In upholding the ALJ, the district court specifically found that Saudi Social Insurance Law qualifies as a "workers compensation law" to which Section 3(e) of the LHWCA applies. While noting that after examining the "scant legislative history" indicating that, although Congress was specifically concerned with the interrelationship of state and federal compensation laws, and not with the interplay between federal law and that of foreign lands, the plain language of Section 3(e) stating that it applies to "any other workers' compensation law," would include the Saudi law.

   In Smith v. Director, OWCP, 17 BRBS 89 (1985), the Board determined that the substantive provisions of the LHWCA were controlling in reference to a lump sum commutation. Here the claimant was awarded benefits under the DBA. The employer was reimbursed for these benefits, however, from the Federal Employees' Compensation Act (FECA) Fund pursuant to the War Hazards Compensation Act (WHCA) because the injury resulted from a war risk hazard. The claimant later filed a claim for a lump sum payment of his future benefits. The judge awarded a lump sum commutation of the benefits under the WHCA and FECA. The Board determined that the substantive provisions of the LHWCA, not FECA, were controlling and that entitlement to commutation should have been considered under pre-1984 amended Section 14(j) of the LHWCA. The WHCA provided only the source of benefits. [For more of the WHCA, see infra.]

   Carrying the rationale of the LHWCA concept of "wages" one step further, the Board has held that in a DBA claim, overseas allowances and wage additives are properly included in the determination of an employee's wages because these amounts were (1) easily ascertainable, similar to board, rent or lodging, and (2) were included for purposes of tax withholding and could not be considered fringe benefits. Denton v. Northrop Corp., 21 BRBS 37, 46-47 (1988). See generally Cretan v. Bethlehem Steel Corp., 24 BRBS 35, 43-44 (1990): Lopez v. Southern Stevedores, 23 BRBS 295, 301 (1990); Thompson v. McDonnell Douglas Corp., 17 BRBS 6, 8 (1985).

Exclusions

   Similar to the LHWCA, but spelled out in the DBA itself, the act does not apply to a "master or member of a crew of any vessel." 42 U.S.C. § 1654(3); Sosenik v. Lockheed California Co., 14 BRBS 191 (1981) (claimant, employer's filed service representative aboard a U.S. Navy ship, was a crew member and was not entitled to benefits under the DBA). Presumably, in close cases LHWCA caselaw would provide the substantive analysis for determining seaman status. Also excluded from coverage under the DBA are employees subject to the Federal Employees' Compensation Act (FECA) and employees engaged in agriculture, domestic service, or any employment that is casual and not in the usual course of the trade, business, or profession of the employer. See Section 4.

Terminology

   A DBA claim must stem from a "contract" for "public work" overseas. The DBA defines several pertinent terms, such as "public works," "allies," "war activities," and "contractor." As normally in the case of legislation, while these terms are "defined," the researcher would do well to ascertain their judicial interpretations.

   The DBA defines "public work" to mean any fixed improvement or any project, whether or not fixed, involving construction, alteration, removal or repair for the public use of the United States or its allies, including but not limited to projects or operations under service contracts and projects in connection with the national defense or with war activities, dredging, harbor improvements, dams, roadways, and housing, as well as preparatory and ancillary work in connection therewith at the site or on the project.

   In analyzing a claim it may be necessary to examine both the funding source as well as the working agreement. In University of Rochester v. Hartman, supra, the Second Circuit held that a university professor who was killed while doing research in Antarctica under grants from NASA and the National Science Foundation was not covered under the DBA. The claimant was not engaged in "public work" and his research grant did not constitute a "contract" within the meaning of the DBA. "To be compensable under the DBA, a benefit claim must stem from a contract with the United States to perform public work overseas, public work constituting government-related construction projects, work connected with the national defense, or employment under a service contract supporting either activity." 618 F.2d at 176. Similarly, in Airey v. Birdair, Division of Bird & Sons, Inc., 12 BRBS 405 (1980), the Board found that a claimant had not established that any of his work for the employer was related to a service contract with the government.

