               FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GARY D. SCHWIRSE,                        No. 11-73172
                         Petitioner,
                                           BRB No.
                v.                         11-0119

DIRECTOR , OFFICE OF WORKERS’
COMPENSATION PROGRAM ; MARINE             OPINION
TERMINALS CORPORATION ; SIGNAL
MUTUAL INDEMNITY ASSOCIATION ;
ILWU-PMA WELFARE PLAN ,
                      Respondents.


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

               Argued and Submitted
          October 9, 2012—Portland, Oregon

                  Filed July 26, 2013

    Before: Barry G. Silverman, Richard R. Clifton,
         and N. Randy Smith, Circuit Judges.

            Opinion by Judge N.R. Smith
2               SCHWIRSE V . DIRECTOR, OWCP

                           SUMMARY*


    Longshore and Harbor Workers’ Compensation Act

   Denying the petition for review, the panel held that the
Benefits Review Board did not err when it affirmed the
administrative law judge’s denial of petitioner’s claim for
compensation under the Longshore and Harbor Workers’
Compensation Act due to intoxication.

    The panel held that the Board did not err in interpreting
33 U.S.C. § 903(c) of the Act, which bars compensation if an
“injury was occasioned solely by” the intoxication of the
employee. The panel held that an injury “occasioned solely
by” intoxication means that the legal cause of the injury was
intoxication, regardless of the surface material of the landing
on which the intoxicated person fell. The panel therefore
rejected petitioner’s broader definition of the term injury,
which suggested that because petitioner hit a concrete surface
rather than the river or a featherbed, his injury was not solely
occasioned by intoxication.

    The panel held that the Board correctly concluded that
substantial evidence in the record supported the ALJ’s
conclusion that petitioner’s employer rebutted the statutory
presumption that intoxication was not the sole cause of
petitioner’s injury.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              SCHWIRSE V . DIRECTOR, OWCP                   3

                        COUNSEL

Meagan A. Flynn, Preston Bunnell & Flynn, LLP, Portland,
Oregon, for Petitioner.

Robert E. Babcock, Holmes Weddle & Barcott, P.C., Lake
Oswego, Oregon, for Respondents.


                         OPINION

N.R. SMITH, Circuit Judge:

    33 U.S.C. § 903(c) precludes compensation to an injured
employee if “the injury was occasioned solely by [his]
intoxication.” This language precludes recovery where the
intoxication of the employee was the sole “legal cause” of the
injury. “Legal cause” is the causal connection in fact, which
extends not only to positive and active physical forces, but
also to pre-existing passive conditions. Cf. Exxon Co., U.S.A.
v. Sofec, Inc., 517 U.S. 830, 837–39 (1996); White v. Roper,
901 F.2d 1501, 1505–06 (9th Cir. 1990). The Benefits
Review Board (BRB) did not err when it affirmed the
administrative law judge’s (ALJ) denial of Schwirse’s claim
for compensation under the Longshore and Harbor Workers’
Compensation Act (LHWCA) due to intoxication. We have
jurisdiction to review the petition under 33 U.S.C. § 921(c);
we deny the petition for review.

                          FACTS

   Gary Schwirse was employed by Marine Terminals
Corporation (MTC) as an A-registered longshoreman. On
January 8, 2006, Schwirse drank two beers before going to
4             SCHWIRSE V . DIRECTOR, OWCP

work at 8:00 a.m. Between 8:00 a.m. and 12:00 p.m., he
drank an additional three beers. At lunch, Schwirse
consumed four to five more beers. Between the end of lunch
and the end of the day (approximately 4:00 p.m.), Schwirse
also drank more than half a pint of whiskey.

    At approximately 4:30 p.m., Schwirse decided to relieve
himself near the bull rail of MTC’s dock. While doing so,
Schwirse fell over the bull rail onto a concrete and steel ledge
(approximately six feet below the rail). After Schwirse’s fall,
he was taken by ambulance to the hospital where he was
diagnosed with acute alcohol intoxication (.29 serum level or
.25 blood alcohol level), cannabis ingestion, and a severe
scalp laceration to his right temple.

    Thereafter, Schwirse sought compensation for his injury
under the LHWCA. However, MTC refused to pay the
compensation, arguing that he had no claim for compensation
under the LHWCA. MTC asserted that Schwirse was
precluded from receiving compensation under 33 U.S.C.
§ 903(c), because his intoxication was the sole cause of his
injury.

