Truczinskas v. Director, Office of Workers' Compensation Programs

United States Court of Appeals
For the First Circuit
No. 11-2503
TERRI TRUCZINSKAS,
Petitioner,
v.
DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR, G.D. ARABIA LTD.,
and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA/AIG,
Respondents.
PETITION FOR REVIEW OF AN ORDER OF
THE BENEFITS REVIEW BOARD
Before
Lynch, Chief Judge,
Boudin, Circuit Judge,
and McConnell, Jr.,* District Judge.
Joshua T. Gillelan II, Longshore Claimants Nat'l Law Center,
with whom Donald E. Wallace and MacDonald & Wallace were on brief
for petitioner.
Roger A. Levy with whom James Ralph and Laughlin, Falbo, Levy
& Moresi, LLP were on brief for respondents G.D. Arabia Ltd., and
Insurance Company of the State of Pennsylvania/AIG.
Matthew W. Boyle, United States Department of Labor, Office of
the Solicitor, for respondent Director, Office of Workers'
Compensation Programs, United States Department of Labor.
November 20, 2012
*
Of the District of Rhode Island, sitting by designation.
BOUDIN, Circuit Judge. Michael Truczinskas, age 46, was
employed until his death by GD Arabia, Ltd. ("GD") as a military
trainer in Tabuk, Saudi Arabia. On the morning of December 5,
2008, according to the testimony of a co-worker, Truczinskas was
found inside his villa hanging from a cross-beam with a noose
around his neck. Shortly thereafter, a doctor at a nearby hospital
pronounced Truczinskas dead and identified "asphyxiation by
hanging" as the cause of death.
Five months later, Michael Truczinskas' widow, Terri
Truczinskas, filed a claim for death benefits on behalf of herself
and the couple's three children under the Defense Base Act ("DBA"),
42 U.S.C. §§ 1651-1654 (2006). Pursuant to agency policy and as
authorized by statute, the matter was transferred to the district
director's office based in Boston, the location closest to Terri
Truczinskas' Connecticut home, and adjudicated there.1 An
administrative law judge ("ALJ") denied Terri Truczinskas' claim on
November 18, 2010. A three-judge panel of the Department of
Labor's Benefits Review Board affirmed the ALJ's order on December
13, 2011, with one member of the panel dissenting.
1
U.S. Dep't of Labor, Div. of Longshore & Harbor Workers'
Comp., Industry Notice 122 (Sept. 20, 2007) (transfer of new DBA
claims to district office within whose jurisdiction the claimant
resides). The district directors have the powers originally
assigned to "deputy commissioners" under the relevant statutes
discussed below. 20 C.F.R. § 701.301(a)(7) (2012).
-2-
Terri Truczinskas now seeks direct review in this court,
raising an issue of jurisdiction on which the circuit courts are
divided. Terri Truczinskas, GD (and its insurance carrier) and the
Department of Labor are all satisfied that we have jurisdiction,
but as the parties cannot confer such jurisdiction where it does
not exist, we must still address the issue. García-Velázquez v.
Frito Lay Snacks Caribbean, 358 F.3d 6, 8 (1st Cir. 2004). It
turns out to be a close call even though the sensible result,
consistent with Congress' policy, clearly supports our
jurisdiction.
When Congress adopted the DBA in 1941, it aimed to
provide workers' compensation covering, among others, individuals
employed outside the continental United States under contracts with
or approved by the federal government. DBA § 1(a)(4)-(5), 42
U.S.C. § 1651(a)(4)-(5). Drawing on the federal model in the
already established Longshoremen's and Harbor Workers' Compensation
Act (the "Longshore Act," or "LHWCA"), the DBA adopted the earlier
act by cross-reference, saying that "[e]xcept as herein modified,
the provisions of the [Longshore Act], as amended, shall apply in
respect to the injury or death of any employee" within the scope of
the DBA. DBA § 1(a), 42 U.S.C. § 1651(a).
In 1941, compensation decisions under the Longshore Act
were made by deputy commissioners whose decisions were then
initially reviewed by the district court located in the district
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where the injury or death occurred. 33 U.S.C. § 921(b) (1940).
