On July 26, 2013, the Ninth Circuit published a new Longshore and Harbor Workers’ Compensation opinion addressing injuries “occasioned solely by” intoxication. The facts of the opinion are simple. After the claimant drank seven to eight bears and half a pint of whiskey between 8:00 a.m. and 4:30 p.m., he fell over a railing and injured himself. The question was whether the injury suffered by the intoxicated claimant (who had a .25 blood alcohol level) was “occasioned solely by” intoxication. Here is the court’s summary:
Longshore and Harbor Workers’ Compensation Act
Denying the petition for review, the panel held that the Benefits Review Board did not err when it affirmed the administrative law judge’s denial of petitioner’s claim for compensation under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) due to intoxication.
The [Ninth Circuit] panel held that the Board did not err in interpreting 33 U.S.C. § 903(c) of the Act, which bars compensation if an “injury was occasioned solely by” the intoxication of the employee. The panel held that an injury “occasioned solely by” intoxication means that the legal cause of the injury was intoxication, regardless of the surface materials of the landing on which the intoxicated person fell. The panel therefore rejected petitioner’s broader definition of the term injury, which suggested that because claimant hit a concrete surface rather than the river or a featherbed, his injury was not solely occasioned by intoxication.
The panel held that the Board correctly concluded that substantial evidence in the record supported the ALJ’s conclusion that petitioner’s employer rebutted the statutory presumption that intoxication was not the sole cause of petitioner’s injury.
The court’s summary does a good job of defining the case in a nutshell, but it leaves out a lot of the very important “nuts and bolts” of the statutory interpretation decision. Here, the Ninth Circuit started with Section 3(c) of the LHWCA, which states that “[n]o compensation shall be payable if the injury was occasioned solely by the intoxication of the employee.” The court then looked at the definition of “injury,” which the LHWCA defines as: “[A]ccidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.” See 33 U.S.C. § 902(2).
The Ninth Circuit reasoned that the term “injury” was modified by the phrase “occasioned solely by” such that it had to determine whether the claimant’s intoxication was the “legal cause” of the injury. The court looked to admiralty decisions for guidance about proximate cause and then it came up with a two-part test: a court “determine[s] whether intoxication was the only or ‘sole’ cause by (1) looking at the act that caused the accident and (2) determining whether there were any superseding or intervening causes that contributed to the injury.”
What must an employer do to satisfy this test? First, establish “that the employee was drunk at the time of the accident.” Second, establish that the employee “fell owing to his drunkenness and was injured.”
The second footnote explains when the employer establishes the intoxication defense. The LHWCA has a three-step process:
First, the claimant must show that he sustained an injury in the course and scope of his employment. If successful in doing so, a presumption arises that the injury was not occasioned solely by intoxication (along with other presumptions, see 33 U.S.C. § 920).
Second, after the claimant satisfies their initial burden, the employer must present substantial evidence to rebut the presumption. In a case such as this that means that the employer must present substantial evidence that the claimant’s injury was occasioned solely by intoxication.
Third, if the employer successfully rebuts the presumption, then the presumption disappears from the claim. The ALJ will 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.”
Footnote 2 makes it clear that an employer introduces its intoxication defense during the second step of the three-step process. The “substantial evidence” that the employer produces to rebut the intoxication presumption should satisfy the two-part proximate cause test. In other words, “substantial evidence” will include evidence “that the employee was drunk at the time of the accident” and that the employee “fell owing to his drunkenness and was injured.” The evidence does not have to “rule out” other possible causes of the injury.
Ultimately, the Ninth Circuit held “that an injury ‘occasioned solely by’ intoxication means that the legal cause of the injury was intoxication, regardless of the surface material of the landing on which the intoxicated person fell.” This holding rejected the claimant’s plea for a broader “all-encompassing definition of the term injury.” As explained by the court, the claimant wanted to define the fall as an “accident” and the landing as an “injury.” The Ninth Circuit wasn’t having it–hence the featherbed jab:
Further, there is no question that a foreseeable consequence of falling is that one may hit the pre-existing surface material. It is also foreseeable that the surface material surrounding the dock was hard and would cause significant injury. A preference that one may fall on more forgiving material (such as a featherbed or water) does not alter the “legal cause” of the injury. Thus, absent evidence of the surface material being unforeseeably defective, the “legal cause” is limited to the reason for his fall and the foreseeable consequences of that fall.
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)