Chugach Management Services v. Edwin Jetnil ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHUGACH MANAGEMENT SERVICES; No. 15-72873
ZURICH AMERICAN INSURANCE
COMPANY, BRB No.
Petitioners, 14-0361
v.
OPINION
EDWIN JETNIL; DIRECTOR, OFFICE OF
WORKERS’ COMPENSATION
PROGRAM; U.S. DEPARTMENT OF
LABOR,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Argued and Submitted May 16, 2017
San Francisco, California
Filed July 21, 2017
Before: William C. Canby and Mary H. Murguia, Circuit
Judges, and Cynthia M. Rufe, * District Judge.
Opinion by Judge Murguia
*
The Honorable Cynthia M. Rufe, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
2 CHUGACH MGMT. SERVS. V. JETNIL
SUMMARY **
Defense Base Act
The panel denied a petition for review of a decision of
the United States Department of Labor’s Benefits Review
Board (“BRB”) awarding disability benefits, pursuant to
the Defense Base Act, to Edwin Jentil, who was employed
by petitioner U.S. government contractor Chugach
Management Services when he was injured.
The Defense Base Act is a workers’ compensation
scheme for civilian employees working outside of the
continental United States on military bases or for companies
under contract with the U.S. government.
Jentil was a citizen of the Republic of the Marshall
Islands, and was injured while on a work assignment for
Chugach on the remote Kwaljalein Atoll, which houses the
U.S. Army Space and Missile Defense Command’s Ronald
Reagan Ballistic Missile Defense Site.
Under the judicially created “zone of special danger
doctrine,” employees may be compensated for “injuries
resulting from reasonable and foreseeable recreational
activities in isolated or dangerous locales.” Kalama Servs.,
Inc. v. Dir., Office of Workers’ Comp. Programs, 354 F.3d
1085, 1091 (9th Cir. 2004).
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
CHUGACH MGMT. SERVS. V. JETNIL 3
The panel held that the judicially created zone of special
danger doctrine could be applied to local nationals employed
in their home country under an employment contract covered
by the Longshore and Harbor Workers’ Compensation Act,
as extended by the Defense Base Act. The panel further held
that the administrative law judge and the BRB did not
commit legal error by applying the zone of special danger
doctrine to Jetnil, who was employed by a Defense Base
Act-covered contract in his home country. The panel
concluded that substantial evidence supported the ALJ and
BRB decision and the award of temporary total disability
benefits to Jetnil.
COUNSEL
Keith L. Flicker (argued) and Timothy A. Pedergnana,
Flicker Garelick & Associates LLP, New York, New York,
for Petitioners.
Patrick B. Streb (argued), Weltin Streb & Weltin LLP,
Oakland, California; Matthew W. Boyle (argued), Attorney;
Gary K. Stearman, Counsel for Appellate Litigation; Mark
Reinhalter, Counsel for Longshore; Rae Ellen James,
Associate Solicitor; M. Patricia Smith, Solicitor of Labor;
United States Department of Labor, Washington, D.C.; for
Respondents.
4 CHUGACH MGMT. SERVS. V. JETNIL
OPINION
MURGUIA, Circuit Judge:
We are charged with determining, for the first time,
whether the judicially created “zone of special danger
doctrine” can be applied to local nationals who are employed
in their home country under employment contracts covered
by the Longshore and Harbor Workers’ Compensation Act
(“LHWCA”), 33 U.S.C. §§ 901–950, as extended by the
Defense Base Act (“DBA”), 42 U.S.C. §§ 1651 et seq. The
DBA is a workers’ compensation scheme for civilian
employees working outside of the continental United States
on military bases or for companies under contract with the
U.S. government. Respondent Edwin Jetnil was employed
by petitioner and U.S. government contractor Chugach
Management Services (“Chugach”) when he was injured.
Jetnil sought and obtained disability benefits pursuant to the
DBA. Chugach and petitioner Zurich American Insurance
Company (collectively “Petitioners”) argue that the
administrative law judge (“ALJ”) and the United States
Department of Labor’s (“DOL”) Benefits Review Board
(“BRB”) committed a legal error by concluding that the zone
of special danger doctrine may apply, as a matter of law, to
local nationals employed in their home country pursuant to
a DBA-controlled contract (we refer to such individuals
throughout this opinion as “local nationals”). Petitioners
alternatively argue that substantial evidence did not support
the ALJ and BRB’s decision awarding Jetnil disability
benefits. We disagree. The zone of special danger doctrine
may apply to local nationals and substantial evidence
supports the ALJ and BRB’s decision that Jetnil’s injury is
compensable under the DBA. We therefore deny the petition
for review.
