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Recent Developments in DBA Zone of Special Danger Cases

The Defense Base Act provides workers comp protection to certain civilian employees working outside the United States on US military bases or under a contract with the US government. An important component of the Defense Base Act is what is known as the Zone of Special Danger.

The Zone of Special Danger applies when the conditions of employment place the worker in a setting where the worker has a heightened risk due to exposure to a higher degree of danger.

The DBA Zone of Special Danger Started in England

The ZOSD was actually “borrowed” from England, by way of a 1917 English case called Thom v. Sinclair. In that case, the House of Lords examined whether an injury arose in the scope of employment when a wall fell on top of a shed where the employee was working. The key determination was that courts should consider the nature, conditions, obligations, and incidents of employment to determine whether the employee was in a ZOSD when the injury occurred.

The DBA Zone of Special Danger in the US

Justice Cardozo first used the term DBA Zone of Special Danger in the United States in the 1920s. Prior to his appointment as Associate Justice of the Supreme Court of the United States, Benjamin Cardozo served as a judge on the New York Court of Appeals. In 1920, then-Judge Cardozo applied the Zone of Special Danger doctrine in deciding a case called Leonbruno v. Champlain Silk Mills. The case was brought by Leonbruno, a factory worker.

Leonbruno was performing his duties in the employer’s factory when he was struck in the eye by an apple which one of his fellow employees, a younger boy, was throwing at another. Consequently, Mr. Leonbruno lost part of the sight in one eye. Then-Judge Cardozo found that Leonbruno’s exposure to the risk of injury from the careless acts of others in the factory brought him within the Zone of Special Danger, in that “whatever men and boys will do when gathered together in such surroundings, . . . was one of the perils of his service.” In other words, Leonbruno was injured not just because he worked in a factory, but because he worked in a factory where some of the young factory workers (pre-child labor laws, which took effect in 1938) were prone to hijinks. The risks of such associations and conditions became risk factors of the employment itself.

Other jurisdictions were quick to apply the DBA Zone of Special Danger doctrine in favor of injured workers or their survivors. A Texas court issued an opinion favoring Leonbruno‘s Zone of Special Danger, saying that Cardozo’s ruling in Leonbruno “stated the rule splendidly.” Other jurisdictions followed suit.

The U.S. Supreme Court and the DBA Zone of Special Danger

In 1951, the U.S. Supreme Court applied the ZOSD doctrine to a Defense Base Act claim in O’Leary v. Brown-Pacific-Maxon, Inc. In its opinion, the Supreme Court stated core concepts of the ZOSD doctrine:

The test of recovery is not a relation between the nature of employment and the injured person and the accident. Thom v. Sinclair, (1917) A.C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the ‘obligations or conditions’ of employment create the ‘zone of special danger’ out of which the injury arose.

The DBA Zone of Special Danger is Still In Use Today

The Court has essentially left unchanged the core concepts of the Zone of Special Danger doctrine since its inception in 1951. Recent caselaw indicates that the ZOSD is still alive and well, and far from the original apple in the eye, it is now being applied to injured civilian defense workers in the mid-East and elsewhere. The doctrine expands the scope employer liability, and as such is something valuable to consider when filing a Defense Base Act Claim.

A significant development occurred in 2020 with the case Jetnil v. Chugach Management Services (BRB No. 19-0400). The Benefits Review Board (BRB) held that injuries sustained during non-work activities in a “zone of special danger” can be compensable even if the employee was living there permanently rather than temporarily. This expanded the traditional scope of the doctrine.

Recent Developments in Zone of Special Danger Doctrine

A significant 2020 development came in Jetnil v. Chugach Management Services, where the Benefits Review Board (BRB) expanded the doctrine’s application to employees living permanently in the location of their employment, not just temporary assignments. This ruling broadened the traditional scope of ZOSD coverage and has important implications for long-term overseas workers.

Recent cases have also clarified the geographic boundaries of the Zone of Special Danger doctrine. While the doctrine generally applies broadly to overseas locations, courts have established some limitations. For instance, the doctrine typically doesn’t apply to local nationals working in their home country, as established in the Flores v. Director, OWCP case. This distinction is important for employers and workers to understand when evaluating potential claims.

Modern applications of the ZOSD doctrine have particularly focused on injuries occurring during recreational activities or personal time. Courts have generally held that when employees are working in remote or dangerous locations, activities that would normally fall outside the scope of employment may be covered. This includes injuries sustained during after-hours activities, recreational sports, or local travel, provided these activities are reasonable given the employment circumstances and location.

The global pandemic also added a new dimension to Zone of Special Danger claims. Several cases have addressed whether COVID-19 infections contracted by overseas workers fall within the ZOSD doctrine. The key factors courts consider include the worker’s location, the prevalence of COVID-19 in that area, and whether the employment conditions increased exposure risk compared to the general population.

Finally, recent cases have clarified the burden of proof in ZOSD claims. While there is a presumption in favor of coverage when an injury occurs within a zone of special danger, employers can rebut this presumption by showing the injury was caused by the employee’s intentional misconduct or activities that substantially deviated from the reasonable and foreseeable incidents of employment.

Best DBA Zone of Special Danger Attorneys

Our highly specialized Defense Base Act attorneys are committed to ensuring that every injured or disabled civilian employee obtains the benefits he or she has earned. We have successfully filed hundreds of Defense Base Act applications and appeals – obtaining millions of dollars in DBA benefits in over four decades of legal service.

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