Truczinskas v. Director, Office of Workers' Compensation Programs

United States Court of Appeals
For the First Circuit
No. 11-2503

TERRI TRUCZINSKAS,

Petitioner,

v.

DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF LABOR, G.D. ARABIA LTD.,
and INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA/AIG,

Respondents.

PETITION FOR REVIEW OF AN ORDER OF
THE BENEFITS REVIEW BOARD

Before
Lynch, Chief Judge,
Boudin, Circuit Judge,
and McConnell, Jr.,* District Judge.

Joshua T. Gillelan II, Longshore Claimants Nat'l Law Center,
with whom Donald E. Wallace and MacDonald & Wallace were on brief
for petitioner.
Roger A. Levy with whom James Ralph and Laughlin, Falbo, Levy
& Moresi, LLP were on brief for respondents G.D. Arabia Ltd., and
Insurance Company of the State of Pennsylvania/AIG.
Matthew W. Boyle, United States Department of Labor, Office of
the Solicitor, for respondent Director, Office of Workers'
Compensation Programs, United States Department of Labor.

November 20, 2012

*
Of the District of Rhode Island, sitting by designation.
 BOUDIN, Circuit Judge. Michael Truczinskas, age 46, was

employed until his death by GD Arabia, Ltd. ("GD") as a military

trainer in Tabuk, Saudi Arabia. On the morning of December 5,

2008, according to the testimony of a co-worker, Truczinskas was

found inside his villa hanging from a cross-beam with a noose

around his neck. Shortly thereafter, a doctor at a nearby hospital

pronounced Truczinskas dead and identified "asphyxiation by

hanging" as the cause of death.

Five months later, Michael Truczinskas' widow, Terri

Truczinskas, filed a claim for death benefits on behalf of herself

and the couple's three children under the Defense Base Act ("DBA"),

42 U.S.C. §§ 1651-1654 (2006). Pursuant to agency policy and as

authorized by statute, the matter was transferred to the district

director's office based in Boston, the location closest to Terri

Truczinskas' Connecticut home, and adjudicated there.1 An

administrative law judge ("ALJ") denied Terri Truczinskas' claim on

November 18, 2010. A three-judge panel of the Department of

Labor's Benefits Review Board affirmed the ALJ's order on December

13, 2011, with one member of the panel dissenting.

1
U.S. Dep't of Labor, Div. of Longshore & Harbor Workers'
Comp., Industry Notice 122 (Sept. 20, 2007) (transfer of new DBA
claims to district office within whose jurisdiction the claimant
resides). The district directors have the powers originally
assigned to "deputy commissioners" under the relevant statutes
discussed below. 20 C.F.R. § 701.301(a)(7) (2012).

-2-
 Terri Truczinskas now seeks direct review in this court,

raising an issue of jurisdiction on which the circuit courts are

divided. Terri Truczinskas, GD (and its insurance carrier) and the

Department of Labor are all satisfied that we have jurisdiction,

but as the parties cannot confer such jurisdiction where it does

not exist, we must still address the issue. García-Velázquez v.

Frito Lay Snacks Caribbean, 358 F.3d 6, 8 (1st Cir. 2004). It

turns out to be a close call even though the sensible result,

consistent with Congress' policy, clearly supports our

jurisdiction.

When Congress adopted the DBA in 1941, it aimed to

provide workers' compensation covering, among others, individuals

employed outside the continental United States under contracts with

or approved by the federal government. DBA § 1(a)(4)-(5), 42

U.S.C. § 1651(a)(4)-(5). Drawing on the federal model in the

already established Longshoremen's and Harbor Workers' Compensation

Act (the "Longshore Act," or "LHWCA"), the DBA adopted the earlier

act by cross-reference, saying that "[e]xcept as herein modified,

the provisions of the [Longshore Act], as amended, shall apply in

respect to the injury or death of any employee" within the scope of

the DBA. DBA § 1(a), 42 U.S.C. § 1651(a).

In 1941, compensation decisions under the Longshore Act

were made by deputy commissioners whose decisions were then

initially reviewed by the district court located in the district

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where the injury or death occurred. 33 U.S.C. § 921(b) (1940).

