United States Court of Appeals For the First Circuit

No. 14-1742

BATTELLE MEMORIAL INSTITUTE, and VIGILANT INSURANCE COMPANY,

Petitioners,

v.

SANDRA DICECCA, and DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR,

Respondents.

PETITION FOR REVIEW OF AN ORDER OF THE BENEFITS REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR

Before Barron, Circuit Judge, Souter,* Associate Justice, Lipez, Circuit Judge. _____________________

Robert N. Dengler, with whom Flicker, Garelick & Associates, LLP was on the brief, for petitioners. Howard S. Grossman, with whom Grossman Attorneys At Law, Thomas A. Tarro, III, Kris Macaruso Marotti, Tarro & Marotti Law Firm, LLC were on the brief, for respondent DiCecca. Matthew W. Boyle, with whom M. Patricia Smith, Solicitor of Labor, Rae Ellen James, Associate Solicitor, Mark Reinhalter, Counsel for Longshore, and Gary K. Stearman, Counsel for Appellate Litigation, were on the brief, for federal respondent.

* Hon. David H. Souter, Associate Justice (Ret.) of the Supreme Court of the United States, sitting by designation. July 6, 2015 SOUTER, Associate Justice.. This case comes to us on

petition to review an award of death benefits made by the Benefits

Review Board under the Defense Base Act (DBA),

et

seq. The recipient (respondent here) is the widow of a covered

employee stationed in Tbilisi, Georgia who died in an auto accident

while traveling by taxi to shop for groceries. The issue turns on

application of the "zone of special danger" principle, O'Leary v.

Brown-Pacific-Maxon,

(1951), and we affirm the

agency's award.

I.

Gerald DiCecca was hired by Petitioner Battelle Memorial

Institute (BMI) as a facility engineer in its Tbilisi, Georgia

laboratory, BMI being a subcontractor working for the U.S.

Department of Defense on countering the threat of biological

weapons. DiCecca's formal hours were 8 a.m. to 5 p.m., Monday

through Friday, but, according to a colleague, "everyone [was]

always on call to one degree or another," even in the absence of

an on-call schedule. Every employee was "called on to come in

outside of normal working hours from time to time to respond to

emergencies."

BMI's laboratory included neither housing accommodations

nor a restaurant, and employees were provided instead with a

housing and utilities allowance, with no restrictions on where

- 3 - they could live. While some had cars of their own, BMI provided

taxi vouchers up to a value of 700 (Georgian) Lari a month, payable

to a company called Lucky Cabs. These vouchers were good only

within a 25 km radius of the city, but they could be used for any

purpose, be it professional or personal, including grocery

shopping. On top of these benefits, DiCecca received a 25% salary

supplement as "hardship pay" for working where, according to his

employment contract, "the living conditions are unusually

difficult or dangerous and/or facilities are inadequate."

DiCecca's "conditions . . . and[] facilities" included

two grocery stores for food shopping. The smaller one was a five-

to-ten minute walk from his apartment, but the respondent, who

visited her husband in Tbilisi, did not consider that store "safe"

and would not eat food from it, after observing flies on the meat.

The second, which she did consider safe enough, was like a Walmart,

with a larger selection, but some 12-14 km away from DiCecca's

apartment, a roughly 20-minute taxi drive.

DiCecca was traveling to this larger grocery store in a

Lucky Cabs taxi when it was hit head-on by another car, whose

driver was apprehended on suspicion of drunk driving. DiCecca

died from his injuries.

On the widow's claim for death benefits, the

administrative law judge received evidence and held in her favor.

- 4 - BMI appealed, and the Board affirmed the award. The petition for

our review followed, and here the Board has also appeared as a

respondent.

II.

The DBA, enacted in 1941, provides workers' compensation

coverage for those employed outside the continental United States

on national defense projects, under contracts with or approved by

the government, by extending the application of the Longshore and

Harbor Workers' Compensation Act (LHWCA).

(a)(4)-

(5), 1651(b)(1); see also Truczinskas v. Office of Workers' Comp.

Programs,

(1st Cir. 2012). The LHWCA provides

compensation for injuries or death "arising out of and in the

course of employment."