CHUGACH MGMT. SERVS. V. JETNIL 5
BACKGROUND
Jetnil, born in 1952, was a citizen of the Republic of the
Marshall Islands (“RMI”). Jetnil resided on Third Island, an
island in the remote Kwajalein Atoll that is approximately
2,400 miles southwest of Honolulu, Hawaii. Third Island
has no telephone service, no mail delivery, no airstrip, and
no electricity except that which is provided by portable
generators. The Kwajalein Atoll houses the U.S. Army
Space and Missile Defense Command’s Ronald Reagan
Ballistic Missile Defense Test Site.
From 1980 until the events at issue in this litigation,
Jetnil worked for contractors that provided services for the
U.S. Army on the Kwajalein Atoll. As relevant here, in
2009, Chugach hired Jetnil as a painter for approximately
$439 per week. Jetnil usually worked on a relatively large
island in the Kwajalein Atoll called Roi Namur, but
occasionally worked on Gagan Island. Gagan Island, also in
the Kwajalein Atoll, is uninhabited and houses some
communications buildings. There are no living quarters
except for a trailer provided by Chugach. Gagan Island is
accessible only by boat or helicopter and with the permission
of Chugach. When employees work at Gagan Island,
Chugach provides food and transportation to the island.
On January 7, 2009, Jetnil traveled to Gagan Island with
two coworkers to paint and repair the Gagan Island pier.
Chugach arranged for a boat to transport Jetnil and his
coworkers from Roi Namur to Gagan Island. While on
Gagan Island, Jetnil and his coworkers resided in Chugach’s
trailer, which had three bedrooms, a refrigerator, a living
room, a television, and a bathroom. Jetnil and his coworkers
brought rice, bread, chicken, hot dogs, and bacon in an ice
box for their four-day assignment on Gagan Island. In
6 CHUGACH MGMT. SERVS. V. JETNIL
addition, employees would occasionally fish while on Gagan
Island and store fish in the trailer’s refrigerator.
Chugach had a policy prohibiting reef fishing during
work hours. At approximately 6:00 p.m., after work hours,
on January 9, 2009, Jetnil went reef fishing. Reef fishing,
which involves throwing nets to catch fish in coral reefs, is
a common cultural practice of the Marshallese. The
Marshallese typically eat the fish they catch and often share
their catch with friends and family. Though Jetnil apparently
was known as a good reef fisher, he slipped and cut his right
foot on the coral while fishing. Despite the cut between his
fourth and fifth toes, Jetnil continued to work on Gagan
Island through January 10, 2009.
After returning from Gagan Island, Jetnil sought
treatment for his cut at the Third Island medical clinic. Third
Island only has a one-room clinic run by the RMI
government and staffed with a nurse. Around January 20 or
21, 2009, Jetnil traveled to Roi Namur and informed a
coworker that he was taking the rest of the week off. On
January 26, 2009, Jetnil sought treatment at the Roi Namur
Dispensary, which provides basic medical care. Jetnil’s
right foot was wrapped, soiled, and foul smelling. After
visiting the Roi Namur nurse, Jetnil was flown by helicopter
to Kwajalein Hospital, where he was evaluated for the first
time by a doctor. The doctor found that Jetnil’s fourth and
fifth toes were black and housed maggots. The doctor
conducted various tests on Jetnil’s right leg and diagnosed
him with a severe infection and possible gas gangrene. On
January 27, 2009, another doctor amputated Jetnil’s right leg
below his knee. About a month after the surgery, Jetnil was
released from the hospital.
Jetnil first notified Chugach about the injury and
subsequent amputation on February 2, 2009. On that same
CHUGACH MGMT. SERVS. V. JETNIL 7
day, Jetnil’s supervisors, Robbie Amador and Floyd Corder,
visited Jetnil at the hospital and filled out an initial
notification form. On February 3, 2009, Jetnil filed his first
report of injury with the DOL’s Office of Workers’
Compensation Program (“OWCP”). Jetnil described the
injury and reported the injury as compensable under the
DBA. On February 20, 2009, Chugach filed a “Notice of
Controversion of Right to Compensation” with the OWCP,
stating that it “respectfully controvert[s] [Jetnil’s] claim [for
disability benefits,] as the injury leading to claimant’s
present status did not arise within the scope and the course
of his employment,” so “the claim is not compensable under
the DBA.”