But because the harms under the DBA would in many cases occur

outside the United States where no district court had jurisdiction,

the DBA provided that judicial review of DBA awards should commence

"in the United States district court of the judicial district

wherein is located the office of the deputy commissioner whose

compensation order is involved," DBA § 3(b), 42 U.S.C. § 1653(b).

The "as amended" language in section 1 of the DBA has

been regularly read to mean that the DBA would incorporate "not

only the version of the [Longshore Act] in force at the time the

DBA was enacted, but all subsequent LHWCA amendments as well."

E.g., AFIA/CIGNA Worldwide v. Felkner, 930 F.2d 1111, 1113 n.3 (5th

Cir.), cert. denied, 502 U.S. 906 (1991). Thus, presumptively a

change Congress thinks suitable for the Longshore Act also applies

to the DBA, unless otherwise provided in the new Longshore Act

amendment. And Congress included no such provision precluding

application to the DBA when, in 1972, it amended the Longshore Act

to modernize the ordinary scheme for awarding compensation.

Under the 1972 amendments, the district director is

empowered to refer cases to an administrative law judge, who then

holds a formal hearing and makes the initial decision, subject to

further administrative review by a Benefits Review Board.2 The

2
LHWCA § 19(c)-(d), 33 U.S.C. § 919(c)-(d) (hearings); id. §
921(b), 33 U.S.C. § 921(b) (Benefits Review Board); see also 20
C.F.R. § 702.301 (formal hearing on "genuine dispute of fact or law

-4-
Board's decision, in turn, is reviewed not in the district court

but instead in the circuit court where the injury occurred.

Longshoremen's and Harbor Workers' Compensation Act Amendments of

1972, Pub. L. No. 92-576, §§ 14-15, 86 Stat. 1251, 1261 (codified

as amended at 33 U.S.C. §§ 919(d), 921(b)-(c)).

This created a tension because the Longshore Act now

embodied the increasingly common scheme for judicial review of

administrative agency action and the Longshore Act changes

presumptively carry over to the DBA, but Congress seemingly

overlooked and did not repeal the earlier DBA provision for

judicial review of DBA compensation decisions in the local district

court. In resolving this tension, the circuit courts are now

almost evenly split on whether initial judicial review of DBA

awards should be in the district or the circuit court.3

This circuit, e.g., Air America, Inc. v. Director, Office

of Workers' Compensation Programs, 597 F.2d 773, 775 (1st Cir.

1979), and the Supreme Court, Director, Office of Workers'

which cannot be so disposed informally"); Roberts v. Sea-Land
Servs., Inc., 132 S. Ct. 1350, 1355 (2012) (describing process).
3
Four circuits endorse review by the district court, ITT Base
Servs. v. Hickson, 155 F.3d 1272, 1275 (11th Cir. 1998); Lee v.
Boeing Co., 123 F.3d 801, 805 (4th Cir. 1997); AIFA/CIGNA
Worldwide, 930 F.2d at 1116; Home Indem. Co. v. Stillwell, 597 F.2d
87, 89 (6th Cir.), cert. denied, 444 U.S. 869 (1979), and three by
the court of appeals, Serv. Emps. Int'l, Inc. v. Dir., Office of
Workers' Comp. Programs, 595 F.3d 447, 452-55 (2d Cir. 2010);
Pearce v. Dir., Office of Workers' Comp. Programs (Pearce II), 647
F.2d 716, 720 (7th Cir. 1981); Pearce v. Dir., Office of Workers'
Comp. Programs (Pearce I), 603 F.2d 763, 766-71 (9th Cir. 1979).

-5-
Compensation Programs v. Rasmussen, 440 U.S. 29, 35 (1979), have

both assumed jurisdiction over appeals of DBA compensation awards

after 1972 that never passed through the district court. But in

neither these or other like instances did either court pass from

assumption to express consideration of jurisdiction, so strictly

speaking we are not bound to find jurisdiction in this case. Ariz.

Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436, 1448 (2011).

Nevertheless, the Defense Base Act can be legitimately

read to confer such jurisdiction upon us, and this reading accords

with the overall congressional policy reflected in the 1972

Longshore Act amendments. Congress likely gave no thought at all

to the wrinkle that concerns us; but, where statutory language

permits a given reading and Congress' policy will be fostered by

it,4 we think that reading should prevail--even if, as here, that

statutory language would also permit a contrary reading at odds

with Congress' statutory policy.

