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Maritime Update: 4th Circuit Court of Appeals Rules “Zone of Danger Test” Not Applicable to Compensation Claims

Posted on by Baldwin, Haspel, Burke & Mayer

In the case of CERES MARINE TERMINALS, INC., v DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED and SAMUEL JACKSON, the Fourth Circuit Court of Appeals (federal) ruled that LHWCA claimants can recover for a work-related psychological injury and it is not necessary the claimant have an actual or threatened physical harm as a prerequisite for coverage.

The facts are instructive. Samuel Jackson, employed as a longshoreman, was operating a forklift on a pier when he accidentally struck and killed Bellamy. At the time, Jackson was transporting barrels when he veered the forklift to his left to avoid being struck by a truck that was backing up. When he veered, he hit Bellamy, a spotter, who had her back towards him. Jackson did not see Bellamy, and did not realize he had hit her until another spotter, “hollered at [him] to let [him] know that [he] had just ran over…somebody.” Jackson immediately got off his forklift to help extricate Bellamy, who was almost completely pinned underneath the forklift. Another forklift driver drove over and, with his machine, raised the back end of Jackson’s forklift. Jackson and others worked to free Bellamy from under his forklift. Once they were able to lift the forklift, it was apparent that Bellamy’s condition was dire; Jackson testified that, “[Bellamy] was bleeding from her mouth. Her arm was burned and pretty mangled, hanging off.” Jackson also testified that Bellamy’s leg was wrapped around the axle of the forklift. For about ten minutes, Bellamy’s condition was in full view until emergency vehicles arrived. By this time, approximately one hundred people gathered at the scene, including ambulance and fire truck personnel and other employees. During the entire time that the first responders worked to save Bellamy, Jackson stood ten to fifteen feet away, with a clear view of her. After the ambulance left for the hospital, Jackson spent the rest of the day reporting the accident to the police department, Occupational Safety and Health Administration, and company officials. Jackson testified that after his conversation with his superintendent, he sought medical attention. All of the treating mental health professionals diagnosed PTSD.

Jackson filed for benefits and the employer controverted his claim. They relied upon the Supreme Court case of Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994) and argued that a person bringing a claim under the LHWCA is required to satisfy the “zone of danger” test outlined by the Gottshall court. It was their defense that, “Under this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to himself, whereas a worker outside the zone will not.”

The Administrative Law Judge instead held that, “[l]ongshore case law has established that a claimant can obtain benefits for a work-related psychological injury,” and declined, “to carve out a negligence law based exception whereby claimants are not entitled to benefits if they are emotionally harmed without being physically harmed or threatened with physical harm.” The employer then appealed to the Benefits Review Board raising the same arguments. The Board, like the ALJ, rejected those arguments. On appeal to the Fourth Circuit, they too found that the Supreme Court case of Gottshall expressly stated that FELA (and the Jones Act which adopted FELA) was not a workers’ compensation statute. Instead, the basis of an employer’s liability under FELA is its negligence, which turns on common-law principles. Unlike the LHWCA statute, FELA, “does not make the employer the insurer of the safety of his employees while they are on duty. The basis of his liability is his negligence, not the fact that injuries occur,” as in the workers compensation setting.

This Court in Jackson’s case went on the hold, “Because we are not free to engraft on the statute a requirement that Congress did not place there, we decline to adopt the zone-of-danger test.”

The full case is here:

If you have any questions regarding this matter, please contact Bill Schwartz at (504) 569-2900 or



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