Intoxication defense: Claimant's "the ground caused my injury" argument loses

by Matthew H. Ammerman on April 22nd, 2013

Gary Schwirse's job at Marine Terminals was to remove cones and guide container trucks through the facility as part of unloading. On the date of his accident, he drank 2 beers before work, 3 beers during the morning shift, 4-5 beers at lunch, and the greater part of a pint of whiskey after lunch. He finished his work early and drank beer near the transport van. He walked away from the van to relieve himself and fell over a rail onto the concrete below. Schwirse sought LHWCA benefits for his injuries.

Schwirse had no recollection of the fall. The employer’s safety man investigated and saw no slippery substances, cones, or other obstructions near the site of the accident.

This may sound like an easy case. But it is not due to the employer's burden to prove the intoxication defense. The employer must clear two hurdles: (a) overcoming a presumption in favor of the worker that intoxication was not the sole cause; and, (b) meeting its burden of showing that intoxication was the sole cause of the injuries. 33 U.S.C. § 903(c).

Administrative Law Judge Torkington first rejected the employer's intoxication defense and awarded LHWCA benefits because of the lack of direct evidence of the chain of events and because his fall may have been caused by his carelessness. The Board reversed, however, holding that the judge failed to review all the relevant evidence. On remand, Judge Torkington found Schwirse’s claim was barred because his injury was due solely to intoxication, in part due to the evidence that Schwirse did not trip over a cone as he claimed. Claimant appealed.

The U.S. Court of Appeal for the Ninth Circuit affirmed Judge Torkington's denial of LHWCA benefits in a short, unpublished opinion. Schwirse argued that the concrete and metal slab upon which Schwirse fell was the cause of his injury not his intoxication. The Ninth Circuit panel rejected that argument because it would render the intoxication defense "insignificant, if not wholly superfluous." There was substantial evidence supporting Judge Torkington's finding that Marine Terminals rebutted the presumption of compensability, and that Marine Terminals did not have to rule out every other possible cause -- such as Schwirse's argument that the ground caused his injuries. The appeals court went on to say that there was sufficient evidence supporting the judge's finding that intoxication was the sole cause of Schwirse's injuries. The denial of LHWCA benefits was affirmed.

Schwirse v. Dir., OWCP, 496 Fed. Appx. 734 (9th Cir. October 23, 2012).


Posted in not categorized    Tagged with Intoxication defense, Longshore, presumption, LHWCA, longshore act

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