The circuits that insist on district court jurisdiction

have done so because they deem this compelled by the original DBA

proviso that the Longshore Act, including any subsequent

4
The "main reason" for the 1972 Longshore Act amendments was
"to obviate the increased litigation costs and the unwarranted
expenditure of court time under the old system." Ramirez v. Toko
Kaiun K.K., 385 F. Supp. 644, 649 (N.D. Cal. 1974); see also Day v.
James Marine, Inc., 518 F.3d 411, 417 (6th Cir. 2008)
("streamlining of the administrative process in 1972"); S. Rep. No.
92-1125, at 4 (1972) ("crowding of court calendars" under pre-1972
Longshore Act).

-6-
amendments, applies "[e]xcept as herein modified." Because the DBA

did adopt a separate provision for district court review where the

compensation decision was made, these circuits see the just quoted

"except" language as freezing in amber, and insulating from the

1972 Longshore Act amendments, the entire subject of judicial

review of Review Board compensation decisions in DBA cases. See,

e.g., Lee v. Boeing Co., 123 F.3d 801, 805 (4th Cir. 1997).

By contrast, the Second Circuit, favoring jurisdiction in

the circuit courts, offers a plausible alternative reading. See

Serv. Emps. Int'l, Inc. v. Dir., Office of Workers' Comp. Programs,

595 F.3d 447, 452-55 (2d Cir. 2010). Judge Miner pointed out that

when Congress initially adopted the Longshore Act scheme for DBA

awards in 1941, the statute already provided for review of a deputy

commissioner's decisions by the district court; section 3(b) of the

DBA did no more than identify for the DBA awards a different

venue--the locus of the award (for DBA awards) rather than the

locus of the injury (for Longshore Act awards). Id. at 454.

So read, the only thing frozen in amber by the "[e]xcept

as herein modified" qualification is the specification of the

reviewing court's location; and when Congress decided in 1972 that

the proper court initially to review compensation orders should be

the circuit rather than the district court, the modification is

fully respected by providing that the location of the reviewing

court (now circuit rather than district) shall be the one with

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authority where the initial compensation order was filed, as it was

here.

This approach maintains, so far as possible, the

congruence between the two schemes otherwise conjoined in 1941.

And Congress' overall policy intentions can hardly be open to

doubt: because a new layer of administrative review is now

provided for DBA as well as Longshore Act award decisions and

because judicial review will in both cases be on the administrative

record, district court review--whether of DBA or Longshore

compensation rulings--provides no benefit but merely adds expense

and delay in getting around to a circuit court decision. Lee, 123

F.3d at 808 (Hall, J., dissenting).

The obvious efficiency of bypassing the district court

likely explains why in this case the claimant, the company and the

Department of Labor, while not all agreeing on the merits, all

favor direct review jurisdiction in the circuit court. It explains

too why this circuit and the Supreme Court found it easy to assume

such direct review jurisdiction. In sum, this is a permissible

reading as well as the reading that Congress would have wished us

to give a complex set of provisions where loose ends are almost

unavoidable. If the case had gone to the district court in Boston,

our decision here on the merits would be exactly the same but

arrive much later.

-8-
 Turning then to the merits, the Longshore Act requires

covered employers to compensate employees and their dependents for

any "accidental injury or death arising out of and in the course of

employment," as well as any "injury caused by the willful act of a

third person directed against an employee because of his

employment," LHWCA § 2(2), 33 U.S.C. § 902(2); LHWCA § 9(b)-(d), 33

U.S.C. § 909(b)-(d); see also O'Keeffe v. Smith, Hinchman & Grylls

Assocs., Inc., 380 U.S. 359, 360-361 (1965) (application to DBA

case).

Section 3(c) of the Longshore Act (which likewise applies

to DBA cases, e.g., Eysselinck v. Dir., Office of Workers' Comp.

