               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


WILLIAM B. KEALOHA ,                     No. 11-71194
                         Petitioner,
                                           BRB No.
                v.                         10-0468

DIRECTOR , OFFICE OF WORKERS
COMPENSATION PROGRAMS; U.S.               OPINION
DEPARTMENT OF LABOR; LEEWARD
MARINE ; HAWAI’I EMPLOYERS’
MUTUAL INSURANCE CO .,
                      Respondents.


       On Petition for Review of an Order of the
                Benefits Review Board

               Argued and Submitted
         October 16, 2012—Honolulu, Hawaii

                  Filed April 9, 2013

    Before: Stephen Reinhardt, Sidney R. Thomas,
        and Richard A. Paez, Circuit Judges.

              Opinion by Judge Thomas
2 KEALOHA V . OFFICE OF WORKERS COMP. PROGRAMS

                           SUMMARY*


                          Longshore Act

    The panel granted a petition for review of a decision of
the Benefits Review Board that denied benefits under the
Longshore and Harbor Workers’ Compensation Act.

    The panel 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.
The panel held that the claimant need not demonstrate that the
suicide, or attempt, stemmed from an irresistible suicidal
impulse. The panel concluded that the administrative law
judge (ALJ) erroneously applied the irresistible impulse test,
and remanded for the Benefits Review Board to apply the
chain of causation test or to remand to the ALJ so that the
ALJ may have the first opportunity to do so.


                            COUNSEL

Joshua T. Gillelan, II (argued), Longshore Claimants’
National Law Center, Washington, D.C.; Jay L. Friedheim,
Honolulu, Hawaii, for Petitioner.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
   KEALOHA V . OFFICE OF WORKERS COMP. PROGRAMS 3

Thomas C. Fitzhugh III (argued) and Nicholas W. Earles,
Fitzhugh & Elliott, P.C., Houston, Texas, for Respondents
Leeward Marine, Inc. and Hawai’i Employers’ Mutual
Insurance Co.


                         OPINION

THOMAS, Circuit Judge:

    In this appeal, we consider the circumstances under which
a suicide may be compensable under the Longshore and
Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901–950.
We hold that evidence that a claimant planned his suicide
does not necessarily preclude compensation under the Act
because the proper inquiry is whether the claimant’s work-
related injury caused him to attempt suicide. We therefore
grant the petition for review and remand for further
proceedings. On remand, the question is whether there is a
direct and unbroken chain of causation between the
claimant’s work-related injury and his suicide attempt. We
need not and do not reach any other issues urged by the
parties.

                              I

    In 2001, while working as a ship laborer, William
Kealoha fell about 25 to 50 feet from a barge to a dry dock,
landing on a steel floor. He suffered blunt trauma to the head,
chest, and abdomen; a fractured rib and scapula; and knee and
back pain. Kealoha later resumed work at his employer,
Leeward Marine Inc., but after a while, left Leeward. He
filed a workers’ compensation claim under the Longshore Act
for the injuries from his fall.
4 KEALOHA V . OFFICE OF WORKERS COMP. PROGRAMS

    In 2003, Kealoha shot himself in the head, causing severe
head injuries. He sought compensation for these injuries
under the Longshore Act, alleging his suicide attempt resulted
from his 2001 fall and the litigation over that claim. In
support, he 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 impulsively
attempted suicide.

     An administrative law judge (ALJ) denied Kealoha’s
claim for benefits. The ALJ found that Kealoha’s suicide
attempt was not the “natural and unavoidable” result of his
fall because other, more significant factors led to the attempt.
Alternatively, the ALJ found that Kealoha’s injuries were not
compensable because Section 3(c) of the Act 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 or another.” 33 U.S.C.
§ 903(c). The Benefits Review Board has recognized an
exception to this provision, holding that when a worker’s
suicide attempt results from an “irresistible impulse” caused
by a work-related injury, Section 3(c) does not bar
compensation because such a suicide attempt is not “willful”
under the Act. But the ALJ found that Kealoha’s suicide
attempt did not fall within this exception. The ALJ
disbelieved Dr. Roth’s testimony and instead credited the
testimony of Leeward’s retained expert, Dr. George Bussey,
who opined that the suicide attempt was not an episode of
“impulse dyscontrol.” That testimony, the ALJ held, was
   KEALOHA V . OFFICE OF WORKERS COMP. PROGRAMS 5

consistent with evidence that Kealoha planned his suicide
attempt.