   However, "public work" is at times construed liberally. In Alan-Howard v. Todd Logistics, Inc., 21 BRBS 70 (1988), the claimant was working in Saudi Arabia as an administrative assistant for a corporation which had contracted to provide logistical support to the U.S. Army Corps of Engineers. The Corps was involved in managing military construction for the Saudi government. The Board held that the administrative assistant's claim for injury was cognizable under the DBA since the undertaking to aid in the construction of a military facility for Saudi Arabia, an "ally" of the United States, constituted a "common defensive military alliance" and therefore qualified as the "public work" required for coverage under Section 1651(a)(4) of the DBA.

   Furthermore, the DBA exclusion from coverage of "any employee of…(a) contractor…who is engaged exclusively in furnishing materials or supplies under his contract" was held not to apply since the claimant's work as a facilitator under his employer's contract to provide "logistics management and support services" constituted a "service." Specifically, the Board viewed the pertinent exclusionary language as excluding manufacturers of goods used overseas from DBA coverage, rather than individuals who work on-site to facilitate the utilization of such goods.

   In Casey v. Chapman College, PACE Program, 23 BRBS 7 (1989), the Board held that a professor of Asian Studies who was injured on a U.S. Naval Base in Japan was covered under the DBA. The Board found that his employment teaching Asian Studies in the Pacific to Navy personnel was related to national defense and therefore constituted the "public work" required for coverage.

   Sometimes the issue isn't how the contract read, but rather, where the claimant was. For example, in Rosenthal v. Statistica, 31 BRBS 215 (1998), the Board held that a program manager injured while returning to the United States was not covered by the DBA. The employee was not performing activities related to the employer's contract with the State Department at the time of the injury and the employee's travel was not directly from Brussels (his duty station) back to the United States. Direct travel between home and job locations is covered. Employers' Mutual Liability Ins. Of Wisconsin v. McLellan, 304 F. Supp. 321 (S.D.N.Y. 1969)(Pilot killed in crash covered since he was in route between Air Force base in California and Air Force base in Okinawa where he was to perform government contract); Pillsbury v. Liberty Mutual Ins. Co., 143 F.2d 807 (9th Cir. 1944)(Claimant who had signed up in Denver to work overseas was covered when he was injured during a layover in California). The employee had taken a non-DBA contract related trip through Spain for which he and/or his company was covering his expenses when he was injured. Thus, one must ask more than whether the claimant was "in transit" between home and his job location; one must also ask the reason for the trip. Had the employee taken a short weekend holiday while solely working on DBA contract work, an argument could have been made that he was still within coverage.

The "Zone of Special Danger" Doctrine

   There is yet another, more significant geographic element to DBA cases called the "Zone of Special Danger" doctrine. While it may sound like something out of a science fiction movie, this doctrine provides a broad course and scope of coverage under the DBA, limited only by what the cumulative jurisprudence has deemed to be "reasonable."

   Under the DBA, the Supreme Court has allowed benefits where the injury did not occur within the space and time boundaries of work, but the employee was in a "zone of special danger." For example, in O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504 (1951), rev'g 182 F.2d 772 (9th Cir. 1950) the employee, while spending the afternoon in the employer's recreational facility near the shoreline in Guam, drowned while attempting to rescue two men in a dangerous channel. The Supreme Court in finding coverage held that "(a)ll that is required is that the obligations or conditions of employment create the zone of special danger out of which the injury arose." 340 U.S. at 507. "The test of recovery is not a causal relationship 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 an activity of benefit to his employer." Id. [The Ninth Circuit in O'Leary had held that where the employer maintained a recreation center especially for employees, and prominently displayed a notice prohibiting swimming in a particular channel one-half mile from shore, the action of an employee in swimming in the forbidden channel in an attempt to rescue an unknown man, was not recreation in the course and scope of his employment.]