(2). In the sub-class of

cases subject to the DBA, however, this scope-of-employment

provision is modified by the "zone of special danger" doctrine set

forth in O'Leary,

, and subsequently applied in

O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc.,

(1965) (per curiam), and Gondeck v. Pan American World Airways,

Inc.,

(1965) (per curiam). Given both the scarcity of

appellate case law on the doctrine's meaning, here and in other

circuits, and the generality of the terms in which the doctrine is

set forth, we think a review of the three Supreme Court cases is

in order.

- 5 - A.

The facts in O'Leary are remarkable. The employee was

stationed in Guam working for a government contractor. The

employer maintained a recreation spot near the shoreline, along

which ran a channel so dangerous that swimming was prohibited (and

signs were in place saying so). An employee who had enjoyed an

outing there was waiting for a bus when he saw two men signaling

for help from a reef across the channel; he dove in to swim to

their rescue and drowned. O'Leary,

. The Deputy

Commissioner of Labor awarded death benefits, but the Ninth Circuit

reversed, treating the employee's rescue attempt as distinct from

the recreation the employing contractor had in mind and outside

the course of employment.

.

In an opinion by Justice Frankfurter, the Supreme Court

rejected the Ninth Circuit's analysis as "too restricted an

interpretation of the act."

Workmen's compensation is not confined by common-law conceptions of scope of employment. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. 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. A reasonable rescue attempt, like pursuit in aid of an officer making an arrest, may be one of the risks of the employment, an incident of the service, - 6 - foreseeable, if not foreseen, and so covered by the statute. This is not to say that there are not cases where an employee even with the laudable purpose of helping another, 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. We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own.

(citations and quotation marks omitted).

While much attention has been paid to this passage, we

find another aspect of O'Leary instructive as well, in setting the

scope of judicial review of an administrative coverage decision.

O'Leary called the agency's determination of whether a particular

injury falls within the zone of special danger a "question of

fact," describing this expansive conception of what is factual by

calling the conclusion in question one that "concerns a combination

of happenings and the inferences drawn from them."

.

The Court acknowledged that "the inferences presuppose applicable

standards for assessing the simple, external facts" but did not

believe the determination was "appropriate for independent

judicial ascertainment as questions of law."

.

Accordingly, as a factual determination, the agency's findings

applying the zone-of-special-danger doctrine are commonly reviewed

by applying the deferential "substantial evidence" test under the - 7 - Administrative Procedure Act. See

. So, in O'Leary,

the Court reviewed the evidence in support of the agency's award

of benefits and, while observing that it did not "compel[] th[e]

inference" drawn by the agency (and indeed could have supported

the contrary conclusion), found the evidence "consistent and

credible" enough that the agency "could rationally infer that [the

employee] acted reasonably in attempting the rescue, and that his

death may fairly be attributable to the risks of the employment."

While the zone-of-special-danger doctrine was born in a

case about a very hazardous rescue attempt, it has not been limited

to circumstances of such extraordinary risk. The Supreme Court's

subsequent cases have involved employees' deaths arising out of

recreational activities (a boating mishap, and a car accident

returning from a night club). Both times, the Court ruled in

support of an award of benefits. Smith, Hinchman & Grylls,

; Gondeck,

.

Smith, Hinchman & Grylls presents another example of

exceptional facts. The employee of a government contractor in

Seoul, South Korea left the city to spend Memorial Day weekend at

a friend's lake house. Their Saturday activities were meant to

improve the beach in front of the house, for which they crossed

the lake in a small boat and filled it with sand from the other

- 8 - side. The boat capsized on the trip back, and the employee died.

See

;

(Harlan, J., dissenting). The

agency awarded benefits, but the Fifth Circuit reversed.

(per curiam).

The Supreme Court reversed in its turn, and began by

emphasizing how its prior decisions "limit the scope of judicial

review of the [agency's] determination that a particular injury

arose out of and in the course of employment."

(citation

and quotation marks omitted); see also

(reasonable

inferences made by the agency "may not be disturbed by a reviewing

court" (quoting Cardillo v. Liberty Mut. Ins. Co.,

(1947))). Thus the agency's award must stand so long as it is

not "irrational or unsupported by substantial evidence on the

record as a whole."

(citation, quotation marks, and ellipses

omitted).

On the merits, the Court repeated the "zone of special

danger" formulation and the O'Leary exegesis, as being "in accord

with the humanitarian nature of the Act."