    The Board reversed. It held that instead of applying the
“naturally and unavoidably” standard, the ALJ should have
afforded Kealoha a presumption under 33 U.S.C. § 920(a)
that his suicide attempt was causally related to his fall.
Additionally, the Board held that the ALJ erred by failing to
address whether Kealoha’s illness was “so severe that he was
unable to form the willful intent to act.” The Board instructed
the ALJ that “planning of the claimant’s suicide attempt alone
is not enough to show ‘willful’ intent.”

    On remand, the ALJ held that Kealoha established that his
fall was a cause of his suicide attempt, and that Leeward
failed to rebut this presumption. She noted that even
Leeward’s expert, Dr. 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.

    Nevertheless, the ALJ found that compensation was
barred because Kealoha’s suicide was “intentional” and not
the result of an “irresistible impulse.” The ALJ found that
Kealoha spoke about committing suicide the night before,
made comments to his wife the morning of his suicide
attempt that indicated he was thinking about suicide, and
threatened to commit suicide six hours before he actually shot
himself. The ALJ found that Kealoha’s actions were
“consistent with a planned, and intentional action,” and
therefore his suicide attempt could not have been the result of
an irresistible suicidal impulse. The Board affirmed.
6 KEALOHA V . OFFICE OF WORKERS COMP. PROGRAMS

                                  II

    Kealoha argues that the ALJ and Board should have
assessed whether Kealoha’s fall caused his suicide, rather
than whether his fall led Kealoha to attempt suicide out of an
“irresistible impulse.” We agree.

    Despite the Longshore Act’s provision precluding
compensation for injuries caused by an employee’s “willful
intent to injure or kill himself,” 33 U.S.C. § 903(c), other
courts have held that the Act does not necessarily preclude
compensation for a suicide caused by a compensable work-
related injury. See Voris v. Tex. Emp’rs Ins. Ass’n, 190 F.2d
929, 934–35 (5th Cir. 1951) (holding suicide was
compensable despite the “willful intent” language of Section
3(c), then 3(b)); Terminal Shipping Co. v. Traynor, 243 F.
Supp. 915 (D. Md. 1965).1 Likewise, though many state
workers’ compensation laws contain a provision similar to the
Longshore Act’s precluding compensation for injuries that
are purposely or willfully self-inflicted, most state courts
have interpreted those provisions to allow compensation for
some suicides, including work-related suicides. See Leslie A.
Bradshaw, Annotation, Suicide as compensable under




  1
    Because Kealoha has alleged that his suicide attempt resulted from a
compensable work-related injury, we need not decide whether the
Longshore Act permits compensation for a suicide resulting directly from
work, without any primary injury. See Arthur Larson & Lex K. Larson,
2 Larson’s W orkers’ Compensation Law § 38.04 (2011); Dir., Office of
Workers’ Comp. Programs v. Cooper Assoc. Inc., 607 F.2d 1385,
1387–88 (D.C. Cir. 1979) (per curiam) (upholding compensation award
under Longshore Act to employee who became depressed and committed
suicide following business decline).
    KEALOHA V . OFFICE OF WORKERS COMP. PROGRAMS 7

workmen’s compensation act, 15 A.L.R.3d 616 § 3(a)
(1967).2

    Kealoha and Leeward agree that despite Section 3(c),
some suicides are compensable under the Longshore Act.
But they disagree on the proper test to determine a
compensable suicide. Leeward argues that the ALJ applied
the correct test, while Kealoha argues that the ALJ
improperly assumed that because Kealoha planned his
suicide, it was not compensable.

