N.R. v. Halliburton Services

Decision Date30 June 2008
Docket NumberBRB 07-0810
PartiesN.R., Claimant-Petitioner v. HALLIBURTON SERVICES and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Employer/Carrier- Respondents
CourtLongshore Complaints Court of Appeals

Appeal of the Decision and Order of Lee J. Romero, Jr. Administrative Law Judge, United States Department of Labor.

David M. Linker (Freedman & Lorry, P.C.), Cherry Hill, New Jersey, for claimant.

Michael D. Murphy (Hays, McConn, Rice & Pickering) Houston, Texas, for employer/carrier.

Before: SMITH, McGRANERY, and HALL, Administrative Appeals Judges.


ROY P. SMITH, Administrative Appeals Judge.

Claimant appeals the Decision and Order (2006-LDA-53) of Administrative Law Judge Lee J. Romero, Jr., denying benefits on a claim filed pursuant to the provisions of the Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §901 et seq., as extended by the Defense Base Act, 42 U.S.C. §1651 et seq. (the Act). We must affirm the administrative law judge’s findings of fact and conclusions of law if they are supported by substantial evidence, are rational, and are in accordance with law. 33 U.S.C. §921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965).

Claimant was hired by employer to work as an electrician, and was deployed for Camp Eggers, a military base located in Kabul, Afghanistan, on August 25, 2005. Once on the job, claimant developed concerns regarding certain aspects of his work situation, which he raised with employer. [1] Believing that his grievances would not be satisfactorily addressed, claimant decided, on or about November 1, 2005, to leave Afghanistan around the end of 2005. He thereafter e-mailed a resignation letter, dated November 9, 2005, in which he outlined his concerns and requested that employer arrange transportation for him from Kabul International Airport (KIA) to Houston, Texas, on December 25, 2005.

Claimant was subsequently informed that employer was not authorized to fly its personnel home or reimburse employees for fares from KIA, and that his return flight from Afghanistan would have to be, as was his flight into that country, by military transport from Bagram Air Base (BAB). Dissatisfied with employer’s response, claimant sought to arrange his own travel itinerary, culminating in an unauthorized trip from Camp Eggers, on November 20, 2005, to a travel agent located in Kabul, Afghanistan. Upon his return to Camp Eggers that day, claimant was detained by United States Military Police (MPs), and informed by employer’s security personnel that he should pack his bags immediately as he was to leave for BAB, via convoy, at 4 p.m.

Claimant then discussed the issue of his leaving the base with his immediate supervisor, Mr. Martinez; the military liaison officer for employer, Major Spencer; the Camp’s Inspector General, Lieutenant Colonel Sefren (IG); and the garrison commander, Major Gobbeloff. Upon leaving his meeting with Major Gobbeloff, claimant stated that he was instructed by employer’s security personnel to get into a military vehicle. Claimant stated that he refused to do as instructed because he did not think the trip to BAB was safe. After two MPs arrived, the IG intervened but ultimately turned the situation back over to them, leading to repeated requests that claimant get into the vehicle.

Claimant’s continued refusal to do as asked prompted the MPs to take action. As one MP handcuffed claimant’s hands behind his back, the second attempted to put claimant into body armor. Claimant repeatedly resisted the MP’s efforts, and stated that before he knew it, he was on the ground. The MPs then pulled claimant up from the ground, placed him into the vest, and put him into the vehicle. At that time, he was driven to Camp Phoenix, where he immediately informed the MPs that his neck, shoulder and wrist were hurting. He was treated at employer’s clinic for these injuries and prescribed medication, ice packs and ointment. Two days later, claimant was transported to BAB, where his return trip home began via military transport.

Claimant arrived in Houston, Texas, on November 24, 2005, and shortly thereafter sought treatment from Dr. Thomas for his lower back, right shoulder, neck and wrist. Dr. Thomas diagnosed a strain of claimant’s upper extremity, back and neck, and concluded that claimant was totally disabled from December 2, 2005, to January 2, 2006. During that time, claimant underwent physical therapy, which, he said, did not alleviate his pain, particularly that associated with his neck. On February 6, 2006, Dr. Etminan performed surgery on claimant’s neck to treat his cervical radiculopathy.