   In O'Keefe v. Smith, Hinchman & Grylls Associates, 380 U.S. 359 (1965), the employee drowned in a lake in South Korea during a weekend outing away from the job. The Supreme Court found coverage, noting that the employee had to work "under the exacting and dangerous conditions of Korea." 380 U.S. at 364.

   In Gondeck v. Pan American World Airways, 382 U.S. 25 (1965), granting reh. and cert., rev'g 299 F.2d 74 (5th Cir. 1962) cert. first denied, 370 U.S. 918., the Supreme Court took the unusual step of granting a widow a rehearing to revisit the "zone of special danger" issue. Originally, the Fifth Circuit had acknowledged that while the employee was killed in an auto accident in a nearby town and was subject to call in that town, there was no benefit to the employer for the worker's trip to the nearby town on San Salvador Island. The Fifth Circuit had therefore upheld a denial of relief because there was "no evidence that furnishes a link by which the activity in which [the worker] was engaged was related to his employment." Noting that the Fifth Circuit itself in a subsequent case expressed doubt as to whether its decision in Gondeck was consistent with O'Leary and other circuits' holdings, the Supreme Court reversed the Fifth Circuit.

   A heart attack suffered by a claimant while off duty in a barracks provided by his employer in Thule, Greenland, was found to be covered by the Ninth Circuit. Ford Aerospace & Communications Corp. v. Boling, 684 F.2d 640 (9th Cir. 1982). While the Ninth Circuit reached the correct conclusion in Boling, its course in getting there was roundabout. The court seemed to dwell on the ALJ's findings that the heart attack victim was forced to live in a barracks wherein a stretcher could not be used to get to the worker, forcing the worker to walk from his room to the stretcher. It is submitted that perhaps the isolated location of Greenland alone would have sufficed as a "zone of special danger."

   In Page Communications Engineers, Inc. v. Messick, 315 F.Supp.569 (E.D. Penn. 1970), the court held that an employee's accidental death by electrocution (due to operation of a tape recorder in his hotel room in Vietnam) in a war zone area, while occupying necessary quarters, brought the widow claimant within DBA coverage. The court noted that the accident occurred on a Sunday and there was no evidence relating to whether or not the tape recording machine was being used for employment communication purposes. The court noted that the death occurred in a zone of special danger since it was in a war zone and then went on to further note that the employee's contract required him to move from place to place in necessary quarters and that this was sufficient to bring him into coverage. Citing Amalgamated Ass'n of Street, Electric Railway & M.C. Emp. Of America v. Adler, 119 U.S. App. D.C. 274, 340 F.2d 799 (D.C. Cir. 1964)(If in the course of employment an employee suffers an injury by reason of a risk incidental to the location where the employment requires him to be, that injury arises out of employment), and applied that principle to the DBA. It is submitted that the worker would still have been in a zone of special danger here even if he had not been in "necessary quarters." One could argue that the entire country was a zone of special danger.

   Page and Boling concentrate on specific geographical situations similar to "regular, run of the mill" LHWCA cases whereas later cases have taken a broader, more liberal approach to coverage. The approach in these two cases resembles that in Director, OWCP v. Brandt Airflex Corp, 645 F.2d 1053 (D.C. Cir. 1981) (Claimant who had to climb the stairs to the ninth floor in order to perform his job as a sheet metal worker since elevators had not yet been installed and who suffered congestive heart failure after climbing seven flights, suffered a compensable injury.) where the court used a course and scope analysis.

