Leeward Marine, Inc. v. Director, Office of Workers' Compensation Program , 694 F. App'x 627 ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 16 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEEWARD MARINE, INC.; HAWAI’I No. 16-72242
EMPLOYERS’ MUTUAL INSURANCE
CO., BRB No. 15-0276
Petitioners,
MEMORANDUM*
v.
DIRECTOR, OFFICE OF WORKERS’
COMPENSATION PROGRAM;
WILLIAM B. KEALOHA,
Respondents.
On Petition for Review of an Order of the
Benefits Review Board
Submitted August 4, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, and REINHARDT and PAEZ, Circuit Judges.
Leeward Marine, Inc. and Hawai’i Employers Mutual Insurance Co.
(collectively “Leeward”) petition for review of the Benefits Review Board’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
decision affirming the administrative law judge’s (“ALJ”) award of benefits to
William Kealoha under the Longshore and Harbor Workers’ Compensation Act, 33
U.S.C. §§ 901 et seq. (“Longshore Act”). We have jurisdiction under 33 U.S.C. §
921(c), and we deny the petition for review. Because the parties are familiar with
the facts and extensive procedural history of this case, we need not recount them
here.
“The Board must accept the ALJ’s findings of fact if they are supported by
‘substantial evidence.’” Stevedoring Servs. of Am. v. Price, 382 F.3d 878, 883 (9th
Cir. 2004) (citing 33 U.S.C. § 921(b)(3); Container Stevedoring Co. v. Dir., Office
of Workers Comp. Programs, 935 F.2d 1544, 1546 (9th Cir. 1991)). “We conduct
an independent review of the administrative record to determine if the Board
adhered to this standard.” Id. (citing Bumble Bee Seafoods v. Dir., Office of
Workers Comp. Programs, 629 F.2d 1327, 1329 (9th Cir.1980)). We review legal
conclusions of the Board de novo. Trachsel v. Rogers Terminal & Shipping Corp.,
597 F.3d 947, 949 (9th Cir. 2010) (citing Stevedoring, 382 F.3d at 883). “We
respect the Board’s interpretation, however, if it ‘is reasonable and reflects the
underlying policy of the statute.’” Stevedoring, 382 F.3d at 883 (quoting Kelaita v.
Director, Office of Workers Comp. Programs, 799 F.2d 1308, 1310 (9th Cir.
1986)).
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I
The Board did not err when it affirmed the ALJ’s decision on remand to
award benefits to Kealoha. Section 3(c) of the Longshore Act 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 first time this claim came before us, we held
“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.” Kealoha v. Dir., Office
of Workers Comp. Programs, 713 F.3d 521, 524–25 (9th Cir. 2013).
Contrary to Leeward’s argument, we did not “specifically narrow[] the
‘chain of causation test.’” Instead, on remand the ALJ was entitled to rely on
general tort principles. The ALJ did not err by relying on 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. See
Soileau v. Travelers Ins. Co., 198 So.2d 543, 545 (3d Cir. 1967) (stating that,
pursuant to the aggravation rule, a claimant may receive compensation “if [an]
injury causes, precipitates or aggravates the insanity or mental derangement, which
in turn causes a suicide”); see also, Brooks v. Indus. Com., 399 N.E.2d 603 (Ill.
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1979) (quotation omitted) (stating claimant’s preexisting condition did not break
the causal connection since “the law is clear that the aggravation or acceleration of
a preexisting disease is an injury which is compensable under the statute, if caused
by some accident occurring in the course of employment”).
II
Substantial evidence supports 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, 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. Leeward’s retained expert, Dr. George Bussey, acknowledged that the
stress caused by Kealoha’s upcoming deposition was “a contributing factor” to the
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stress Kealoha was experiencing at the time of his suicide attempt.1 Dr. Bussey
noted that additional stressors after Kealoha’s accident would have further
decreased his ability to handle the stress.
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 supports the
finding that the accident-related stressors were a cause of his attempted suicide.
1
Leeward argues that the ALJ erred by relying on litigation-induced stress
as a basis for finding Kealoha’s attempted suicide related to his employment
because stress from litigation is not compensable. Even if we were to find that
Kealoha’s litigation-induced stress was a non-compensable component of
damages, the fact that non-compensable stress may have affected Kealoha’s
psychological state does not preclude an award of benefits, so long as a job-related
incident meaningfully contributed to the attempted suicide. See MARK A.
ROTHSTEIN ET AL., EMPLOYMENT LAW Vol. II § 7.23 at 298 (West, 4th ed. 2009).
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III
Because the ALJ did not err in its causation finding and substantial evidence
supported her decision, the Board did not err by affirming the decision to award
benefits. Leeward argues that the presumption under 33 U.S.C. § 920(a) that a
claim for compensation falls within the provisions of the Longshore Act does not
apply here, and that even if the presumption applied, Kealoha did not meet his
burden of establishing a compensable injury. Even if we assume without deciding
that the presumption does not apply, Kealoha showed that the “injury and its
consequences directly resulted in [his] loss of normal judgment and domination by
a disturbance of the mind, causing the suicide.” Kealoha, 713 F.3d at 524.
Recovery under the Longshore Act is therefore appropriate. Each party shall bear
its own costs on appeal.
PETITION DENIED.
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