Ninth Circuit Construes Longshore Act’s Intoxication Defense Provisions

The Longshore Act provides that no compensation shall be payable if the injury “was occasioned solely by the intoxication of the employee” [33 U.S.C.S. § 903(c), emphasis added]. The Ninth Circuit Court of Appeals recently denied review of a Benefits Review Board decision that denied benefits to a longshore worker who, prior to and during his work day, consumed a substantial amount of alcohol, decided to relieve himself over the bull rail of his employer’s facility and, while doing so, fell over the rail onto a concrete and steel ledge approximately six feet below, sustaining injuries [Schwirse v. Director, Office of Workers’ Comp. Progs., 2013 U.S. App. LEXIS 15283 (9th Cir., July 26, 2013)]. The Ninth Circuit discounted the worker’s argument that his injuries were not “solely” caused by his intoxication, that they were caused, at least in substantial part, by the hard surface onto which he fell.

Following the incident, the worker was transported to a hospital where tests revealed he had a blood alcohol level of .25 (more than three times the legal limit for operating a motor vehicle). He also tested positive for cannabis ingestion. The Ninth Circuit agreed that “occasioned solely by” intoxication meant that the “legal cause” of the injury was intoxication, regardless of the surface material of the landing on which the intoxicated person fell [see Larson’s Workers’ Compensation Law, § 36.03].

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