Programs, 392 F. App'x 262, 264 (5th Cir. 2010)), provides that

"[n]o compensation shall be payable if the injury was occasioned

solely by the intoxication of the employee or by the willful

intention of the employee to injure or kill himself or another," 33

U.S.C. § 903(c), although a rebuttable presumption exists that the

injury was not due to intoxication or suicide, LHWCA § 20(c)-(d),

33 U.S.C. § 920(c)-(d). Finally, it is enough to connect

employment with a suffered harm if the harm arose out of a "zone of

special danger" created by "the obligations or conditions of

employment."5

5
O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 507
(1951) (internal quotation marks omitted). This doctrine too
applies to DBA claims, e.g., Gondeck v. Pan Am. World Airways,
Inc., 382 U.S. 25, 27-28 (1965); O'Keeffe, 380 U.S. at 362-64. Its
precise scope, developed in other cases, remains to be considered

-9-
 After filing her claim, Terri Truczinskas established a

"prima facie case" by making two required but relatively easy

showings: (1) that Michael Truczinskas had sustained "physical

harm" and (2) that "conditions existed at work which could have

caused the harm." Bath Iron Works Corp. v. Preston, 380 F.3d 597,

605 (1st Cir. 2004) (citation omitted). When the ALJ came to

consider Terri Truczinskas' claim for compensation, she easily

found that the prima facie case had been established.

Michael Truczinskas was stationed in the northwest region

of Saudi Arabia, a country in which terrorists and insurgent groups

have carried out attacks against westerners; he lived inside a

guarded GD compound; and he never ventured into the city of Tabuk

alone because he considered it a "fairly dangerous place to be."

Truczinskas' co-workers shared similar safety concerns. This did

not require, nor did the ALJ find, evidence that any such dangers

had caused Truczinskas' death; it was enough that the dangers

existed.

The claimant then enjoyed the benefit of several

statutory presumptions, two of which are relevant here:

-a presumption "[t]hat the claim comes within
the provisions of [the Act]," LHWCA § 20(a),
33 U.S.C. § 920(a) (the "section 20(a)
presumption"), and

-a presumption, already noted, "[t]hat the
injury was not occasioned by the willful

below.

-10-
 intention of the injured employee to injure or
kill himself or another," LHWCA § 20(d), 33
U.S.C. § 920(d) (the "section 20(d)
presumption").

It was then up to GD to identify "substantial evidence"

to rebut the statutory presumption of coverage and, to the extent

that the employer relied on suicide as a non-covered cause, the

statutory presumption against suicide. Bath Iron Works Corp. v.

Fields, 599 F.3d 47, 53 (1st Cir. 2010); see also LHWCA § 920, 33

U.S.C. § 920. In this context, "substantial evidence" means "more

than a scintilla," but it "certainly does not approach the

preponderance-of-the-evidence standard normally found in civil

cases." Bath Iron Works Corp. v. U.S. Dep't of Labor, 336 F.3d 51,

57 (1st Cir. 2003) (internal quotation marks omitted); accord

Sprague v. Dir., Office of Workers' Comp. Programs, 688 F.2d 862,

865-66 (1st Cir. 1982).

The ALJ found that the presumptions had been rebutted by

GD's proffer of evidence that could persuade a reasonable

factfinder that Michael Truczinskas had committed suicide. The

primary witness for GD was Dieter Wolf, a co-worker of Michael

Truczinskas who, like the decedent, lived inside the GD compound in

Tabuk. Wolf testified that the GD compound was gated and guarded

and that cameras surveilled the outside walls. He also testified

that a woman named Cindy Tan often stayed with Michael Truczkinskas

at the latter's villa inside the GD compound and that Michael

Truczinskas said that "he was in love with her."

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 On the evening of December 4, 2008, Wolf hosted a

birthday party at his villa for one of his wife's friends; he

invited Michael Truczinskas and Cindy Tan to the party, and Michael

Truczinskas came over to Wolf's villa around 9 p.m. According to

Wolf, Michael Truczinskas "said hello to everybody right quick, and

left" after only 10 or 15 minutes; "he seemed like he was thinking

about something," but Wolf did not ask Michael Truczinskas what

preoccupied him.