The case was ultimately referred to an ALJ. The parties
conducted some discovery before agreeing to submit the
matter for a decision on the record. The record contained
stipulated testimony of Jetnil, stipulated testimony of Jetnil’s
coworkers and supervisors, Jetnil’s medical records, Jetnil’s
wage report, and Jetnil’s time sheets. The ALJ issued a
decision and order on July 1, 2014, making multiple factual
determinations and awarding medical benefits and
compensation for total temporary disability benefits to
Jetnil, pursuant to the DBA, beginning from January 15,
2009.
Though Jetnil’s injury was not directly caused by his
employment, the ALJ, relying on O’Leary v. Brown-Pacific-
Maxon, Inc., 340 U.S. 504 (1951), determined that the
unconventional conditions of Jetnil’s employment “placed
him in an environment with unique risks, which created a
zone of special danger that led to his amputation.”
Petitioners had argued that Jetnil was not subject to the zone
of special danger doctrine because that doctrine applies only
to employees sent to work abroad, and Jetnil was a citizen of
8 CHUGACH MGMT. SERVS. V. JETNIL
RMI, where he was injured. The ALJ rejected this argument
and concluded that “[t]he zone of special danger is not
negated because the place of employment is not an overseas
locale.” The ALJ then concluded that Jetnil’s disability was
“temporary” because Jetnil might receive a prosthetic leg
and thereby improve his ability to care for himself, and
“total” because Jetnil could not return to his usual and
customary employment and Petitioners failed to argue that
Jetnil could do other suitable alternative employment. The
ALJ therefore ordered Petitioners to (1) pay or reimburse
Jetnil for all reasonable and necessary medical expenses,
including ongoing treatment; (2) pay “temporary total
disability benefits from January 15, 2009, to date based on
an average weekly wage of $439.05”; and (3) pay Jetnil’s
reasonable attorney’s fees.
Petitioners filed a notice of appeal with the BRB on July
17, 2014. Petitioners again argued that the ALJ erred in
applying the zone of special danger doctrine. The Director
of OWCP (“Director”) filed a response brief in support of
Jetnil and recommended that the BRB affirm the ALJ. The
BRB affirmed the ALJ on July 21, 2015. The BRB rejected
Petitioners’ argument that “as a matter of law . . . the zone of
special danger doctrine may never be applied in cases
involving local nationals who are injured while working in
their home countries.” The BRB reasoned that the text of
the DBA does not distinguish between local and foreign
nationals and that the Supreme Court and Congress have not
excluded foreign nationals even though both institutions had
the opportunity. Instead, the BRB concluded that “the
application of the zone of special danger doctrine” depends
on a factual determination; the doctrine “may or may not be
applicable to a local national working for a DBA employer
in his home country, depending on the specific
circumstances presented by the individual case.” In
CHUGACH MGMT. SERVS. V. JETNIL 9
applying the zone of special danger doctrine to Jetnil, the
BRB concluded that substantial evidence supported the
ALJ’s conclusion that Jetnil’s injury arose out of the
reasonable and foreseeable risks associated with the
obligations and conditions of Jetnil’s employment. For that
reason, Jetnil was entitled to the awarded benefits.
Petitioners timely petitioned for review on September
16, 2015. 33 U.S.C. § 921(c). We have jurisdiction over the
petition, id., and we deny it. 1
STANDARD OF REVIEW
We review BRB decisions for “errors of law and for
adherence to the substantial evidence standard.” Kalama
Servs., Inc. v. Dir., Office of Workers’ Comp. Programs,
354 F.3d 1085, 1090 (9th Cir. 2004). The BRB in turn
reviews the ALJ’s decision for substantial evidence and
“may not substitute its views for those of the [ALJ] or
engage in a de novo review of the evidence.” Id. (internal
quotation marks omitted). The panel and BRB must
1
We grant Chugach’s and the Director’s motions to take judicial
notice of the fact that Jetnil died on May 10, 2015. But contrary to the
Director’s arguments, Jetnil’s death does not moot this case. Although
Chugach cannot recoup the payments already made, see Stevedoring
Servs. of Am. Inc. v. Eggert, 953 F.2d 552, 555–57 (9th Cir. 1992), and
is not liable for additional wage compensation, Chugach argued in its
appellate briefing and at oral argument that it remains liable to Jetnil for
$60,000 pursuant to 33 U.S.C. § 908(c)(15), and that Jetnil’s survivors
are entitled to recover that money even after Jetnil’s death, pursuant to
33 U.S.C. § 908(d)(3). Jetnil’s counsel stated at oral argument that
Jetnil’s family intends to pursue this money if we resolve this case in
Jetnil’s favor. The Director and Jetnil disagree whether such a claim
would be timely, but that disagreement does not render this case moot,
as Jetnil’s survivors still have a statutory basis to assert their claim, even
if it ultimately proves to be time-barred.