   However, it is noted that in Brandt Airflex the court incorrectly implied that it was applying a zone of special danger doctrine. This doctrine is only available to DBA and WHCA cases, not to any other LHWCA or extension act cases. Brandt Airflex was a D.C. Workers Compensation Act case. Similarly, in Evening Star Newspaper v. Kemp, 533 F. 1224 (D.C. Cir. 1976) the court's notation of the zone of special danger in connection with a D.C. Workers Compensation Act involving a shooting is misleading. See Preskey v. Cargill, 12 BRBS 916 (1980), rev'd on other grounds, mem. 14 BRBS 340 (9th Cir.1981)(Board holds that "zone of special danger" should only be used with reference to claimants subject to employment-related risks in foreign settings. "It is the alien character of the locale which justifies a liberalization of traditional standards for measuring the causal relationship between the employment and the injury, and application of the doctrine should be confined to such circumstances."). [Note, while the Ninth Circuit issued a memorandum reversal of the Board in Preskey, one can only come to the logically conclusion that the circuit court was reinstating the ALJ's award of benefits in relation to his finding that the activity was within the course and scope of employment; not that the circuit court was reversing the Board's holding on when the "zone of special danger" doctrine can be used.]

   However, there are limits to the zone's application. In Gillespie v. General Electric Co., 21 BRBS 56 (1988), the Board denied benefits under the DBA to the widow of an individual who died accidentally while attempting to temporarily asphyxiate himself as part of an autoerotic activity (euphemistically referred to as a ‘recreational activity") on an Air Force Base in West Germany on which he was employed as a civilian radar-equipment installer. In so doing, the Board found no evidence to support the proposition that a relationship existed between the conditions created by decedent's job and the activity which occasioned his death." Citing O'Leary, the Board held that the decedent had gone so far from his employment and become so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that his death arose out of and in the course of his employment.

   Another case where the "zone of special danger" test did not work was where a widow claimant was denied death benefits under the DBA on the ground that her complicity in the murder of her husband "effectively severed any causal relationship which may have existed between the conditions created by his job and his death," as well as on the policy ground that she not be allowed to benefit from her own wrongdoing. Kirkland v. Air America, Inc., 23 BRBS 348 (1990). Her husband was murdered during a burglary of his home. The widow was implicated by the two men who confessed to the crimes, one of whom was believed to be her boyfriend.

   In recent years the test has developed into one of what is reasonable. In Ilaszczat v. Kalama Services, 354 F.3d 1085 (9th Cir. 2004), aff'g 36 BRBS 78 (2002), pet. for cert filed 4/14/2004, S.Ct. No. 03-1440, risky horseplay/scuffles at a bar on an isolated atoll were found to be covered activity even if the conduct itself was unauthorized. An examination of the facts illustrates why coverage here is reasonable, under the circumstances. The claimant was employed as the manager of a self-help store on Johnston Atoll and had been socializing at the bar while off duty. Eventually he entered into a $100 wager with a military police officer as to the outcome of a karate demonstration between the two of them. While the claimant was recovering from hip surgery in Hawaii, the military commander of the atoll barred the claimant from ever returning.

   The ALJ found that the claimant did fall within the "zone of special danger" and that his conduct, although perhaps unauthorized and/or prohibited, was not so egregious as to sever the relationship between his employment and the injury under the doctrine. The employer on appeal challenged this finding and further argued that the ALJ had ignored the legal "reasonable recreation" standard, wherein only those incidents in which the claimant's conduct was reasonable are accepted as falling within the zone. In approving the ALJ's holding, the Board noted that the ALJ had pointed out that those living on the atoll had limited choices and opportunities for recreation, and that this was, presumably, the reason why the military had authorized the operation of "social clubs" on the atoll. The ALJ had further found that with the existence of clubs serving alcohol to employees, in combination with the employees' lengthy periods of isolation in the middle of the Pacific Ocean, it was clearly foreseeable by both the military authority and the employer that "risky horseplay" or scuffles such as that which occurred, would occur from time to time. As such, the ALJ had determined that the claimant's conduct was not "so far from his employment" and was not "so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that the injuries suffered by him arose out of and in the course of his employment."

   The ALJ had also found, assuming arguendo, that while the claimant was engaged in "unauthorized" or prohibited behavior (i.e., assuming that the employer's characterization is accurate and the incident involved wagering and fighting), this fact alone does not necessarily establish that the claimant's behavior was unforeseeable. Specifically, the ALJ found that the incident was "foreseeable, if not foreseen" by the employer and thus the mere fact that fighting was prohibited does not necessarily preclude the claimant's recovery even if fighting constituted grounds for expulsion from the atoll.

