Claimant, a ship laborer, was injured in 2001 when he fell 25 to 50 feet from a barge to a dry dock. He injured his head, abdomen, rib, and scapula, and he experienced knee and back pain. Two years later, Claimant “shot himself in the head, causing severe head injuries.” He requested benefits under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) for his suicide attempt, alleging that the attempt resulted from his 2001 fall and the litigation over that claim. The Administrative Law Judge (“ALJ”) initially denied benefits, reasoning that Claimant’s suicide was not the “natural and unavoidable” consequence of his fall; that Section 3(c) of the LHWCA precludes compensation for willfully injuring or killing one’s self; and that Claimant’s suicide attempt did not fall within the “irresistible impulse” exception to Section 3(c). The Benefits Review Board reversed and remanded.
Although the ALJ reversed course regarding the contribution of Claimant’s injury to his suicide, the ALJ nonetheless found that Claimant’s suicide attempt was not the result of an “irresistible impulse.” Claimant planned his suicide and made comments to loved ones about his suicidal thoughts. Because the suicide attempt was planned, the attempt could not have been an “irresistible impulse.” The Board affirmed and Claimant appealed to the Ninth Circuit.
The Ninth Circuit looked at two tests: the chain of causation test and the “irresistible impulse” test. The chain of causation test “conditions compensation on ‘the existence of an unbroken chain of causation from the injury to the suicide.'” If the chain of causation is present, then the suicide is not precluded by Section 3(c)’s willful intent to injure exclusion. In contrast, a suicide is compensated under the “irresistible impulse test” only if a work-related 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….” There should be a violent or eccentric method of self-destruction. Over time, the once-favored “irresistible impulse” test has lost ground in favor of the chain of causation test. Accordingly, the Ninth Circuit held:
Given the best-reasoned modern trend of case law, we hold 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. The claimant need not demonstrate that the suicide or attempt stemmed from an irresistible suicidal impulse. The chain of causation rule accords with our modern understanding of psychiatry. It also better reflects the Longshore Act’s focus on causation, rather than fault.
Opinion: I hope that the employer and carrier plan to request reconsideration en banc or file a petition for certiorari with the Supreme Court because this decision is troubling for a number of reasons. For instance:
- The Ninth Circuit incorrectly stated that the Fifth Circuit failed to decide the proper test for determining the compensability of a suicide or suicide attempt. It ignored Eysselinck v. Dir., OWCP, 392 Fed.Appx. 262 (5th Cir. 2010). In Eysselinck, the Fifth Circuit specifically applied the “irresistible impulse” test: “Eysselinck has the burden of proving the decedent’s suicide was the result of an irresistible impulse to kill himself.” Id. at 265. It looks like the Ninth Circuit just created a circuit split.
- One of the cases cited by the court in support of the chain of causation test actually looks like it supports the “irresistible impulse” test as part of a combination of the chain of causation and “irresistible impulse” tests. See Terminal Shipping Co. v. Traynor, 243 F.Supp. 915, 916 (D. Md. 1965). In Traynor, the district court stated: “It is sufficient for the purposes of our case to say that if the injury caused a mental disease or defect which in turn was responsible for Connelly’s impulse to take his own life and so far impaired his ability to resist that impulse that he was in fact unable to control it, and so took his own life, his suicide was not willful within the meaning of Section 3(b).” This, it looks like Traynor approves a two-step analysis to Longshore suicide claims. First, consider whether there is a chain of causation between the work injury and a mental disease or defect? Second, and only after the chain of causation is established, consider whether the mental disease or defect made impaired the injured workers ability to resist the impulse to commit or attempt suicide. Only satisfaction of both tests results in benefits.
- The Ninth Circuit did not address the many cases where the Board applied the “irresistible impulse” test. See, e.g., Konno v. Young Bros., Ltd., 28 BRBS 57 (1994) (“Where an employee’s death is not due to a ‘willful intent’ to commit suicide but results from an irresistible suicidal impulse resulting from a work-related condition, Section 3(c) does not bar the compensation claim.”); Maddon v. Western Asbestos , 23 BRBS 55 (1989) (“Where an employee’s death does not stem from a “willful intent” to commit suicide, but is instead caused by an irresistible suicidal impulse resulting from an employment related condition, Section 3(c) does not bar compensation.”). Will the Board limit Kealoha to the Ninth Circuit or will it apply the decision elsewhere–but presumably not the Fifth Circuit because of Eysselinck?
- How does one prove or disprove the “direct and unbroken chain of causation”? The Ninth Circuit cited state workers’ compensation cases, so LHWCA litigants should likely review relevant state compensation caselaw. One of the cases cited by the court, Vredenburg v. Sedgwick CMS, 188 P.3d 1084, 1090 (Nev. 2008), puts the burden on “the claimant to demonstrate that (1) the employee suffered an industrial injury, (2) the industrial injury caused some psychological condition severe enough to override the employee’s rational judgment, and (3) the psychological condition caused the employee to commit suicide.” See also Borbely v. Prestole Everlock, Inc., 565 N.E.2d 575 (1991) (requiring a showing that “the work-related injury caused the employee to become dominated by a disturbance of the mind of such severe as to override normal rational judgment….”). What condition is severe enough to override rational judgment? That is the fact-specific inquiry likely to lead to additional litigation in suicide claims.
- Does the Section 20(a) presumption apply to the suicide? Obviously the Section 20(d) presumption was resolved if the parties were litigating the cause of the suicide. And must the suicide be the natural or unavoidable consequence of the initial work-related injury? The Ninth Circuit does not really address those questions. The term “injury” means “accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally our of such employment or as naturally or unavoidably results from such accidental injury….” See 33 U.S.C. 902(2). If the suicide or suicide attempt resulted in injury, then the presumption may not apply, and coverage may not be afforded unless the suicide-related injuries naturally or unavoidably resulted because of the work injury. See, e.g., Amerada Hess Corp. v. Dir., OWCP, 543 F.3d 755, 763 (5th Cir. 2008) (“In sum, we hold that the statute does not support a presumption that any medical condition that an injured claimant suffers after a work-related injury is caused by the work-related injury. Furthermore, not all ‘secondary’ injuries are covered under the LHWCA simply because the claimant demonstrates a subsequent harm that could have stemmed from the covered injury. Instead, to receive benefits under the LHWCA for a subsequent injury, the claimant must present substantial evidence that the secondary condition ‘naturally or unavoidably’ resulted from the first covered injury, as is required by the statute.”).