    At the hearing before the ALJ on June 21, 2007, Schwirse
stated that he could not remember the details of the incident.
Instead, he asserted, based upon the statements of his co-
workers (neither of whom testified), that the fall was due to
tripping over a bright orange warning cone. However, in
Schwirse’s earlier deposition (taken on October 20, 2006), he
recalled the facts differently. At that time, Schwirse stated
that neither of his coworkers actually saw what happened;
instead, he was the one, who specifically recalled seeing and
tripping over a traffic cone at the bull rail’s edge. The ALJ
awarded Schwirse benefits. The ALJ determined that
              SCHWIRSE V . DIRECTOR, OWCP                     5

Schwirse’s injury was not caused solely by intoxication,
because there was no direct proof that intoxication (and not
something else) caused him to fall. MTC appealed the ALJ’s
decision to the BRB. The BRB reversed the ALJ, finding that
the employer rebutted the presumption that the injury was
caused by something other than intoxication. The BRB noted
that “[i]t is not [the] employer’s burden to prove on the record
as a whole that intoxication was the sole cause of claimant’s
injury.”

    Schwirse filed a motion for reconsideration, arguing that
the BRB’s ruling incorrectly stated the employer’s burden of
proof. After review of the motion, the BRB agreed with
Schwirse’s argument, correcting its prior opinion. Instead,
the BRB stated that the burden of proof is on the employer
and remanded the matter back to the ALJ to make further
findings and weigh the relevant evidence.

     On remand, the ALJ weighed the conflicting evidence and
determined that MTC had established that intoxication was
the sole cause of Schwirse’s fall. Relying on the testimony of
the marine manager, the ALJ concluded that the bull rail was
free of tripping or slipping hazards. The ALJ also credited
the testimony of Drs. Burton and Jacobsen, physicians
testifying on behalf of MTC, that the sole cause of Schwirse’s
fall was due to intoxication. The ALJ thus concluded that
there was “no other explanation for [Schwirse’s] industrial
injury than his intoxication.” The ALJ also rejected
Schwirse’s alterative argument that the concrete and metal
6                SCHWIRSE V . DIRECTOR, OWCP

slab (on which he fell) caused the injury rather than his
intoxication.1

        The BRB affirmed the decision.

                           DISCUSSION

    “The Longshore Act is a comprehensive scheme to
provide compensation for the disability or death of employees
resulting from injuries occurring upon the navigable waters
of the United States.” Price v. Stevedoring Servs. of Am.,
Inc., 697 F.3d 820, 823 (9th Cir. 2012) (internal quotation
marks omitted); see also 33 U.S.C. § 903(a). However, “[n]o
compensation shall be payable if the injury was occasioned
solely by the intoxication of the employee.” 33 U.S.C.
§ 903(c). Despite this exclusion, the LHWCA provides that
“a claim for compensation . . . shall be presumed, in the
absence of substantial evidence to the contrary . . . [t]hat the
injury was not occasioned solely by the intoxication of the
injured employee.” 33 U.S.C. § 920(c) (emphasis added).
“[T]he employer may rebut the presumption . . . by presenting
substantial evidence that is specific and comprehensive
enough to sever the potential connection between the
disability and the work environment.” Hawaii Stevedores,
Inc. v. Ogawa, 608 F.3d 642, 651 (9th Cir. 2010) (internal
quotation marks omitted). The ALJ then “determines as a
matter of law whether substantial rebuttal evidence has been
presented.” Id. If the ALJ determines that the employer
rebutted the presumption, “the presumption in favor of the


    1
   W e further note that Schwirse presented no argument or evidence that
the concrete and metal slab (on which he fell) was defective, and that such
defect caused his injury to any extent. He only argued that the fall (onto
a concrete and metal slab) caused his injury.
              SCHWIRSE V . DIRECTOR, OWCP                    7

claimant ‘falls out of the case’ and the ALJ moves to the third
and final step of weighing the evidence as a whole ‘to
determine whether the claimant has established the necessary
causal link between the injury and employment.’” Id.
(quoting Bath Iron Works Corp. v. Fields, 599 F.3d 47, 54–55
(1st Cir. 2010)). “This final determination is a question of
fact.” Id.