10 CHUGACH MGMT. SERVS. V. JETNIL
therefore accept the ALJ’s factual findings unless the factual
findings are “contrary to the law, irrational, or unsupported
by substantial evidence.” Id. (internal quotation marks
omitted). We must “respect the [BRB’s] interpretation of
the statute where that interpretation is reasonable and reflects
the policy underlying the statute.” Keenan v. Dir. for
Benefits Review Bd., 392 F.3d 1041, 1044 (9th Cir. 2004)
(internal quotation marks omitted); see also Battelle Mem’l
Inst. v. DiCecca, 792 F.3d 214, 221 (1st Cir. 2015)
(explaining that the BRB’s rational application of the zone
of special danger test “is treated as far as possible as a
finding of fact, for which a reviewing court considers only
whether the agency had a substantial basis in the record”
(citing O’Leary, 340 U.S. at 507–09)).
DISCUSSION
A. Legal Framework of the DBA
Congress enacted the DBA to provide workers’
compensation coverage for civilian employees working
outside the continental United States on U.S. military bases
or under a contract with the U.S. government. 42 U.S.C.
§ 1651(a) (stating that “the provisions of the [LHWCA] . . .
shall apply in respect to the injury or death of any employee
engaged in any employment” described in §§ 1651(a)(1)–
(6)); Kalama, 354 F.3d at 1090 (“Congress passed the
Defense Base Act in order to provide workers’ compensation
coverage for certain classes of employees working outside
the continental United States.”). The LHWCA provides
compensation for injury or death “arising out of and in the
course of employment.” 33 U.S.C. § 902(2). In O’Leary,
the Supreme Court created the zone of special danger test to
determine whether an injury arises out of and in the course
of employment. 340 U.S. at 506–07. The Court explained
that a causal relationship between the nature of the
CHUGACH MGMT. SERVS. V. JETNIL 11
claimant’s employment and his injury is not necessary;
instead, “[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.” Id. (internal quotation marks
omitted).
Under the zone of special danger doctrine, employees
may be compensated for “injuries resulting from reasonable
and foreseeable recreational activities in isolated or
dangerous locales.” Kalama, 354 F.3d at 1091. There are
limits to the zone of special danger doctrine. Some of an
employee’s activities “might go 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 injuries suffered by him arose out of and in the course
of his employment.” O’Leary, 340 U.S. at 507 (internal
quotation marks omitted). In other words, “injuries resulting
from recreational activities that are neither reasonable nor
foreseeable generally fall outside the ‘zone of special
danger.’” Kalama, 354 F.3d at 1091–92.
B. The Zone of Special Danger Doctrine and Local
Nationals
The major legal issue on appeal, which is a question of
first impression, is whether the zone of special danger
doctrine can apply to local nationals, such as Jetnil, who are
employed on a DBA-covered contract in their home country.
Petitioners argue that it cannot. According to Petitioners, the
ALJ and BRB committed a legal error by applying the zone
of special danger doctrine to Jetnil, a citizen of RMI who
was injured while working in RMI. Jetnil and the Director
disagree and argue that the ALJ and BRB correctly
concluded that the zone of special danger doctrine may,
under certain circumstances, cover local nationals working
12 CHUGACH MGMT. SERVS. V. JETNIL
in their home countries. Jetnil and the Director have the
better of the two arguments.
First, the plain language of the DBA does not distinguish
between employees sent abroad from their home country and
local nationals. Title 42 U.S.C. § 1651(a) states that the
LHWCA “shall apply in respect to the injury or death of any
employee engaged in any employment” identified in
§§ 1651(a)(1)–(6) (emphasis added). And the DBA does not
require working in a foreign nation, only that the
employment be at a military base acquired after 1940 from
any foreign government, 42 U.S.C. § 1651(a)(1), or “outside
the continental United States,” id. §§ 1651(a)(2)–(6).