It then held that

the agency's award was neither irrational nor wanting substantial

evidence in the record as a whole: the employee had been hired to

work in the "exacting and unconventional conditions of Korea"; his

transportation to and from Korea was at his employer's expense; he

worked 365 days each year, was on-call at all times, and quite

- 9 - often worked on Saturdays and Sundays; his employer provided

neither housing nor recreation but provided a daily per diem for

his necessary expenses; the accident occurred on a short

recreational outing just thirty miles from the employer's

workplace; and the recreation might be said to benefit the

employer. See id. at 363-64. As in O'Leary, the Court observed

that it "may not have reached the same conclusion as the" agency,

id. at 363, but nevertheless affirmed the award, and cited with

approval four circuit court cases, all supporting awards for

injuries arising out of recreational activities. See O'Keeffe v.

Pan Am. World Airways, Inc.,

(5th Cir. 1964) (employee

in Grand Turk, British West Indies died in a scooter accident while

returning to base from social visit); Pan Am. World Airways, Inc.

v. O'Hearne,

(4th Cir. 1964) (employee in San Salvador,

British West Indies died in a jeep accident while returning to

base from night club in nearby town); Self v. Hanson,

(9th Cir. 1962) (female employee in Guam was injured when another

vehicle collided with her parked car, during rendezvous with a

male employee); Hastorf-Nettles, Inc. v. Pillsbury,

(9th Cir. 1953) (employee in Alaska was injured in a car accident

while returning from Labor Day outing in another city).

The scope of coverage assumed in Smith, Hinchman &

Grylls's plenary catalog of supportive facts gained emphasis from

- 10 - the dissenting criticism of three justices, who concentrated on

two points. First, the dissenters read the per curiam opinion as

effectively holding that "any decision made by a Deputy

Commissioner must be upheld."

(Harlan, J.,

dissenting, joined by Clark, White, JJ.). Second, the dissenters

argued that only an incorrect "but for" compensation rule could

justify the award of benefits in that case. See

.

The majority justices responded that such criticisms were

inconsistent with the "limited judicial review" available under

the statute.

(per curiam). They added that "this type

of determination, depending as it does on an analysis of the many

factors involved in the area of the employment, would seem to be

one peculiarly for the Deputy Commissioner."

The third of the trio of cases, Gondeck, arose from the

death of an employee working for Pan American Airlines in San

Salvador, British West Indies who perished in a jeep accident, in

fact the same accident at issue in the Fourth Circuit case,

O'Hearne,

, cited with approval in Smith, Hinchman &

Grylls,

. The Pan American base had its own bar as

well as bus service to a nearby town with a night club. The

employee nevertheless took a company jeep to the club (likely

without authorization) and died in an accident during the return

trip, possibly from speeding. The agency awarded benefits, and

- 11 - the Fifth Circuit reversed. See Gondeck,

; United

States v. Pan Am. World Airways, Inc.,

(5th Cir.

1962), rev'd sub nom. Gondeck,

; O'Hearne, 335 F.2d at

70-71. The Supreme Court again reversed the Fifth Circuit. Its

discussion was brief and largely focused on procedural details not

relevant here. As to the merits, it appeared to find the case

straightforward. The Court reiterated the "limited judicial

review" of agency determinations and upheld the award under the

zone-of-special-danger doctrine set forth in O'Leary and Smith,

Hinchman & Grylls. See Gondeck,

.

From these and the few recent appellate and

administrative cases on point, we can extract some general

principles creating a legal texture, though not a precise rule.

First, the zone-of-special-danger doctrine under the DBA works an

expansion of traditional employer liability to include coverage

for injuries without any direct causal connection to an employee's

particular job or to any immediate service for the employer. They

must simply fall within foreseeable risks occasioned by or

associated with the employment abroad. Although the requisite

"special danger" covers risks peculiar to the foreign location or

risks of greater magnitude than those encountered domestically,

the zone also includes risks that might occur anywhere but in fact

occur where the employee is injured. "Special" is best understood

- 12 - as "particular" but not necessarily "enhanced." There is a pale

of cognizability, however, which stops short of astonishing risks

"unreasonabl[y]" removed from employment. See O'Leary,

; see also Truczinskas,

(DBA "is not the

equivalent of health or life insurance" (citations omitted)). Thus

administrative determinations have denied benefits, for example,

for damages from cosmetic skin peels, R.F. v. CSA, Ltd.,

, 43 BRBS 139 (2009), and asphyxiation from auto-erotic

practices, Gillespie v. Gen. Elec. Co., 21 BRBS 56 (1988).

