LHWCA: Ninth Circuit Agrees that Injury Was Caused By Intoxication, Not Concrete and Metal Slab Onto Which Claimant Fell

Under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), no compensation is payable “if the injury was occasioned solely by the intoxication of the employee” [see 33 U.S.C. § 903(c)]. In Schwirse v. Director, Office of Workers’ Comp. Programs, 2012 U.S. App. LEXIS 22482 (Oct. 23, 2012), injured worker argued that the concrete and metal slab, upon which he fell, was the cause of his injury, not his intoxication. The Administrative Law Judge and the Benefit Review Board declined to agree with the worker’s position and found that he was not entitled to benefits.  On appeal, the 9th Circuit Court of Appeals found no error in the Benefit Review Board’s interpretation of the term “injury” to mean the cause of the accident rather than the mechanism of the injury. Citing TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 151 L. Ed. 2d 339 (2001), the court reasoned that including the mechanism of the injury as a cause in addition to intoxication would render the intoxication exception “insignificant, if not wholly superfluous.”  

The court stressed that in considering a claim for disability benefits under the LHWCA, the BRB follows a three part standard of review. First, the claimant must show that he sustained an injury in the course and scope of his employment. Second, once such an injury is established, a presumption arises that the injury was not occasioned solely by intoxication. Therefore, the employer must present “substantial evidence” to rebut that presumption. Lastly, if the employer successfully rebuts the presumption, the ALJ must then evaluate whether the claimant met his burden of persuasion by a preponderance of the evidence that the record as a whole justifies awarding benefits.

The 9th Circuit observed that the record contained substantial evidence to support the ALJ’s conclusion that the worker’s employer had rebutted the presumption that intoxication was not the sole cause of his injury. The employer did not have to “rule out” all other possible causes of injury in order to rebut the presumption under 33 U.S.C. § 920(c). The court added that to require an employer to “rule out” all other possible causes would conflict with the statutory language and applicable standard of review.