Owcp

Schwirse v. Director, Office of Workers' Compensation Program

Good Law
736 F.3d 1165·2013 WL 3840332·2013 U.S. App. LEXIS 15283
United States Court of Appeals for the Ninth CircuitJuly 26, 201311-73172California2,737 words

Opinion

Opinion

Smith, J.

33 U.S.C. § 903 (c) precludes compensation to an injured employee if “the injury was occasioned solely by [his] intoxication.” This language precludes recovery where the intoxication of the employee was the sole “legal cause” of the injury. “Legal cause” is the causal connection in fact, which extends not only to positive and active physical forces, but also to pre-existing passive conditions. Cf. Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 837-39 , 116 S.Ct. 1813 , 135 L.Ed.2d 113 (1996); White v. Roper, 901 F.2d 1501, 1505-06 (9th Cir.1990). The Benefits Review Board (BRB) did not err when it affirmed the administrative law judge’s (ALJ) denial of Schwirse’s claim for compensation under the Longshore and Harbor Work ers’ Compensation Act (LHWCA) due to intoxication. We have jurisdiction to review the petition under 33 U.S.C. § 921 (c); we deny the petition for review.

FACTS

Gary Sehwirse was employed by Marine Terminals Corporation (MTC) as an A-registered longshoreman. On January 8, 2006, Sehwirse drank two beers before going to work at 8:00 a.m. Between 8:00 a.m. and 12:00 p.m., he drank an additional three beers. At lunch, Sehwirse consumed four to five more…

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