According to Wolf's testimony, Cindy Tan came running to

Wolf's villa at 5:30 a.m. the next morning, beat on the door and

said that Michael Truczinskas had hanged himself. Wolf then ran

over to Michael Truczinskas' villa and found Truczinskas hanging

from a cross-beam with a nylon rope tied around his neck in the

shape of a noose, with a chair located nearby, but with his feet on

the floor. According to Wolf, Michael Truczinskas was wearing pink

or red toenail polish, women's makeup and a pair of blue

sweatpants.6

Wolf said that in trying to rescue Michael Truczinskas

from a hanging position, he cut himself but ultimately managed to

free Truczinskas from the noose. Wolf said that he then ran to get

his car while Cindy Tan attempted to perform CPR on Michael

6
GD also presented the testimony of Christopher Hansen, a GD
accountant who assisted in the "pack-out" of Michael Truczinskas'
villa following the occupant's death. Among the items that Hansen
said he found at the villa were three women's wigs and women's
clothes and underwear.

-12-
Truczinskas. Wolf, along with two nurses who had stayed at his

villa the previous night and a U.S. Army master sergeant, drove

Michael Truczinskas to a hospital six or eight minutes away. A

doctor at the hospital pronounced Truczinskas dead shortly

afterwards from asphyxiation.

At the presumption-rebuttal stage, the credibility of

the witnesses is not in issue, Fields, 599 F.3d at 55; Bath Iron

Works Corp. v. Dir., Office of Workers' Comp. Programs, 137 F.3d

673 (1st Cir. 1998), and the ALJ concluded that GD had rebutted the

section 20(a) presumption of coverage and the section 20(d)

presumption against suicide. She said that Wolf's testimony as to

how he found the employee is evidence which "a reasonable mind

might accept as sufficient to support a finding" that the

employee's death was the result of suicide. Cf. Fields, 599 F.3d

at 55 (employing the quoted language).

Having determined that GD's evidence was sufficiently

substantial to rebut the presumptions--which then vanish from the

case, Fields, 599 F.3d at 53--the ALJ moved to the third stage of

the burden-shifting process, at which the claimant bears the burden

of showing by a preponderance of the evidence on a clean slate that

the injury is covered under the compensation statute. Id. at 53;

United States v. Keller, 38 F.3d 16, 25 (1st Cir. 1994). Taking

into account Terri Truczinskas' alternative theories, the ALJ

concluded that she had failed to establish coverage.

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 Terri Truczinskas appealed to the Review Board which, by

a 2-1 vote, upheld the denial of compensation. The Review Board

agreed that the section 20(a) presumption of coverage had been

refuted by GD's proffer; although it did not specifically say that

the section 20(d) presumption against suicide had been rebutted, it

agreed with the ALJ that the record could support the inference of

suicide. And once suicide surfaced as a plausible possible cause

of death (although not the only possible cause), the section 20(d)

presumption fell out of the case. Del Vecchio v. Bowers, 296 U.S.

280, 286 (1935).

However, the Review Board remained guarded about

expressing a definitive judgment on the actual cause of death,

concluding that Terri Truczinskas had failed to carry her burden of

establishing that her late husband's death resulted from a cause

that would be covered under the statute. Put differently, a

reasonable factfinder could conclude, based on the record, that

Michael Truczinskas' death could be explained by non-covered

causes, thus rebutting any presumption and leaving the burden on

the claimant, and that none of Terri Truczinskas' suggested

hypotheses that might entail coverage had any serious support in

the record.

On judicial review of the Benefits Review Board and ALJ

decisions, we agree that the denial of coverage was reasonable and

supported by the record, O'Keeffe, 380 U.S. at 361-62, and no error

-14-
of law was committed. See Sprague, 688 F.2d at 865 ("it is

immaterial that the facts permit diverse inferences as long as

those drawn by the ALJ are supported by evidence"). Suicide is one

possible explanation for Michael Truczinskas' death, and one other

related possible explanation is not entirely speculative and

likewise would not give rise to coverage, namely, misadventure.7

The ALJ said that the cross-dressing activity and the alleged

affair with Cindy Tan may have generated "internal conflict,"

explaining suicide; this same evidence makes the misadventure

explanation colorable as well.

We start with the presumption against non-coverage.

