Claimant, a longshoreman who spent all morning and early afternoon consuming beer and whiskey, was injured when he fell over a railing ont a concrete and steel ledge six feet below. An ambulance took Claimant to the hospital where he was diagnosed with a severe scalp laceration, acute alcohol intoxication with a blood level of 0.22 and cannabis ingestion. Following two earlier hearings with an administrative law judge (“ALJ”), as well as an earlier appeal to the Benefits Review Board (“Board”), the case returned to the Board following the ALJ’s decision that Claimant’s injury was caused solely by his intoxication. On appeal, Claimant argued that an “employer must ‘rule out’ all other possible causes of injury before the intoxication defense of Section 3(c) is proven…and that, under this ‘ruling out’ standard, employer did not present substantial evidence to support the [ALJ’s] conclusion that compensation is barred under Section 3(c).”
Section 3(c) provides that “[n]o compensation shall be payable if the injury was occasioned solely by the intoxication of the employee….” Further, it is presumed that the injury was not occasioned solely by the injured employee’s intoxication. See 33 U.S.C. § 920. Therefore, the employer wanting to use the intoxication defense must produce evidence that intoxication was the sole case of the claimant’s injury.
The Board rejected Claimant’s “ruling out” argument. Instead, an employer must ultimately persuade an ALJ under the preponderance of the evidence standard that its evidence is more convincing. Here, the employer presented medical opinions and records, photographs and testimony noting Claimant’s intoxication and the non-hazardous nature of the area where Claimant fell. As for experts, the ALJ credited the employer’s expert testimony over the Claimant’s expert, who could not definitely state that Claimant’s injury was not due solely to intoxication. As an ALJ has the power to evaluate credibility, weigh evidence, and draw her own conclusions from the evidence, the Board upheld the rational decision of the ALJ. It was supported by substantial evidence and made in accordance with the law.
Schwirse v. Marine Terminals Corp., BRB No. 11-0119 (2011).
(Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
