A longshoreman fell from a dock while he was relieving himself. He applied for workers’ comp benefits, but his blood alcohol level at the time was .25. Did he get benefits?
Gary Schwirse worked for Marine Terminals Corp. in Oregon. On Jan. 8, 2006, Schwirse decided to urinate near the rail of an MTC dock. While doing so, he fell over the rail onto a concrete and steel ledge six feet below. Result: He suffered a severe scalp laceration to his right temple, but he also had a blood alcohol level of .25 (acute alcohol intoxication) and was found to have ingested pot.
How did he get the .25 BAL? He drank two beers before going to work at 8 a.m. Before noon, he drank three more beers. At lunch he consumed four to five more beers. That was it for the beer. Oh, but he topped it off with more than a half pint of whiskey before 4 p.m. His fall occurred at 4:30.
The company denied his request for workers’ comp benefits, noting the Longshore and Harbor Workers’ Compensation Act denies compensation if an “injury was occasioned solely by” the employee’s intoxication.
On Schwirse’s first appeal, an administrative law judge granted him workers’ comp, but that decision was overturned by the Benefits Review Board. He took his case to a federal court.
Schwirse’s argument to receive comp benefits: He claimed he had tripped over a bright orange warning cone. But his testimony regarding the cone changed over time.
He had a second argument: His injury wasn’t caused solely by his drunkenness. His injury was also caused by the concrete that he landed on.
Schwirse had used the same argument before the Benefits Review Board. The board rejected the argument, noting “if intoxication was the sole cause of the claimant’s fall, then intoxication also was the sole cause of the claimant’s injury.”
The federal court agreed with that interpretation and denied workers’ comp benefits for Schwirse.
Your company may not employ any longshoremen, but many states’ workers’ comp laws also have provisions to deny benefits if an employee was under the influence at the time of the injury, and that was the cause of the injury.
When you have someone with a BAL of .25, there’s no question whether an employee was under the influence. However, as recent cases have shown, that interpretation becomes more difficult when the substance in question is pot.
(Schwirse v. Marine Terminals Corporation, U.S. Circuit Court 9, No. 11-73172, 7/26/13)