But because the harms under the DBA would in many cases occur
outside the United States where no district court had jurisdiction,
the DBA provided that judicial review of DBA awards should commence
"in the United States district court of the judicial district
wherein is located the office of the deputy commissioner whose
compensation order is involved," DBA § 3(b), 42 U.S.C. § 1653(b).
The "as amended" language in section 1 of the DBA has
been regularly read to mean that the DBA would incorporate "not
only the version of the [Longshore Act] in force at the time the
DBA was enacted, but all subsequent LHWCA amendments as well."
E.g., AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 1113 n.3 (5th
Cir.), cert. denied, 502 U.S. 906 (1991). Thus, presumptively a
change Congress thinks suitable for the Longshore Act also applies
to the DBA, unless otherwise provided in the new Longshore Act
amendment. And Congress included no such provision precluding
application to the DBA when, in 1972, it amended the Longshore Act
to modernize the ordinary scheme for awarding compensation.
Under the 1972 amendments, the district director is
empowered to refer cases to an administrative law judge, who then
holds a formal hearing and makes the initial decision, subject to
further administrative review by a Benefits Review Board.2 The
2
LHWCA § 19(c)-(d), 33 U.S.C. § 919(c)-(d) (hearings); id. §
921(b), 33 U.S.C. § 921(b) (Benefits Review Board); see also 20
C.F.R. § 702.301 (formal hearing on "genuine dispute of fact or law
-4-
Board's decision, in turn, is reviewed not in the district court
but instead in the circuit court where the injury occurred.
Longshoremen's and Harbor Workers' Compensation Act Amendments of
1972, Pub. L. No. 92-576, §§ 14-15, 86 Stat. 1251, 1261 (codified
as amended at 33 U.S.C. §§ 919(d), 921(b)-(c)).
This created a tension because the Longshore Act now
embodied the increasingly common scheme for judicial review of
administrative agency action and the Longshore Act changes
presumptively carry over to the DBA, but Congress seemingly
overlooked and did not repeal the earlier DBA provision for
judicial review of DBA compensation decisions in the local district
court. In resolving this tension, the circuit courts are now
almost evenly split on whether initial judicial review of DBA
awards should be in the district or the circuit court.3
This circuit, e.g., Air America, Inc. v. Director, Office
of Workers' Compensation Programs, 597 F.2d 773, 775 (1st Cir.
1979), and the Supreme Court, Director, Office of Workers'
which cannot be so disposed informally"); Roberts v. Sea-Land
Servs., Inc., 132 S. Ct. 1350, 1355 (2012) (describing process).
3
Four circuits endorse review by the district court, ITT Base
Servs. v. Hickson, 155 F.3d 1272, 1275 (11th Cir. 1998); Lee v.
Boeing Co., 123 F.3d 801, 805 (4th Cir. 1997); AIFA/CIGNA
Worldwide, 930 F.2d at 1116; Home Indem. Co. v. Stillwell, 597 F.2d
87, 89 (6th Cir.), cert. denied, 444 U.S. 869 (1979), and three by
the court of appeals, Serv. Emps. Int'l, Inc. v. Dir., Office of
Workers' Comp. Programs, 595 F.3d 447, 452-55 (2d Cir. 2010);
Pearce v. Dir., Office of Workers' Comp. Programs (Pearce II), 647
F.2d 716, 720 (7th Cir. 1981); Pearce v. Dir., Office of Workers'
Comp. Programs (Pearce I), 603 F.2d 763, 766-71 (9th Cir. 1979).
-5-
Compensation Programs v. Rasmussen, 440 U.S. 29, 35 (1979), have
both assumed jurisdiction over appeals of DBA compensation awards
after 1972 that never passed through the district court. But in
neither these or other like instances did either court pass from
assumption to express consideration of jurisdiction, so strictly
speaking we are not bound to find jurisdiction in this case. Ariz.
Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1448 (2011).
Nevertheless, the Defense Base Act can be legitimately
read to confer such jurisdiction upon us, and this reading accords
with the overall congressional policy reflected in the 1972
Longshore Act amendments. Congress likely gave no thought at all
to the wrinkle that concerns us; but, where statutory language
permits a given reading and Congress' policy will be fostered by
it,4 we think that reading should prevail--even if, as here, that
statutory language would also permit a contrary reading at odds
with Congress' statutory policy.
