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Chugach Management Services v. Jetnil

United States Court of Appeals, Ninth Circuit

July 21, 2017

Chugach Management Services; Zurich American Insurance Company, Petitioners,
v.
Edwin Jetnil; Director, Office of Workers' Compensation Program; U.S. Department Of Labor, Respondents.

          Argued and Submitted May 16, 2017 San Francisco, California

         On Petition for Review of an Order of the Benefits Review Board No. 14-0361

          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.

          Before: William C. Canby and Mary H. Murguia, Circuit Judges, and Cynthia M. Rufe, [*] District Judge.

         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).

         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.

          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.

         I. 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 ...


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