Although Saudi Arabia may well pose dangers, Michael Truczinskas

was in his premises inside an elaborately guarded compound with no

indication of any intrusion by outsiders; the incident was reported

by his girlfriend; and he was found hanging by Wolf with death

later shown to be caused by asphyxiation. Nothing beyond pure

speculation inculpates his girlfriend, who according to Wolf's

testimony said that Michael Truczinskas had hanged himself. Nor

7
Gillespie v. Gen. Elec. Co., 21 Ben. Rev. Bd. Serv. (MB) 56,
1988 WL 232796, at *1-2 (1988), aff'd mem., 873 F.2d 1433 (1st Cir.
1989) (coverage denial where employee died "while attempting to
temporarily asphyxiate himself as part of an autoerotic activity").
Accidental strangulation in the course of pleasure-seeking
activities gone awry is not a rare event. See generally Lonergan
v. Reliance Std. Life Ins. Co., No. CA 96-11832-PBS, 1997 U.S.
Dist. LEXIS 24075, at *2-3 (D. Mass. May 29, 1997) (statistics on
autoerotic asphyxiation as cause of death).

-15-
would murder by a jealous mistress itself constitute a covered

cause.8

At this point the two obvious substantial possibilities

were two non-covered causes: suicide and misadventure. This was

entirely sufficient to counter the presumption against coverage

and, as the suicide possibility was a realistic one (and no covered

alternative was obvious), to refute that presumption as well.

Although the "substantial evidence" test sounds demanding, it

merely requires evidence that "could satisfy a reasonable

factfinder" that the claimant's injury was attributable to a non-

covered cause. Fields, 599 F.3d at 55; see also Bath Iron Works

Corp. v. Dir., Office of Workers' Comp. Programs, 137 F.3d at 675

("ALJ's choice of inferences is to be respected").

If there were any doubt, it is resolved by Del Vecchio v.

Bowers, 296 U.S. 280 (1935), reversing the D.C. Circuit in Bowers

v. Hoage, 76 F.2d 996 (D.C. Cir. 1935). Bowers, like Truczinskas,

was found dead in circumstances that could conceivably suggest

suicide ("killed by his own gun held in his own hand" while on his

employer's premises where his gun was kept), but without any

obvious motive for suicide ("many witnesses testified to his

cheerful disposition"). 76 F.2d at 997. The D.C. Circuit

8
Kirkland v. Dir., Office of Worker's Comp. Programs, No.
90-1267, 1991 U.S. App. LEXIS 2066, at *4-5 (D.C. Cir. Feb. 7,
1991) (per curiam) (DBA does not cover death of employee "murdered
by his jealous mistress") (citing Trans-Asia Eng'g Assocs., Inc. v.
Reichart, BRB No. 101-73 (Ben. Rev. Bd., June 25, 1973) (slip
op.)).

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concluded that "the evidence is at least as consistent with

accident as with suicide," and accordingly, that the presumption of

coverage and the presumption against suicide in 33 U.S.C. § 903

"must turn the scale" in the claimant's favor. Id.

The Supreme Court reversed. It said that the fact that

the fatal shot appeared to be self-inflicted admitted two

alternatives: "either the decedent accidentally killed himself, or

he committed suicide." 296 U.S. at 285. Plainly deeming the

latter possibility sufficiently potent, the Court held that the

D.C. Circuit had mis-relied upon the statutory presumption against

suicide, the "only office" of which is "to control the result where

there is an entire lack of competent evidence." Id. at 286. Once

countered by a reasonable possibility of suicide, the presumption

dropped out of the case entirely, leaving it to be decided on the

evidence offered by each side. Id. at 286-87.

Where coverage or non-coverage is to be decided on the

merits, the burden of proof to show a covered cause or set of

causes by a preponderance of the evidence rests upon the claimant.

Dir., Office of Workers' Comp. Programs v. Greenwich Collieries,

512 U.S. 267, 278 (1994). Here, some evidence presented at the

formal hearing weighs against the suicide explanation. Several

witnesses testified that Michael Truczinskas was "upbeat" or "very

low-key and happy" before his death, and Terri Truczinskas

-17-
testified that her husband was planning a trip home and had already

begun to purchase Christmas gifts for his family.

But neither suicide nor misadventure is ruled out by the

fact that Michael Truczinskas was discovered with his head in a

noose but his feet on the floor, nor by the absence of a suicide

note, by no means universal in suicide cases,9 and hardly to be

expected if the cause were misadventure. In all events, the

probability of a covered cause, as against realistic possibilities

plainly present in this case, depends on whether hypothetical

possibilities have support in evidence in the case at hand. So far

as appears there is no evidence of a covered cause.