The circuits that insist on district court jurisdiction
have done so because they deem this compelled by the original DBA
proviso that the Longshore Act, including any subsequent
4
The "main reason" for the 1972 Longshore Act amendments was
"to obviate the increased litigation costs and the unwarranted
expenditure of court time under the old system." Ramirez v. Toko
Kaiun K.K., 385 F. Supp. 644, 649 (N.D. Cal. 1974); see also Day v.
James Marine, Inc., 518 F.3d 411, 417 (6th Cir. 2008)
("streamlining of the administrative process in 1972"); S. Rep. No.
92-1125, at 4 (1972) ("crowding of court calendars" under pre-1972
Longshore Act).
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amendments, applies "[e]xcept as herein modified." Because the DBA
did adopt a separate provision for district court review where the
compensation decision was made, these circuits see the just quoted
"except" language as freezing in amber, and insulating from the
1972 Longshore Act amendments, the entire subject of judicial
review of Review Board compensation decisions in DBA cases. See,
e.g., Lee v. Boeing Co., 123 F.3d 801, 805 (4th Cir. 1997).
By contrast, the Second Circuit, favoring jurisdiction in
the circuit courts, offers a plausible alternative reading. See
Serv. Emps. Int'l, Inc. v. Dir., Office of Workers' Comp. Programs,
595 F.3d 447, 452-55 (2d Cir. 2010). Judge Miner pointed out that
when Congress initially adopted the Longshore Act scheme for DBA
awards in 1941, the statute already provided for review of a deputy
commissioner's decisions by the district court; section 3(b) of the
DBA did no more than identify for the DBA awards a different
venue--the locus of the award (for DBA awards) rather than the
locus of the injury (for Longshore Act awards). Id. at 454.
So read, the only thing frozen in amber by the "[e]xcept
as herein modified" qualification is the specification of the
reviewing court's location; and when Congress decided in 1972 that
the proper court initially to review compensation orders should be
the circuit rather than the district court, the modification is
fully respected by providing that the location of the reviewing
court (now circuit rather than district) shall be the one with
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authority where the initial compensation order was filed, as it was
here.
This approach maintains, so far as possible, the
congruence between the two schemes otherwise conjoined in 1941.
And Congress' overall policy intentions can hardly be open to
doubt: because a new layer of administrative review is now
provided for DBA as well as Longshore Act award decisions and
because judicial review will in both cases be on the administrative
record, district court review--whether of DBA or Longshore
compensation rulings--provides no benefit but merely adds expense
and delay in getting around to a circuit court decision. Lee, 123
F.3d at 808 (Hall, J., dissenting).
The obvious efficiency of bypassing the district court
likely explains why in this case the claimant, the company and the
Department of Labor, while not all agreeing on the merits, all
favor direct review jurisdiction in the circuit court. It explains
too why this circuit and the Supreme Court found it easy to assume
such direct review jurisdiction. In sum, this is a permissible
reading as well as the reading that Congress would have wished us
to give a complex set of provisions where loose ends are almost
unavoidable. If the case had gone to the district court in Boston,
our decision here on the merits would be exactly the same but
arrive much later.
-8-
Turning then to the merits, the Longshore Act requires
covered employers to compensate employees and their dependents for
any "accidental injury or death arising out of and in the course of
employment," as well as any "injury caused by the willful act of a
third person directed against an employee because of his
employment," LHWCA § 2(2), 33 U.S.C. § 902(2); LHWCA § 9(b)-(d), 33
U.S.C. § 909(b)-(d); see also O'Keeffe v. Smith, Hinchman & Grylls
Assocs., Inc., 380 U.S. 359, 360-361 (1965) (application to DBA
case).
Section 3(c) of the Longshore Act (which likewise applies
to DBA cases, e.g., Eysselinck v. Dir., Office of Workers' Comp.