    States have adopted one of two tests to determine whether
a suicide is compensable under their workers’ compensation
laws: the irresistible impulse test or the chain of causation
test. The chain of causation test conditions compensation on
“the existence of an unbroken chain of causation from the
injury to the suicide.” Arthur Larson & Lex K. Larson,
2 Larson’s Workers’ Compensation Law § 38.03 (2011); see
also Bradshaw, supra, 15 A.L.R.3d 616 § 5(a) (“The ‘chain-
of-causation rule,’ succinctly stated, is that where the injury
and its consequences directly result in the workman’s loss of
normal judgment and domination by a disturbance of the
mind, causing the suicide, his suicide is compensable.”).
These states have held that if this chain of causation test is
met, the suicide is the product of the work-related injury, and


  2
    State workers’ compensation laws are relevant here because Congress
passed the Longshore Act to provide workers’ compensation for maritime
workers who could not be covered by state workers’ compensation laws.
See H.R. Rep. No. 69-1767, at 20 (1927) (noting that the law will afford
maritime workers “the same remedies that have been provided by
legislation for those killed or injured in the course of their employment in
nearly every State in the Union”); S. Rep. No. 69-973, at 16 (1926) (“If
longshoremen could avail themselves of the benefits of State
compensation laws, there would be no occasion for this legislation . . . .”).
8 KEALOHA V . OFFICE OF WORKERS COMP. PROGRAMS

thus not “willful” under their laws. See, e.g., Petty v. Assoc.
Transp., Inc., 173 S.E.2d 321, 329 (N.C. 1970) (“[A]n
employee who becomes mentally deranged and deprived of
normal judgment as the result of a compensable accident and
commits suicide in consequence does not act wilfully within
the meaning of [N.C. Gen. Stat.] § 97-12.”).

    In contrast, under the irresistible impulse test, an injury is
compensable 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 . . . .’” In re Sponatski, 108
N.E. 466, 468 (Mass. 1915), superseded by statute, Mass.
Gen. Laws ch. 152, § 26A (1937). States applying the
irresistible impulse test tended to compensate suicides
“marked by some violent or eccentric method of self-
destruction, while the noncompensable cases usually present
a story of quiet but ultimately unbearable agony leading to a
solitary and undramatic suicide.” Larson & Larson, supra,
§ 38.02.

    The irresistible impulse test was once the “prevailing
rule.” See Kostelac v. Feldman’s, Inc., 497 N.W.2d 853, 856
(Iowa 1993). But in recent years, states have abandoned that
test, refused to adopt it, or interpreted the test to resemble—in
practice—a chain of causation test. See Larson & Larson,
supra, §§ 38.01, 38.02. These states have found that the
chain of causation test better “accord[s] with principles of
modern medicine.” Vredenburg v. Sedgwick CMS, 188 P.3d
1084, 1090 (Nev. 2008); see also Kostelac, 497 N.W.2d at
856 (noting “society’s heightened understanding of mental
illness” has led most states to switch to chain of causation
test); Borbely v. Prestole Everlock, Inc., 565 N.E.2d 575, 579
   KEALOHA V . OFFICE OF WORKERS COMP. PROGRAMS 9

(Ohio 1991) (finding chain of causation test “more logical
and enlightened”). As these states recognize, whether an
employee committed or attempted suicide in a “delirium or
frenzy” has no bearing on whether a work-related injury
caused the suicide. See Borbely, 565 N.E.2d at 578 (“In our
view, simply because a person is capable of having a fixed
purpose to commit suicide does not necessarily mean that the
resulting suicide is voluntary.”).

    Only the Fifth Circuit and District of Maryland have
considered the suicide provision of the Longshore Act. The
Fifth Circuit found it unnecessary to determine the proper test
because the suicide in question was compensable under any
test. Voris, 190 F.2d at 933. The District of Maryland, while
claiming not to endorse a test, appeared to apply the chain of
causation test because the court upheld a compensation award
though the employee wrote a suicide note. Traynor, 243 F.
Supp. at 916–17.

    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. See 33 U.S.C. § 904(b) (“Compensation
shall be payable irrespective of fault as a cause for the
injury.”).

   In this case, the ALJ erroneously applied the irresistible
impulse test and concluded that because Kealoha planned his
10 KEALOHA V . OFFICE OF WORKERS COMP. PROGRAMS

suicide, he could not have committed suicide impulsively.
But under the correct chain of causation test, a suicide may be
compensable even if it is planned. Kealoha need not
demonstrate that he attempted to end his life in a delirium or
frenzy. Accordingly, we remand for the Board to apply the
chain of causation test or to remand to the ALJ so that she
may have the first opportunity to do so.

   PETITION GRANTED and REMANDED.