To carry her burden and show the denial unreasonable,

Terri Truczinskas has offered a number of theories to explain how

her husband's death may have had the requisite connection to his

work as a military trainer in Tabuk. These include the following:

-that her husband may have been killed by
conservative Muslim vigilantes who were
offended by his alleged extramarital affair or
alleged cross-dressing;

-that her husband may have learned that one of
his co-workers was involved in arms smuggling
or selling military intelligence, that the co-
worker may have killed Michael Truczinskas to
silence him, and that GD may have been
complicit in the cover-up; and

-that her husband had been investigating "a
threat" to Americans in the area and that he

9
See, e.g., Scanlon v. Harkleroad, 740 F. Supp. 2d 706, 723
(M.D.N.C. 2010) (in cases of suicide, "more common that a suicide
note is not left" than that it is).

-18-
 had "offended the Saudis" in the course of the
investigation; and that Michael Truczinskas'
death might have been related to this
investigation.

But she admits that she has "no evidence" of arms

smuggling or espionage or attacks on GD employees by roving

vigilantes. She presented testimony from an "expert" in Middle

Eastern studies opining that these theories were "not far-fetched,"

but offering little more. Given the protected environs of the base

and lack of evidence, the ALJ and Review Board could not easily

have credited all or any of these theories in preference to those

positing that Michael Truczinskas had caused his own death, whether

deliberately or not.

Terri Truczinskas also relies on the doctrine, already

mentioned, that a harm may be covered as employment related if it

derives from the employee's presence in a "zone of special danger"

but she failed to establish any such derivation here. Neither

suicide in the ordinary case, 33 U.S.C. § 903(c), nor harm

"resulting from recreational activities that are neither reasonable

nor foreseeable," Kalama Servs., Inc. v. Dir., Office of Workers'

Comp. Programs, 354 F.3d 1085, 1091-1092 (9th Cir.), cert. denied,

543 U.S. 809 (2004), fall within the scope of the zone-of-special-

danger doctrine. See also Gillespie v. Gen. Elec. Co., 21 Ben.

Rev. Bd. Serv. (MB) 56, 1988 WL 232796, at *1-2 (1988), aff'd mem.,

873 F.3d 1433 (1st Cir. 1989).

-19-
 The dissenting Review Board member made a number of

points, several already discussed, but none undermines the evidence

and inferences supporting the majority's conclusion. The dissenter

thought (incorrectly, see Swanson, Chamelin, Territo & Taylor,

Criminal Investigation 294 (10th ed. 2009)), that the position of

Michael Truczinskas's body wholly negated the possibility of

suicide; and anyway suicide is not the only plausible non-covered

explanation. The dissenter also expressed doubts about Wolf's

credibility but not any evidence that seems to us substantial.10

Finally, the dissenting member emphasized the fact that

the Saudi police still have not closed their investigation into

Michael Truczinskas' death; she suggested that this fact "is

entitled to determinative weight in this case," as it indicates

that the police force was unable to conclude that the death was due

to suicide. But the failure of the claim depends not on proof that

the death was suicide but on Terri Truczinskas’ inability to

establish a likely cause of death covered by the DBA.

Michael Truczinskas' early death was a tragedy; and his

widow is a sympathetic case for compensation. But the Defense Base

Act, like the Longshore Act, "is not the equivalent of health or

10
According to the dissenting judge, "not only have Saudi
police interrogated Wolf repeatedly, they have also taken blood
samples from him, thereby suggesting questions about his
involvement in [Michael Truczinskas]' death." Given that Wolf was
first on the scene and had blood on him, this is hardly surprising,
and nothing contradicted evidence that he was summoned to the scene
after the fatal event.

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life insurance," see LeBlanc v. Cooper/T. Smith Stevedoring, Inc.,

130 F.3d 157, 160 (5th Cir. 1997) (quoting McNeelly v. Sheppeard,

89 F.2d 956, 958 (5th Cir. 1937)). Absent a showing that the

employee's injury arose from employment or from a "zone of special

danger" related to employment, the DBA provides no coverage.

The petition for review is denied.

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