Argued: December 8, 2015
Amended: January 27, 2017
Petition for Review of an Order of the Benefits Review Board.
Lawrence Philip Postol, SEYFARTH SHAW LLP, Washington, D.C.,
Michael Steingold, STEINGOLD & MENDELSON, Suffolk,
Virginia; Sarah Marie Hurley, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Respondents.
Patricia Smith, Solicitor of Labor, Rae Ellen James,
Associate Solicitor, Gary K. Stearman, Counsel for Appellate
Litigation, Mark A. Reinhalter, Counsel for Longshore, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent
Director, Office of Workers' Compensation Programs,
United States Department of Labor.
GREGORY, DUNCAN, and FLOYD, Circuit Judges.
for review denied by published opinion. Judge Gregory wrote
the opinion, in which Judge Duncan and Judge Floyd joined.
GREGORY, Circuit Judge:
case arises from a horribly tragic work-related accident.
Samuel P. Jackson, an employee of Ceres Marine Terminals,
Inc. ("CMT"), was operating a forklift when he
accidently struck and killed his coworker, Paula Bellamy.
After this event, Jackson, who was diagnosed with
posttraumatic stress disorder ("PTSD"), filed a
claim with the Director of the Office of Workers'
Compensation Programs (the "Director") for
disability benefits under the Longshore and Harbor
Workers' Compensation Act ("LHWCA" or the
"Act"), 33 U.S.C. § 901. The Administrative
Law Judge ("ALJ") reviewing the claim determined
that Jackson was entitled to benefits and the Benefits Review
Board (the "Board") affirmed.
petitions for review of the Board's decision, arguing
that a person bringing a claim under the LHWCA is required to
satisfy the "zone of danger" test outlined by the
Supreme Court's decision in Consolidated Rail Corp.
v. Gottshall, 512 U.S. 532 (1994). "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." 512 U.S. at 556. Had the Board adopted
such a test, CMT asserts, Jackson would have been precluded
from any recovery under the LHWCA because he was not in the
zone of danger and thus did not suffer a compensable injury.
In addition, CMT contends that the ALJ erred in failing to
give the report of an independent medical examiner, appointed
pursuant to 33 U.S.C. § 907(e), dispositive weight. We
disagree on both points and therefore deny the petition.
March 28, 2011, Jackson, employed by CMT as a longshoreman,
was operating a forklift on a pier in Portsmouth, Virginia,
when he accidently struck and killed Bellamy. At the time,
Jackson was transporting barrels of container pins when he
veered the forklift to his left to avoid being struck by a
hustler truck that was backing up and carrying a forty foot
container. 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." J.A. 61. 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.
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." J.A. 63.
Jackson further 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 CMT 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.
the ambulance left for the hospital, Jackson spent the rest
of the day reporting the accident to the Portsmouth Police
Department, Virginia International Terminals Police
Department, the Occupational Safety and Health
Administration, and CMT officials. Jackson testified that
after his ...