   [As a sidebar, the Board found that the issue as to whether the claimant in Ilaszczat should be barred of benefits because he was discharge and could not return to post-injury work due to his own misfeasance, became moot since the claimant was never offered any position by the employer post-injury, nor did the employer establish that suitable alternate employment would have been available to the claimant at pre-injury wages, but for, his discharge.]

   In Ilaszczat the Ninth Circuit found that the Board had properly held that the ALJ's factual findings were supported by substantial evidence. In analysis, the circuit court agreed with the Board and ALJ: "We agree that, under these circumstances, horseplay of the type that occurred here is a foreseeable incident of one's employment on the atoll." The court did not find that the worker's misconduct and breach of company rules was such a deviation so as to justify a denial of disability benefits.

   Another recreation claim of note is Smith v. Board of Trustees, Southern Illinois University, 8 BRBS 196 (1978). Here the worker, an educational advisor stationed in Nepal died as a result of a ruptured abdominal aortic aneurysm while playing golf in Nepal. The ALJ had found that the rupture was most likely the result of frequent diarrhea and vomiting as a result of the unsanitary conditions the worker encountered during his two year stay on the island. There was some evidence that the aneurysm was caused directly by playing golf. In its appeal, the employer argued that the evidence in reference to the golf game was sufficient to rebut the presumption of coverage. The Board held that under either theory (unsanitary conditions or exertion while playing golf) the claim was covered because the conditions of employment created a zone of special danger out of which the injury arose.

   Recently there have been attempts to limit the applicability of the "zone of special danger" doctrine. In Edmonds v. Al Salam Aircraft Co., Ltd., (Unpublished)(BRB No. 01-0602)(April 5, 2002) there was an attempt to limit the doctrine where a claimant crossing a highway in Saudi Arabia to go to a supermarket was hit and injured by a car. The employer appealed the ALJ's determination that the claimant was within the zone, arguing (1) that driving in Saudi Arabia is no more dangerous than driving in the United States, and (2) that the entire doctrine should be reconsidered "in light of the 21st Century, since applicability of this doctrine, as exemplified by past case precedent, is premised on an antiquated view of the world outside of the United States."

   The Board, in Edmonds, noted Supreme Court jurisprudence and declined to reconsider the doctrine "in light of the 21st Century" since the Board's use and application of the zone of special danger doctrine stems directly from binding Supreme Court precedent. Next, the Board noted that in this specific case the claimant was not "so thoroughly disconnected" from work for the employer that it was unreasonable for his injuries to be covered. The claimant's injuries were related to his living and working conditions in Saudi Arabia. Importantly, the employer did not provide the claimant with on-base housing or convenient transportation to and from the base. Furthermore, the employer did not provide the claimant with fresh food at the commissary on the housing compound so it was reasonable for him to buy food off-base. Also, the claimant was always on call and his hours of work were not consistent, thus making it reasonable for him to drive his own car. Lastly, the ALJ had determined, based in part on the claimant's credible testimony and a pamphlet distributed by the employer's predecessor, that driving in Saudi Arabia presented hazards not found in the United States.

   Edmonds is in line with several similar, older transportation/accident related circuit cases. In Takara v. Director, OWCP, 369 F.2d 392 (9th Cir. 1966) the court found coverage where an electric company employee working on Guam was injured when struck by a U.S. Navy truck while thumbing a ride back from a restaurant to the campsite, after he had rejected company supplied bus transportation. He was found to still be within the course and scope of his employment. In Pan American World Airways, Inc. v. Director, OWCP [Smith], 335 F.2d 70 (4th Cir.1964), several workers had been using their employer's jeep for recreation on a small island in the Bahamas when it overturned. They were found to be within the course and scope of employment despite the fact that the employer provided recreational facilities and the accident occurred when they were seeking recreation elsewhere. In Liberty Mut. Ins. Co. v. Gray, 137 F.2d 926 (9th Cir. 1943), an employee working on defense projects in Hawaii was injured returning from a two day holiday after working for seven straight days. A truck belonging to an affiliated contractor was giving him a lift when a collision occurred. In upholding coverage, the court stated that it could properly be inferred that two days recreation contributed to a higher efficiency in the employer's wartime work and that furnishing transportation for a prompt return to work facilitated the performance of his work with his renewed vigor and therefore could be considered an incident of his employment.

