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Battelle Mem. Inst. v. Dicecca

United States Court of Appeals, First Circuit

July 6, 2015

BATTELLE MEMORIAL INSTITUTE, and VIGILANT INSURANCE COMPANY, Petitioners,
v.
SANDRA DICECCA, and DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents

As corrected August 4, 2015.

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.

Before Barron, Circuit Judge, Souter,[*] Associate Justice, Lipez, Circuit Judge.

OPINION

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

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), 42 U.S.C. § 1651 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, 340 U.S. 504, 507, 71 S.Ct. 470, 95 L.Ed. 483 (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 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. BMI appealed, and the Board affirmed the ...


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