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Maritime Update: 9th Circuit Affirms Award of LHWCA Compensation Benefits for Suicide Attempt by Worker

William Schwartz - 

On August 17, the 9th Circuit Court of Appeals affirmed an award of compensation benefits in the case of Leeward Marine, Inc. et al v William B. Kealoha. The case involved an award of Longshore and Harbor Workers’ Compensation Act (“Longshore Act”) compensation benefits to a worker who attempted suicide. The employer contravened the claim for compensation benefits under Section 3(c) of the Longshore Act, which precludes compensation “if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.” 33 U.S.C. § 903(c).

The case had previously been up on appeal to the 9th Circuit Court of Appeals and then was remanded for further findings in light of their original opinion. In the first appeal, the appeals court concluded “that a suicide or injuries from a suicide attempt are compensable under the Longshore Act when there is a direct and unbroken chain of causation between a compensable work-related injury and the suicide attempt.”

After remand, the Administrative Law Judge (ALJ) relied on general tort principles and, more specifically, the “aggravation rule” to find that Kealoha had established that the accident was a causative factor in his attempted suicide and that a direct and unbroken causal chain was shown. The ALJ found under the “aggravation rule” that a claimant may receive compensation “if [an] injury causes, precipitates or aggravates the insanity or mental derangement, which in turn causes a suicide,” or an attempt at suicide.

Substantial evidence was presented to support the ALJ’s finding that the accident exacerbated Kealoha’s already weak impulse control and led, in part, to his attempted suicide. Kealoha offered the testimony of an expert psychiatrist, Dr. David Roth, who diagnosed Kealoha with inter alia, a major depressive disorder due to multiple traumas and chronic pain, post-traumatic stress disorder and a cognitive disorder. Dr. Roth opined that chronic pain from the fall and stress from the resulting litigation caused Kealoha to become increasingly depressed, angry and anxious, and worsened his already poor impulse control such that he attempted suicide. Even the employer’s retained expert, Dr. George Bussey, acknowledged that the stress caused by Kealoha’s upcoming deposition was “a contributing factor” to the stress Kealoha was experiencing at the time of his suicide attempt.

Moreover, Kealoha testified that, after the accident, he felt sad all the time and had decreased interest in his usual activities. He also testified that, after the accident, he fought more with his wife, his alcohol and marijuana use increased, and he experienced ongoing knee pain. Kealoha’s wife testified that his temper problems were worse after the accident and that Kealoha experienced nightmares as his deposition approached. She testified that she thought Kealoha used alcohol and marijuana to provide relief from his knee pain. Though many stressors in Kealoha’s life were not related to the accident, substantial evidence was presented to support the ALJ’s finding that the accident-related stressors were a cause of his attempted suicide.

It should be noted that the standard of review by an appeals court is to determine if the ALJ and Benefits Review Board made findings of fact supported by ‘substantial evidence’; therefore, the sole purpose of the independent review by the appellate court was to determine if the administrative record adhered to this standard. Since such substantial evidence was shown, the decision was affirmed.

The full decision can be found here: http://cdn.ca9.uscourts.gov/datastore/memoranda/2017/08/16/16-72242.pdf

If you have any questions regarding this maritime matter, please contact Bill Schwartz at (504) 569-2900 or wschwartz@bhbmlaw.com.


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