Programs, 392 F. App'x 262, 264 (5th Cir. 2010)), provides that
"[n]o compensation shall be payable if the injury was occasioned
solely by the intoxication of the employee or by the willful
intention of the employee to injure or kill himself or another," 33
U.S.C. § 903(c), although a rebuttable presumption exists that the
injury was not due to intoxication or suicide, LHWCA § 20(c)-(d),
33 U.S.C. § 920(c)-(d). Finally, it is enough to connect
employment with a suffered harm if the harm arose out of a "zone of
special danger" created by "the obligations or conditions of
employment."5
5
O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 507
(1951) (internal quotation marks omitted). This doctrine too
applies to DBA claims, e.g., Gondeck v. Pan Am. World Airways,
Inc., 382 U.S. 25, 27-28 (1965); O'Keeffe, 380 U.S. at 362-64. Its
precise scope, developed in other cases, remains to be considered
-9-
After filing her claim, Terri Truczinskas established a
"prima facie case" by making two required but relatively easy
showings: (1) that Michael Truczinskas had sustained "physical
harm" and (2) that "conditions existed at work which could have
caused the harm." Bath Iron Works Corp. v. Preston, 380 F.3d 597,
605 (1st Cir. 2004) (citation omitted). When the ALJ came to
consider Terri Truczinskas' claim for compensation, she easily
found that the prima facie case had been established.
Michael Truczinskas was stationed in the northwest region
of Saudi Arabia, a country in which terrorists and insurgent groups
have carried out attacks against westerners; he lived inside a
guarded GD compound; and he never ventured into the city of Tabuk
alone because he considered it a "fairly dangerous place to be."
Truczinskas' co-workers shared similar safety concerns. This did
not require, nor did the ALJ find, evidence that any such dangers
had caused Truczinskas' death; it was enough that the dangers
existed.
The claimant then enjoyed the benefit of several
statutory presumptions, two of which are relevant here:
-a presumption "[t]hat the claim comes within
the provisions of [the Act]," LHWCA § 20(a),
33 U.S.C. § 920(a) (the "section 20(a)
presumption"), and
-a presumption, already noted, "[t]hat the
injury was not occasioned by the willful
below.
-10-
intention of the injured employee to injure or
kill himself or another," LHWCA § 20(d), 33
U.S.C. § 920(d) (the "section 20(d)
presumption").
It was then up to GD to identify "substantial evidence"
to rebut the statutory presumption of coverage and, to the extent
that the employer relied on suicide as a non-covered cause, the
statutory presumption against suicide. Bath Iron Works Corp. v.
Fields, 599 F.3d 47, 53 (1st Cir. 2010); see also LHWCA § 920, 33
U.S.C. § 920. In this context, "substantial evidence" means "more
than a scintilla," but it "certainly does not approach the
preponderance-of-the-evidence standard normally found in civil
cases." Bath Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51,
57 (1st Cir. 2003) (internal quotation marks omitted); accord
Sprague v. Dir., Office of Workers' Comp. Programs, 688 F.2d 862,
865-66 (1st Cir. 1982).
The ALJ found that the presumptions had been rebutted by
GD's proffer of evidence that could persuade a reasonable
factfinder that Michael Truczinskas had committed suicide. The
primary witness for GD was Dieter Wolf, a co-worker of Michael
Truczinskas who, like the decedent, lived inside the GD compound in
Tabuk. Wolf testified that the GD compound was gated and guarded
and that cameras surveilled the outside walls. He also testified
that a woman named Cindy Tan often stayed with Michael Truczkinskas
at the latter's villa inside the GD compound and that Michael
Truczinskas said that "he was in love with her."
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On the evening of December 4, 2008, Wolf hosted a
birthday party at his villa for one of his wife's friends; he
invited Michael Truczinskas and Cindy Tan to the party, and Michael
Truczinskas came over to Wolf's villa around 9 p.m. According to
Wolf, Michael Truczinskas "said hello to everybody right quick, and
left" after only 10 or 15 minutes; "he seemed like he was thinking
about something," but Wolf did not ask Michael Truczinskas what
preoccupied him.