Second, Congress implicitly endorsed application of the
zone of special danger doctrine to local nationals. The
Supreme Court first articulated the zone of special danger
doctrine in O’Leary in 1951. In 1953, Congress acted to
exclude local nationals from DBA coverage. Pub. L. 83-
100, 67 Stat. 135 (June 30, 1953). But in 1958, Congress
reinstated DBA coverage for local nationals. Pub. L. 85-
608, 72 Stat. 538 (August 8, 1958). Under traditional
statutory interpretation principles, “Congress is presumed to
be aware of an administrative or judicial interpretation of a
statute and to adopt that interpretation when it re-enacts a
statute without change.” Lorillard v. Pons, 434 U.S. 575,
580 (1978). Since Congress expanded DBA coverage in
1958 to local nationals, after the Supreme Court had
announced the zone of special danger doctrine, we presume
that Congress intended to permit application of the zone of
special danger doctrine to local nationals. See id.
Third, O’Leary and its progeny almost without exception
do not distinguish between employees sent abroad from their
home country and local nationals when determining whether
an injury arose out of the conditions of one’s employment.
CHUGACH MGMT. SERVS. V. JETNIL 13
O’Leary never mentions the domicile of the claimant in that
case. 340 U.S. at 504–10. Neither does Kalama, 354 F.3d
at 1085–94, Ford Aerospace & Commc’ns Corp. v. Boling,
684 F.2d 640, 640–43 (9th Cir. 1982), or Self v. Hanson,
305 F.2d 699, 699–703 (9th Cir. 1962). Petitioners quote
from several cases in support of their argument that the zone
of special danger doctrine was extended “because of the
subjective predicaments of the typical overseas DBA
employee.” But Petitioners are unable to identify a single
Ninth Circuit or Supreme Court case that has held that the
DBA applies only to employees sent from their home
country to work abroad. 2
Fourth, almost all of the justifications for the zone of
special danger doctrine apply with equal force to local
nationals working in remote areas as to employees working
away from their home country. The zone of special danger
doctrine is justified in part because the employment takes the
2
Language in two out-of-circuit cases may seem to support
Petitioners’ claim. For example, the Fifth and First circuits have
suggested that the zone of special danger doctrine applies only to
employees who were sent abroad from the United States. In O’Keeffe v.
Pan Am. World Airways, Inc., 338 F.2d 319, 325 (5th Cir. 1964), the
court stated in passing that a certain island lacked “most of the social and
recreational facilities usually available to American employees.”
Similarly, the First Circuit recently stated, in explaining the scope of the
zone of special danger doctrine, that the risks must simply be foreseeable
and “occasioned by or associated with the employment abroad.” Battelle
Mem’l Inst., 792 F.3d at 220. The Battelle court also explained that the
doctrine “covers risks peculiar to the foreign location or risks of greater
magnitude than those encountered domestically.” Id. But Battelle did
not squarely address the issue in the case at bar: whether a local national
can benefit from the zone of special danger doctrine. Thus, even out-of-
circuit cases that appear to address the claimant’s status as an employee
working abroad do so in dicta and without explicitly identifying the
domicile of the claimant.
14 CHUGACH MGMT. SERVS. V. JETNIL
employees to remote, uninhabited, or generally inconvenient
places. See, e.g., Kalama, 354 F.3d at 1092 (describing
Johnston Atoll as a “small, remote island . . . which offers
residents few recreational opportunities”); Ford, 684 F.2d at
642 (describing the need to live in barracks because of the
remote location of Thule, Greenland); O’Keeffe, 338 F.2d at
322 (explaining that “[e]mployees working under the
Defense Bases Act, far away from their families and friends,
in remote places where there are severely limited
recreational and social activities, are in different
circumstances from employees working at home”); Self,
305 F.2d at 703 (noting “Guam’s remoteness from other
civilization - particularly Sausalito (or Palo Alto)”). As this
case demonstrates, the conditions of employment for local
nationals may very well subject them to remote, uninhabited,
and inconvenient locales, even in their home country.
Fifth, concluding that the zone of special danger doctrine
does not apply to local nationals injured in their home
country would lead to irrational results and contradictory
case law. Multiple DBA cases involve individuals injured
on American soil, though not the continental United States.