Second, the determination of foreseeable risk is

necessarily specific to context and thus turns on the totality of

circumstances. See Smith, Hinchman & Grylls,

;

O'Keeffe,

; O'Hearne, 335 F.2d at 70-71; Self,

; Pillsbury,

; see also Kalama Servs.,

Inc. v. Office of Workers' Comp. Programs,

(9th Cir. 2004), cert. denied,

.

Third, and relatedly, in this corner of the law, the

agency is given deference in applying the apposite doctrine to the

particular case at hand. Accordingly, the agency's rational

determination 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. See O'Leary,

-

09; Smith, Hinchman & Grylls,

; Gondeck, 382

- 13 - U.S. at 27. And when agency action extends beyond even O'Leary's

rather catholic understanding of fact-finding, its legal

determination is entitled to deference under the rule in Skidmore

v. Swift & Co.,

(1994) (reasonable agency

interpretations have persuasive force, even if "lacking power to

control"). See Neely v. Benefits Review Bd.,

(1st Cir. 1998) (citing Metropolitan Stevedore Co. v. Rambo,

(1997) (according Skidmore deference to this

agency)).

B.

We turn now to the Board's decision awarding benefits

and to its crucial passage.

The administrative law judge addressed the proper inquiry under O'Leary, focusing on the foreseeability of the injury given the conditions and obligations of employment in a dangerous locale. Decedent lived and worked in a dangerous locale as evidenced by the employer's payment of a hardship allowance/danger pay. Employer provided its employees taxi vouchers each month for use with a specific cab company that utilized Mercedes Benz automobiles. Employer permitted its employees to utilize the cab service for any reason within a certain radius. . . . [I]t is also entirely foreseeable that an employee will need to purchase groceries, and, given the taxi vouchers provided by employer, entirely foreseeable that decedent would take a taxi to the grocery store. The fatal accident, thus, also was a foreseeable, "if not foreseen," consequence of riding in a taxi in a place where the dangers of automobile travel were anticipated by employer. Although - 14 - employer attempted to mitigate the danger, employer has not cited any circumstances that could warrant a legal conclusion that decedent's activity was not rooted in the conditions of his employment or was "thoroughly disconnected" from the service of employer. We, therefore, affirm the administrative law judge's findings that the zone of special danger doctrine applies and that decedent's death is compensable under the Act as they are rational, supported by substantial evidence and in accordance with law.

BRB No. 13-0378,

, at *3 (DOL Ben. Rev. Bd. May 9,

2014) (citations omitted).

The record holds the substantial evidence that supports

these findings and ensuing conclusions. BMI assigned DiCecca to

a foreign workplace, where he was always subject to call, and

assumed provision of transportation there by taxi service limited

as to geography but for any purpose, within the scope of which

food buying was foreseeable travel with risks that were realized

in this fatal accident. These findings would suffice for

liability, but the Board mentioned another relevant condition that

supports its conclusion, though not crucial to it: BMI provided

hazardous duty pay on top of DiCecca's base salary, indicating

that reasonably foreseeable risks generally extend beyond the

conditions of American grocery shopping.1

1Indeed, BMI does not point to any particular factual error underlying the Board's ruling. Rather, it contends that an employee's pursuit of a "necessity" should not be considered within - 15 - BMI's principal contention for reversing the award is

that the zone-of-special-danger case law demands a nexus between

the employment and the activity giving rise to the injury, a

requirement to be satisfied in only two alternative ways: (1) when

the injury occurred during a reasonable recreational activity in

an isolated place with limited social opportunities; or (2) where

the site of work presented conditions enhancing the risk of injury

to some appreciable degree beyond the domestic norm. BMI says

that DiCecca's assignment here falls into neither category, and so

lacks the nexus between injury and employment.