Meanwhile, claimant restarted his business, Sinewave Electric, on December 22, 2005, and worked one or two jobs before his neck surgery. Around March 1, 2006, he began taking additional jobs but indicated that he is limited from doing any heavy lifting and from using his hands above his head, as well as having significant pain and trouble in driving and sitting in a vehicle for any prolonged period of time. Claimant thereafter filed this claim under the Act. [2]

The administrative law judge found that claimant established that he suffered harm on November 20, 2005, and that the events resulting in his injuries are not disputed. Decision and Order at 22, 26. Nonetheless, he concluded that claimant did not establish a prima facie case for an injury under the Act, as he failed to establish that his injury occurred in the course of his employment. Specifically, the administrative law judge found that claimant’s injury did not occur at the hands of co-workers, but were incurred due to his resistance to the “force designed and empowered to protect him.” Id. at 26. The administrative law judge concluded that claimant’s conduct at the time of his injury placed him beyond the scope of the “zone of special danger, ” since claimant willfully refused to comply with the lawful instructions of the MPs, obstructed their efforts to equip him for travel and defied their requests. The administrative law judge concluded that through his actions, claimant became “so thoroughly disconnected from the service of his employer that it would be unreasonable” to conclude that his injuries arose out of, or in the course of, his employment. Id. at 26. The administrative law judge further stated that, even if claimant had established a prima facie case for application of Section 20(a), 33 U.S.C. §920(a), upon weighing the evidence as a whole, claimant’s obstructive conduct led to his injuries “at the hands of the force protector, not the employer” such that employer is not liable for claimant’s injuries incurred while he “resisted the lawful mandates of the U.S. Army on a military base in a foreign hostile land.” Id. at 27. Accordingly, benefits were denied.

On appeal, claimant challenges the administrative law judge’s finding that his injuries are not work-related and the consequent denial of benefits. Employer responds, urging affirmance.

Claimant contends that the administrative law judge erred in finding that the injuries he sustained as a result of the November 20, 2005, incident are not compensable. Claimant maintains that the undisputed facts establish that the incident causing his disability occurred at Camp Eggers and was directly linked to his employment with employer. In this regard, claimant maintains that, in contrast to the administrative law judge’s finding, a “zone of special danger” was created by the conditions of his overseas job with employer and that claimant’s injury occurred within this zone. [3]

Under the Act, an injury generally occurs in the course of employment if it occurs within the time and space boundaries of the employment and in the course of an activity whose purpose is related to the employment. Palumbo v. Port Houston Terminal, Inc., 18 BRBS 33 (1986); Mulvaney v. Bethlehem Steel Corp., 14 BRBS 593 (1981). However, in cases arising under the Defense Base Act, the United States Supreme Court has held the employees may be within the course of employment even if the injury did not occur within the space and time boundaries of work, so long as the employment creates a “zone of special danger” out of which the injury arises. O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 507 (1951). In O’Leary, the employee, after spending the afternoon at the employer’s recreational facility near the shoreline in Guam, drowned while attempting to rescue two men in a dangerous channel. [4] The Court held that an employee need not establish a causal relationship between the nature of his employment and the accident that occasioned his injury. Id. at 506-07. “Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer.” Id. at 507. Rather, “[a]ll that is required [for compensability] is that the “obligations or conditions of employment create the ‘zone of special danger’ out of which the injury arose.” O’Leary, 340 U.S. at 505. In O’Keeffe, 380 U.S. 359, the employee drowned in a lake in South Korea during a weekend outing away from the job. In awarding benefits, the Court noted that the employee had to work under “the exacting and dangerous conditions of Korea.” 380 U.S. at 364. See also Gondeck v. Pan-American World Airways, Inc., 382 U.S. 25 (1965)(awarding benefits where employee was killed in a car accident while on the way back from having a beer in town on San Salvador Island in the British West Indies).

The Board has followed the Supreme Court’s holdings in a series of cases. In Smith v. Board of Trustees, Southern Illinois University, 8 BRBS 197 (1978), the employee, an educational advisor employed by Southern Illinois University who, through a United States Government contract, was providing assistance to the Nepalese government, died from a ruptured abdominal aortic aneurysm after...

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