For example, O’Leary, 340 U.S. at 505, and Self, 305 F.2d
at 700, involved individuals injured in the U.S. territory of
Guam. If these individuals were domiciled in the United
States, then under Petitioners’ proposed rule, they could not
be covered by the zone of special danger doctrine.
Petitioners raise several objections. Most notably,
Petitioners argue that applying the zone of special danger
doctrine to local nationals will result “in the imposition of a
strict premise liability standard, resulting in twenty-four
hour-a-day, seven-day-a-week coverage.” Petitioners
identify a series of absurd results, including that local
nationals “sitting in their living rooms watching television,
CHUGACH MGMT. SERVS. V. JETNIL 15
walking to a religious function, or gathered in a square for
protest, would be found to be engaged in an activity within
the course of employment.”
But as the Director points out, the application of the zone
of special danger doctrine will necessarily differ for local
nationals employed in their home country than for an
employee sent from his or her home country to work abroad.
The Director explains that “if Jetnil had been hurt fishing on
a day off on his home island, rather than between shifts
during a four-day overnight work assignment on an
uninhabited island with restricted access, [Petitioners] would
have a strong argument against application of the zone of
special danger doctrine.” Every application of the zone of
special danger doctrine is necessarily unique to the factual
circumstances of that case. See Kalama, 354 F.3d at 1091–
92 (contrasting cases that have applied the zone of special
danger doctrine with cases that have not applied the zone of
special danger doctrine based on different factual
circumstances). Applying the zone of special danger
doctrine to Jetnil in this case simply does not promise the
absurd results Petitioners describe.
Petitioners also argue that no court has applied the zone
of special danger doctrine to local nationals. As near as we
can tell, this statement is true. But no court has denied
benefits to local nationals by holding that the zone of special
danger doctrine cannot, by law, apply to them. This issue
simply has not been decided by any court.
Petitioners also argue that “[a]ll previous applications of
the zone of special danger doctrine were made with express
consideration toward the ‘overseas’ nature of the employee’s
employment.” Petitioners’ statement is simply untrue. As
described above, all courts applying the zone of special
danger doctrine justify it in part because the employment
16 CHUGACH MGMT. SERVS. V. JETNIL
takes the employees to remote, uninhabited, or generally
inconvenient places. These concerns over the remote and
inconvenient nature of a locale can just as easily apply to
local nationals employed in their homeland as it can to
employees sent abroad from their home country.
Finally, Petitioners argue that extending the zone of
special danger doctrine to local nationals would “run afoul
of the overseas’ workers’ compensation scheme conceived
by Congress through the DBA, [Federal Employees
Compensation Act (“FECA”)], and [War Hazards
Compensation Act (“WHCA”)].” In particular, Petitioners
point out that the WHCA, which provides compensation for
civilian employees injured or killed by war-risk hazards,
specifically excludes individuals “whose residence is at or in
the vicinity of the place of his employment.” 42 U.S.C.
§ 1701(d). Petitioners argue that the extension of the zone
of special danger doctrine to local nationals would “render
meaningless” 42 U.S.C. § 1701(d). We disagree. The
WHCA is a wholly different statute that provides
compensation benefits when injury or death results from the
hostile act of an enemy force. 42 U.S.C. § 1701(a).
Moreover, the fact that Congress arguably excluded local
nationals from the WHCA but did not include that same
exclusion in the DBA suggests that Congress intended to
permit DBA coverage for local nationals. See, e.g., Russello
v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” (alteration in original)
(internal quotation marks omitted)).
For all of these reasons, we hold that the zone of special
danger doctrine can apply to local nationals working in their
CHUGACH MGMT. SERVS. V. JETNIL 17
home countries. The ALJ and BRB did not commit legal
error by applying the zone of special danger doctrine to
Jetnil. We therefore proceed to analyze whether substantial
evidence supports the ALJ and BRB’s decision that Jetnil is
entitled to disability benefits because his injury arose out of
the zone of special danger associated with his employment.
C. Substantial Evidence
We review BRB decisions for “adherence to the
substantial evidence standard.” Kalama, 354 F.3d at 1090.
The BRB in turn reviews the ALJ’s decision for substantial
evidence and “may not substitute its views for those of the
[ALJ] or engage in a de novo review of the evidence.” Id.