According to Wolf's testimony, Cindy Tan came running to
Wolf's villa at 5:30 a.m. the next morning, beat on the door and
said that Michael Truczinskas had hanged himself. Wolf then ran
over to Michael Truczinskas' villa and found Truczinskas hanging
from a cross-beam with a nylon rope tied around his neck in the
shape of a noose, with a chair located nearby, but with his feet on
the floor. According to Wolf, Michael Truczinskas was wearing pink
or red toenail polish, women's makeup and a pair of blue
sweatpants.6
Wolf said that in trying to rescue Michael Truczinskas
from a hanging position, he cut himself but ultimately managed to
free Truczinskas from the noose. Wolf said that he then ran to get
his car while Cindy Tan attempted to perform CPR on Michael
6
GD also presented the testimony of Christopher Hansen, a GD
accountant who assisted in the "pack-out" of Michael Truczinskas'
villa following the occupant's death. Among the items that Hansen
said he found at the villa were three women's wigs and women's
clothes and underwear.
-12-
Truczinskas. Wolf, along with two nurses who had stayed at his
villa the previous night and a U.S. Army master sergeant, drove
Michael Truczinskas to a hospital six or eight minutes away. A
doctor at the hospital pronounced Truczinskas dead shortly
afterwards from asphyxiation.
At the presumption-rebuttal stage, the credibility of
the witnesses is not in issue, Fields, 599 F.3d at 55; Bath Iron
Works Corp. v. Dir., Office of Workers' Comp. Programs, 137 F.3d
673 (1st Cir. 1998), and the ALJ concluded that GD had rebutted the
section 20(a) presumption of coverage and the section 20(d)
presumption against suicide. She said that Wolf's testimony as to
how he found the employee is evidence which "a reasonable mind
might accept as sufficient to support a finding" that the
employee's death was the result of suicide. Cf. Fields, 599 F.3d
at 55 (employing the quoted language).
Having determined that GD's evidence was sufficiently
substantial to rebut the presumptions--which then vanish from the
case, Fields, 599 F.3d at 53--the ALJ moved to the third stage of
the burden-shifting process, at which the claimant bears the burden
of showing by a preponderance of the evidence on a clean slate that
the injury is covered under the compensation statute. Id. at 53;
United States v. Keller, 38 F.3d 16, 25 (1st Cir. 1994). Taking
into account Terri Truczinskas' alternative theories, the ALJ
concluded that she had failed to establish coverage.
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Terri Truczinskas appealed to the Review Board which, by
a 2-1 vote, upheld the denial of compensation. The Review Board
agreed that the section 20(a) presumption of coverage had been
refuted by GD's proffer; although it did not specifically say that
the section 20(d) presumption against suicide had been rebutted, it
agreed with the ALJ that the record could support the inference of
suicide. And once suicide surfaced as a plausible possible cause
of death (although not the only possible cause), the section 20(d)
presumption fell out of the case. Del Vecchio v. Bowers, 296 U.S.
280, 286 (1935).
However, the Review Board remained guarded about
expressing a definitive judgment on the actual cause of death,
concluding that Terri Truczinskas had failed to carry her burden of
establishing that her late husband's death resulted from a cause
that would be covered under the statute. Put differently, a
reasonable factfinder could conclude, based on the record, that
Michael Truczinskas' death could be explained by non-covered
causes, thus rebutting any presumption and leaving the burden on
the claimant, and that none of Terri Truczinskas' suggested
hypotheses that might entail coverage had any serious support in
the record.
On judicial review of the Benefits Review Board and ALJ
decisions, we agree that the denial of coverage was reasonable and
supported by the record, O'Keeffe, 380 U.S. at 361-62, and no error
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of law was committed. See Sprague, 688 F.2d at 865 ("it is
immaterial that the facts permit diverse inferences as long as
those drawn by the ALJ are supported by evidence"). Suicide is one
possible explanation for Michael Truczinskas' death, and one other
related possible explanation is not entirely speculative and
likewise would not give rise to coverage, namely, misadventure.7
The ALJ said that the cross-dressing activity and the alleged
affair with Cindy Tan may have generated "internal conflict,"
explaining suicide; this same evidence makes the misadventure
explanation colorable as well.
We start with the presumption against non-coverage.
