Chugach Management Services; Zurich American Insurance Company, Petitioners,
Edwin Jetnil; Director, Office of Workers' Compensation Program; U.S. Department Of Labor, Respondents.
and Submitted May 16, 2017 San Francisco, California
Petition for Review of an Order of the Benefits Review Board
L. Flicker (argued) and Timothy A. Pedergnana, Flicker
Garelick & Associates LLP, New York, New York, for
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
Before: William C. Canby and Mary H. Murguia, Circuit Judges,
and Cynthia M. Rufe, [*] District Judge.
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.
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.
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
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).
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.
MURGUIA, Circuit Judge.
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.
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.
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 ...