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The 1st Circuit Court of Appeals affirmed an award of death benefits under the Defense Base Act (DBA) to the widow of an employee who died in an auto accident in Tbilisi, Georgia, while traveling by taxi to shop for groceries. The employee worked for a subcontractor working for the U.S. Department of Defense on countering the threat of biological weapons. The subcontractor had a laboratory in Tbilisi, but provided no housing at its facility for the workers. Instead, the employees were given a housing and utilities allowance, with no restrictions on where they could live. While some workers had cars of their own, the subcontractor provided taxi vouchers up to a value of 700 (Georgian) Lari a month. This particular employee also 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.” The 1st Circuit applied the DBA’s zone-of-special-danger doctrine. It noted, however, that “special” was best understood to mean “particular,” but not necessarily “enhanced.” The court added that the determination of foreseeable risk was necessarily specific to context and thus turned on the totality of circumstances. The court was not persuaded by the employer’s argument 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. The court concluded that the real question, then, was which “ubiquitous” activities were covered. That answer was a case-specific determination of foreseeable, reasonable incidence to the foreign employment, left largely for the Benefits Review Board.
Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).
LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.
See Battelle Memorial Inst. v. DiCecca, 2015 U.S. App. LEXIS 11587 (1st Cir., July 6, 2015) [2015 U.S. App. LEXIS 11587 (1st Cir., July 6, 2015)]
See generally Larson’s Workers’ Compensation Law, § 149.04 [149.04]
Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.
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