While at a general level we hardly quarrel with the

proposition that there must be some nexus between injury and

employment, the cases are at odds with BMI's binary exclusiveness

in which the only alternative to heightened danger is recreational

activity. In its argument for this limited category, BMI focuses

the scope of employment. But, as just indicated, the record here does not show a simple pursuit of a necessity. In any case, as explained below, a categorical distinction between pursuit of a necessity and optional engagement in recreation would be irrational. For its part, the Board presses in its brief that this case presents a question of law and thus this court should approve the Board's rule that injuries arising out of reasonable and foreseeable activities are always covered by the DBA. But, although we have engaged in totality of circumstances review, it is really unnecessary to accept the Board's general rule as a distillation of totality of circumstances cases or as an approach subject to Skidmore deference. We simply have no need to resolve this question. - 16 - on the Fifth Circuit's language in O'Keeffe, that on an island

"lacking in most of the social and recreational facilities usually

available to American employees, the individual's recreation is in

the service of his employer no less than in his own interest."

. BMI goes on to emphasize similar language in

other cases for the theory that recreational activity is considered

within the scope of employment because it benefits the employer.

See Petitioners Br. at 13-17 (citing Pillsbury, Self, O'Hearne,

Gondeck, Smith, Hinchman & Grylls, and Kalama).

What does not follow, however, is that good times are

the only foreign activities that serve the employer as well as the

employee, or even that mutual benefit is necessary for an adequate

nexus in the absence of enhanced risk. To begin with, these cases

cannot be reduced to a single controlling factor, for in each case,

the application of the zone-of-special-danger doctrine turned on

the totality of circumstances. See, e.g., Smith, Hinchman &

Grylls,

(listing perhaps ten different

considerations, depending on how one counts, only one of which was

a benefit to the employer); Pillsbury,

(same).

And, even if these cases could be reduced to a single crux, it

would not be employer benefit, which was flatly rejected in

O'Leary.

("Nor is it necessary that the employee

be engaged at the time of the injury in activity of benefit to his

- 17 - employer."). What is more, even if employer benefit were crucial,

it is hard to imagine a better example of an activity that benefits

the employer than its employee's pursuit of safe food to stay alive

and healthy; flies on the meat are to be avoided. And, finally,

to the extent that geographic isolation in a foreign venue appears

to be doing any work in the case law, it explains why an otherwise

personal activity, like recreation, should be deemed a necessity

and thus incident to overseas employment. See, e.g., Self,

("Obviously, recreation was considered a necessity for

[these] employees in Guam . . . ."). By that logic, because

grocery shopping is a necessity, it too should be considered an

incident to the employment. The short of it is that it is very

hard, perhaps impossible, to distill a rule that injuries arising

out of a night on the town are covered but not those incurred

shopping for food.

Of course, as we said, there must be a nexus between the

employment and injury: the injury must arise out of foreseeable

risks associated with employment abroad. See, e.g., Kalama,

("The ALJ also found that the presence of social clubs

serving alcohol to employees who experience lengthy periods of

isolation on the [island] creates a foreseeable risk that horseplay

might take place from time to time."); O'Hearne, 335 F.2d at 71

("In the circumstances of his employment-residence, the [agency]

- 18 - thought, [the employee] was only doing what he (might) reasonably

be expected to do. In short, that his brief exit was an incident

of the service." (internal quotation marks omitted)). Here, the

Board reasonably found that nexus satisfied.2

III.

The order of the Benefits Review Board is affirmed.

2 BMI expresses a concern that an award of benefits for injuries arising out of activities that are "ubiquitous" (such as grocery shopping) would eliminate any limit on liability under the DBA. See Petitioners Br. 22-24; Reply Br. 5-6. But this argument proves too much; recreation is a "ubiquitous" activity, and yet recreational injuries are commonly covered. The most that can be said in BMI's favor is that not all "ubiquitous" activities entail employer liability. See, e.g., R.F.,

, at *5 (denying benefits for injuries arising out of an employee's chemical peel procedure in Kuwait because the activity intended to make the employee look good was "personal in nature," without "genesis in his employment," and thus "so thoroughly disconnected from his service to [the] employer" that the zone-of-special- danger doctrine was inapplicable). The question, then, is which "ubiquitous" activities are covered. And the answer is a case- specific determination of foreseeable, reasonable incidence to the foreign employment, left largely for the Board. See O'Leary,

. - 19 -