November 30, 2017 Practice Points

Suicide Attempt Compensable under the LHWCA

The case arose from an accident in which a ship laborer fell from a barge to a dry dock landing on a steel floor.

By Nicholas J. Cenac

In a recent unpublished decision, the U.S. Ninth Circuit Court of Appeals denied review of a decision affirming an administrative law judge’s (ALJ) award of benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (LHWCA) to a claimant who attempted suicide following a workplace injury. Leeward Marine, Inc. v. Dir., Office of Workers' Comp. Program, 694 F. App'x 627, 629 (9th Cir. 2017).

This case arose from an accident that occurred in 2001, when a ship laborer fell 25 to 50 feet from a barge to a dry dock landing on a steel floor. This fall caused injuries to the worker’s head, chest, abdomen, knee, and back, as well as fractures to a rib and his scapula. The injured worker filed a claim for LHWCA benefits to compensate him for these injuries. Later, in 2003, the injured worker sustained severe head injuries after shooting himself in the head. He sought compensation for these secondary injuries under the LHWCA arguing that his suicide attempt resulted from the 2001 fall, and the litigation over compensation for same.

Initially, an ALJ denied the injured workers’ claim for benefits arising from his suicide attempt, finding that this attempt was not the “natural and unavoidable” result of the initial injuries because other, more significant, factors led to the suicide attempt. See Kealoha v. Dir., Office of Workers Comp. Programs, 713 F.3d 521, 522 (9th Cir. 2013). Alternatively, the ALJ found that these secondary injuries were not compensable because Section 3(c) of the LHWCA precludes compensation for an injury “occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself of another. Ibid; 33 U.S.C. § 903(c).

On appeal, the Benefits Review Board reversed the ALJ’s decision, noting that instead of applying the “natural and unavoidable” result standard, the ALJ should have afforded the injured worker a presumption that his suicide attempt was causally related to his fall pursuant to Section 920(a) of the LHWCA. Kealoha, 713 F.3d 522; 33 U.S.C. § 920(a). On remand, the ALJ found that compensation was nonetheless barred because the injured worker’s act was “intentional” and not the result of an “irresistible impulse,” noting that the worker spoke about committing suicide the night before, and the morning of, his attempted suicide. The Benefits Review Board affirmed this decision.

On appeal however, the Ninth Circuit distinguished two tests that have been applied by courts in various workers’ compensation cases confronted with this issue of post-accident suicides and suicide attempts. The first test identified, was the “chain of causation” test, which conditions compensation on “the existence of an unbroken chain of causation from the injury to the suicide.”  Kealoha, 713 F.3d 524 (citations omitted). The second test identified, was the “irresistible impulse” test, which conditions compensation on a finding that the initial workplace injury “causes insanity such that the employee takes his life through an uncontrollable impulse or in a delirium or frenzy without conscious volition to produce death, having knowledge of the physical consequences of the act…” Ibid. (internal quotation and citation omitted).

Having outlined the contours of these two tests, the Ninth Circuit noted that “in recent years… states have found that the chain of causation test better accords with principles of modern medicine.” Ibid. (internal quotation and citation omitted). It continued, commenting that “whether an employee committed or attempted suicide in a delirium or frenzy has no bearing on whether a work-related injury caused the suicide.” Ibid. (internal quotation and citation omitted). The court found that “when there is a direct and unbroken chain of causation between a compensable work-related injury and the suicide attempt,” the secondary injuries arising from the suicide or suicide attempt are compensable under the LHWCA. The court thus remanded this case ordering that the “chain of causation” test be applied to the facts presented therein.

On remand, the ALJ found that the claimant had established that his initial workplace accident was a causative factor in his attempted suicide, and that a direct and unbroken causal chain was proven. Accordingly, the ALJ found that the secondary injuries sustained by the claimant arising from his suicide attempt were compensable under the LHWCA. The Benefits Review Board subsequently affirmed this decision, and as stated above, the Ninth Circuit denied the employer’s petition for review of this decision. Whether this decision will be adopted in other circuits remains to be seen. That said, in the Ninth Circuit, under facts similar to those outlined in this case, it appears that injuries sustained as the result of a suicide or suicide attempt causally related to a workplace injury will be compensable under the LHWCA.

Nicholas J. Cenac is an associate with Degan, Blachard & Nash in New Orleans, Louisiania.

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