The Appeal Process

   Another way that DBA cases differ from regular LHWCA cases is the appeals process. There is a split amongst United States courts of appeal as to the proper route of appeal of a DBA case. The Sixth and Fourth Circuits have concluded that Section 21(b)(3) of the LHWCA as amended in 1972 (provides for direct review of the Board's decision by the U.S. court of appeals for the circuit in which the injury occurred) was not incorporated into the DBA under 41 U.S.C. § 1653(b). Review would therefore remain in the appropriate district court as it did prior to the amendments (and thence to the court of appeals). Home Indem. Co. v. Stillwell, 597 F.2d 87 (6th Cir. 1979), cert. denied, 44 U.S. 869 (1979); Lee v. The Boeing Co., 123 F.3d 801 (4th Cir. 1997)(Congress specifically amended the provisions of the LHWCA without changing Section 3(b) of the DBA). The Fifth Circuit also holds that the appeal of the Board's order on a DBA claim is to the district court. AFIA/CIGNA Worldside v. Felkner, 930 F.2d 1111, 24 BRBS 154 (CRT) (5th Cir. 1991), cert. denied, 502 U.S. 906 (1991).

   The Seventh and Ninth Circuits, however, have concluded that Congress meant to incorporate the LHWCA, as amended in 1972, into the DBA. Accordingly, appellate review of Board decisions in these circuits lies with the court of appeals for the circuit where the office of the district director or judge whose compensation order is involved, is located. Pearce v. Director, OWCP, 603 F.2d 763, 10 BRBS 867 (9th Cir. 1979), transferred, 647 F.2d 716, 13 BRBS 241 (7th Cir. 1981), discussing Pearce v. McDonnell Douglas Corp., 5 BRBS 573 (1977); see also Parsons Corp. of California v. Director, OWCP, 619 F.2d 38 (9th Cir. 1980).

Waiver of Applicability

   Yet another distinction between the two acts is the availability of a waiver of applicability under the DBA by the Secretary of Labor. The DBA provides that, upon the recommendation of the head of any department or other agency of the United States, the Secretary of Labor may waive the application of the DBA with respect to any contract or classification of employees. 42 U.S.C § 1651(e). In Ann v. Eastern Construction Co., 17 BRBS 163 (1985), the Board affirmed the judge's finding that the document waiving DBA coverage limited the claimant's recovery to the workers' compensation provided by the law of her own country (the Philippines), rather than affording the claimant the option of electing the more favorable benefits of the place of injury (Republic of Vietnam).

The War Hazards Compensation Act

   The WHCA provides benefits to persons injured or killed due to a war, whether declared or an "armed conflict" by military forces of any origin occurring in the foreign country where the claimant is working; or a worker who is detained or taken prison by hostile forces. It provides coverage to employees covered under the DBA and the Non-Appropriated Fund Instrumentalities Act who are working outside of the United States who would not otherwise be covered by those acts because the injuries/deaths were caused by hostile actions. In essence, it is a funding mechanism. All WHCA claims are handled by the Washington, D.C. district of OWCP. Any injury or death caused by "hostile action" can be the basis of a claim. The scope of persons covered is broad, but they must be civilian, non-government workers. The list includes, but is not limited to, employees of contractors, public welfare organizations, and military base civilian personnel.

© Copyright 2004 by LexisNexis/Matthew Bender. All rights reserved. Originally printed in Benefits Review Board Service—Longshore Reporter (Matthew Bender). Reprinted with permission.