Although Saudi Arabia may well pose dangers, Michael Truczinskas
was in his premises inside an elaborately guarded compound with no
indication of any intrusion by outsiders; the incident was reported
by his girlfriend; and he was found hanging by Wolf with death
later shown to be caused by asphyxiation. Nothing beyond pure
speculation inculpates his girlfriend, who according to Wolf's
testimony said that Michael Truczinskas had hanged himself. Nor
7
Gillespie v. Gen. Elec. Co., 21 Ben. Rev. Bd. Serv. (MB) 56,
1988 WL 232796, at *1-2 (1988), aff'd mem., 873 F.2d 1433 (1st Cir.
1989) (coverage denial where employee died "while attempting to
temporarily asphyxiate himself as part of an autoerotic activity").
Accidental strangulation in the course of pleasure-seeking
activities gone awry is not a rare event. See generally Lonergan
v. Reliance Std. Life Ins. Co., No. CA 96-11832-PBS, 1997 U.S.
Dist. LEXIS 24075, at *2-3 (D. Mass. May 29, 1997) (statistics on
autoerotic asphyxiation as cause of death).
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would murder by a jealous mistress itself constitute a covered
cause.8
At this point the two obvious substantial possibilities
were two non-covered causes: suicide and misadventure. This was
entirely sufficient to counter the presumption against coverage
and, as the suicide possibility was a realistic one (and no covered
alternative was obvious), to refute that presumption as well.
Although the "substantial evidence" test sounds demanding, it
merely requires evidence that "could satisfy a reasonable
factfinder" that the claimant's injury was attributable to a non-
covered cause. Fields, 599 F.3d at 55; see also Bath Iron Works
Corp. v. Dir., Office of Workers' Comp. Programs, 137 F.3d at 675("ALJ's choice of inferences is to be respected").
If there were any doubt, it is resolved by Del Vecchio v.
Bowers, 296 U.S. 280 (1935), reversing the D.C. Circuit in Bowers
v. Hoage, 76 F.2d 996 (D.C. Cir. 1935). Bowers, like Truczinskas,
was found dead in circumstances that could conceivably suggest
suicide ("killed by his own gun held in his own hand" while on his
employer's premises where his gun was kept), but without any
obvious motive for suicide ("many witnesses testified to his
cheerful disposition"). 76 F.2d at 997. The D.C. Circuit
8
Kirkland v. Dir., Office of Worker's Comp. Programs, No.
90-1267, 1991 U.S. App. LEXIS 2066, at *4-5 (D.C. Cir. Feb. 7,
1991) (per curiam) (DBA does not cover death of employee "murdered
by his jealous mistress") (citing Trans-Asia Eng'g Assocs., Inc. v.
Reichart, BRB No. 101-73 (Ben. Rev. Bd., June 25, 1973) (slip
op.)).
-16-
concluded that "the evidence is at least as consistent with
accident as with suicide," and accordingly, that the presumption of
coverage and the presumption against suicide in 33 U.S.C. § 903"must turn the scale" in the claimant's favor. Id.The Supreme Court reversed. It said that the fact that
the fatal shot appeared to be self-inflicted admitted two
alternatives: "either the decedent accidentally killed himself, or
he committed suicide." 296 U.S. at 285. Plainly deeming the
latter possibility sufficiently potent, the Court held that the
D.C. Circuit had mis-relied upon the statutory presumption against
suicide, the "only office" of which is "to control the result where
there is an entire lack of competent evidence." Id. at 286. Once
countered by a reasonable possibility of suicide, the presumption
dropped out of the case entirely, leaving it to be decided on the
evidence offered by each side. Id. at 286-87.
Where coverage or non-coverage is to be decided on the
merits, the burden of proof to show a covered cause or set of
causes by a preponderance of the evidence rests upon the claimant.
Dir., Office of Workers' Comp. Programs v. Greenwich Collieries,
512 U.S. 267, 278 (1994). Here, some evidence presented at the
formal hearing weighs against the suicide explanation. Several
witnesses testified that Michael Truczinskas was "upbeat" or "very
low-key and happy" before his death, and Terri Truczinskas
-17-
testified that her husband was planning a trip home and had already
begun to purchase Christmas gifts for his family.
But neither suicide nor misadventure is ruled out by the
fact that Michael Truczinskas was discovered with his head in a
noose but his feet on the floor, nor by the absence of a suicide
note, by no means universal in suicide cases,9 and hardly to be
expected if the cause were misadventure. In all events, the
probability of a covered cause, as against realistic possibilities
plainly present in this case, depends on whether hypothetical
possibilities have support in evidence in the case at hand. So far
as appears there is no evidence of a covered cause.