(internal quotation marks omitted). The BRB must accept
the ALJ’s factual findings unless the factual findings are
“contrary to the law, irrational, or unsupported by substantial
evidence.” Id. (internal quotation marks omitted). We
conclude that substantial evidence supports the ALJ and
BRB’s determination that Jetnil’s injury was compensable
because it arose out of the conditions of his employment and
occurred while he was engaged in a reasonable and
foreseeable activity.
The ALJ’s factual determinations are largely undisputed.
Jetnil would not have been on Gagan Island but for his
employment. Gagan Island is remote, accessible only by
boat, and accessible only with the permission of Chugach.
Jetnil traveled to Gagan Island on a boat secured by
Chugach, and Chugach provided housing and food for Jetnil
during his four-day stay on the island. Moreover, Jetnil was
injured while engaging in the traditional Marshallese activity
of reef fishing. Given that the activity is common in RMI, it
was foreseeable and reasonable that Jetnil would reef fish
during his time off. See id. at 1092 (reasoning that since
Johnston Atoll is a small, remote island with few recreational
18 CHUGACH MGMT. SERVS. V. JETNIL
activities, “horseplay of the type that occurred here is a
foreseeable incident of one’s employment on the atoll”).
The circumstances under which other courts have
applied the zone of special danger doctrine are similar to the
circumstances of this case. In O’Leary, the claimant was
working in Guam when he jumped into a dangerous river
channel that abutted his employer’s recreational center in an
attempt to rescue a man stuck in the channel. 340 U.S. at
505. The claimant drowned, and his mother filed a claim for
death benefits. Id. The Supreme Court applied the zone of
special danger doctrine, concluding that his “reasonable
rescue attempt . . . may be one of the risks of the
employment, an incident of the service, foreseeable, if not
foreseen, and so covered by the [LHWCA].” Id. at 507
(internal quotation marks omitted). Many other courts have
concluded that “injuries resulting from reasonable and
foreseeable recreational activities in isolated or dangerous
locales arise out of a ‘zone of special danger’ and are
therefore compensable under the LHWCA.” Kalama,
354 F.3d at 1091; see also O’Keeffe v. Smith, Hinchman &
Grylls Assocs., Inc., 380 U.S. 359, 363–64 (1965) (applying
the zone of special danger doctrine to a petitioner who
drowned in a weekend boating accident outside of his work
site in South Korea); Takara v. Hanson, 369 F.2d 392 (9th
Cir. 1966) (applying the zone of special danger doctrine to a
petitioner who was struck by a truck while hitchhiking after
dinner at a local restaurant in Guam); Pan Am. World
Airways, Inc. v. O’Hearne, 335 F.2d 70, 70–71 (4th Cir.
1964) (applying the zone of special danger doctrine to
employee who died in an after-hours jeep accident in the
Bahamas); Self, 305 F.2d at 702–03 (applying the zone of
special danger doctrine to petitioner who was injured during
a late-night rendezvous with her supervisor in a parked car
that was hit by another car in Guam). The Kalama court
CHUGACH MGMT. SERVS. V. JETNIL 19
helpfully contrasted these cases with cases in which the court
declined to apply the zone of special danger doctrine.
Kalama, 354 F.3d at 1091–92; see, e.g., Kirkland v. Air Am.,
Inc., 23 BRBS 348, 349, 1990 WL 284045 at *2 (1990)
(refusing to apply the zone of special danger doctrine
because “claimant’s participation 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”); Gillespie v. Gen. Elec. Co., 21 BRBS 56,
1988 WL 232796, at *1–*3 (1988) (reversing ALJ’s
decision that petitioner’s death by autoerotic asphyxiation
arose out of the zone of special danger because there was no
reasonable connection between the conditions of petitioner’s
employment and his death). The situation we are presented
with in this case clearly resembles cases like O’Leary,
Kalama, Self, and Takara, not cases like Kirkland and
Gillespie.
Given the level of deference we must apply to the BRB
and the ALJ, we cannot conclude that the BRB and ALJ
decision was “contrary to the law, irrational, or unsupported
by substantial evidence.” Kalama, 354 F.3d at 1090. We
hold that substantial evidence supports the ALJ and BRB
decision and the award of temporary total disability benefits.
CONCLUSION
The zone of special danger doctrine may apply to local
nationals. Here, substantial evidence supports the ALJ and
BRB’s conclusion that Jetnil’s injury occurred within a zone
of special danger and is compensable under the DBA. We
therefore DENY the petition for review.