To carry her burden and show the denial unreasonable,
Terri Truczinskas has offered a number of theories to explain how
her husband's death may have had the requisite connection to his
work as a military trainer in Tabuk. These include the following:
-that her husband may have been killed by
conservative Muslim vigilantes who were
offended by his alleged extramarital affair or
alleged cross-dressing;
-that her husband may have learned that one of
his co-workers was involved in arms smuggling
or selling military intelligence, that the co-
worker may have killed Michael Truczinskas to
silence him, and that GD may have been
complicit in the cover-up; and
-that her husband had been investigating "a
threat" to Americans in the area and that he
9
See, e.g., Scanlon v. Harkleroad, 740 F. Supp. 2d 706, 723
(M.D.N.C. 2010) (in cases of suicide, "more common that a suicide
note is not left" than that it is).
-18-
had "offended the Saudis" in the course of the
investigation; and that Michael Truczinskas'
death might have been related to this
investigation.
But she admits that she has "no evidence" of arms
smuggling or espionage or attacks on GD employees by roving
vigilantes. She presented testimony from an "expert" in Middle
Eastern studies opining that these theories were "not far-fetched,"
but offering little more. Given the protected environs of the base
and lack of evidence, the ALJ and Review Board could not easily
have credited all or any of these theories in preference to those
positing that Michael Truczinskas had caused his own death, whether
deliberately or not.
Terri Truczinskas also relies on the doctrine, already
mentioned, that a harm may be covered as employment related if it
derives from the employee's presence in a "zone of special danger"
but she failed to establish any such derivation here. Neither
suicide in the ordinary case, 33 U.S.C. § 903(c), nor harm
"resulting from recreational activities that are neither reasonable
nor foreseeable," Kalama Servs., Inc. v. Dir., Office of Workers'
Comp. Programs, 354 F.3d 1085, 1091-1092 (9th Cir.), cert. denied,
543 U.S. 809 (2004), fall within the scope of the zone-of-special-
danger doctrine. See also Gillespie v. Gen. Elec. Co., 21 Ben.
Rev. Bd. Serv. (MB) 56, 1988 WL 232796, at *1-2 (1988), aff'd mem.,
873 F.3d 1433 (1st Cir. 1989).
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The dissenting Review Board member made a number of
points, several already discussed, but none undermines the evidence
and inferences supporting the majority's conclusion. The dissenter
thought (incorrectly, see Swanson, Chamelin, Territo & Taylor,
Criminal Investigation 294 (10th ed. 2009)), that the position of
Michael Truczinskas's body wholly negated the possibility of
suicide; and anyway suicide is not the only plausible non-covered
explanation. The dissenter also expressed doubts about Wolf's
credibility but not any evidence that seems to us substantial.10
Finally, the dissenting member emphasized the fact that
the Saudi police still have not closed their investigation into
Michael Truczinskas' death; she suggested that this fact "is
entitled to determinative weight in this case," as it indicates
that the police force was unable to conclude that the death was due
to suicide. But the failure of the claim depends not on proof that
the death was suicide but on Terri Truczinskas’ inability to
establish a likely cause of death covered by the DBA.
Michael Truczinskas' early death was a tragedy; and his
widow is a sympathetic case for compensation. But the Defense Base
Act, like the Longshore Act, "is not the equivalent of health or
10
According to the dissenting judge, "not only have Saudi
police interrogated Wolf repeatedly, they have also taken blood
samples from him, thereby suggesting questions about his
involvement in [Michael Truczinskas]' death." Given that Wolf was
first on the scene and had blood on him, this is hardly surprising,
and nothing contradicted evidence that he was summoned to the scene
after the fatal event.
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life insurance," see LeBlanc v. Cooper/T. Smith Stevedoring, Inc.,
130 F.3d 157, 160 (5th Cir. 1997) (quoting McNeelly v. Sheppeard,
89 F.2d 956, 958 (5th Cir. 1937)). Absent a showing that the
employee's injury arose from employment or from a "zone of special
danger" related to employment, the DBA provides no coverage.
The petition for review is denied.
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