1. The BRB did not err in interpreting 33 U.S.C.
   § 903(c).

    This case turns, in part, on an interpretation of the
LHWCA. We have held that “[t]he Board’s interpretation of
the LHWCA is a question of law reviewed de novo and is not
entitled to any special deference.” Stevedoring Servs. of Am.
v. Price, 382 F.3d 878, 883 (9th Cir. 2004) (citing
Stevedoring Servs. of Am. v. Dir., OWCP, 297 F.3d 797,
801–02 (9th Cir. 2002)). However, we “respect the Board’s
interpretation . . . if it ‘is reasonable and reflects the
underlying policy of the statute.’” Id. at 883 (quoting Kelaita
v. Dir., OWCP, 799 F.2d 1308, 1310 (9th Cir. 1986)).

    Under 33 U.S.C. § 903(c), “[n]o compensation shall be
payable if the injury was occasioned solely by the
intoxication of the employee.” Breaking the phrase into its
parts, the LHWCA defines “injury” as:

       accidental injury or death arising out of and in
       the course of employment, and such
       occupational disease or infection as arises
       naturally out of such employment or as
       naturally or unavoidably results from such
       accidental injury, and includes an injury
       caused by the willful act of a third person
8             SCHWIRSE V . DIRECTOR, OWCP

       directed against an employee because of his
       employment.

33 U.S.C. § 902(2). This definition does not fully address the
language we must interpret here, whether the “injury was
occasioned solely by” a cause, in this case intoxication. The
term “injury” is modified by “occasioned solely by,” which
requires us to determine whether intoxication was the “legal
cause” of the injury (a “but for” analysis).

     The “occasioned solely by” phrase is not defined by the
statute. In determining whether an employee’s injury was
“occasioned solely by” intoxication, we take guidance from
those admiralty cases determining proximate cause. See
Exxon, 517 U.S. at 839. By analogy, we determine whether
intoxication was the only or “sole” cause by (1) looking at the
act that caused the accident and (2) determining whether there
were any superseding or intervening causes that contributed
to the injury. Id. at 837–39.

    This interpretation is consistent with the BRB’s
application of a two-part test for determining whether the
employer met its burden in establishing that intoxication was
the sole cause of the accident. See Sheridon v. Petro-Drive,
Inc., 18 BRBS 57, *2 (1986). First, the employer must
establish “that the employee was drunk at the time of the
accident.” Id. (quoting Shearer v. Niagara Falls Power Co.,
150 N.E. 604, 605 (N.Y. 1982)). Second, the employer must
establish that the employee “fell owing to his drunkenness
and was injured.” Id. (emphasis added).

    We therefore hold that an injury “occasioned solely by”
intoxication means that the legal cause of the injury was
intoxication, regardless of the surface material of the landing
              SCHWIRSE V . DIRECTOR, OWCP                    9

on which the intoxicated person fell. In other words, as aptly
stated by the BRB, “[i]f intoxication was the sole cause of the
claimant’s fall, then intoxication also was the sole cause of
the claimant’s injury.”

    Instead, Schwirse argues an all-encompassing definition
of the term injury. Relying on Johnson v. Dir., Office of
Workers Compensation Programs, 911 F.2d 247, 250 (9th
Cir. 1990), Schwirse argues that Congress used the term
“accident,” to mean the “event causing the harm,” where it
intended to limit compensation to the sole cause of the fall.
In other words, by using the term “injury,” Congress intended
to incorporate the “harmful physical consequences of that
event.” Thus, Schwirse’s definition would suggest that,
because he hit the concrete surface rather than the river or a
featherbed, his injury was not solely occasioned by
intoxication. In other words, his “accident” may have been
caused by intoxication, but harmful physical consequences of
the fall (the injury) was caused by hitting the concrete and
metal slab.

    We reject Schwirse’s interpretation.           Accepting
Schwirse’s broad definition of the term “injury” would
violate a “cardinal principle of statutory construction.” See
TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). In particular,
if “we [were] to adopt [Schwirse’s] construction of the
statute, the express [intoxication] exception would be
rendered insignificant, if not wholly superfluous.” Id.
(internal quotation marks and alternations omitted).
Schwirse’s interpretation of the term “injury” would read out
the phrase “occasioned solely by” and preclude the
application of § 903(c). Nearly every “harm” would not be
“occasioned solely by the intoxication” but rather by some
further cause, such as the ground. Further, as noted by the
10               SCHWIRSE V . DIRECTOR, OWCP

Supreme Court, “Life is too short to pursue every event to its
most remote, ‘but-for,’ consequences, and the doctrine of
proximate cause provides a rough guide for courts in cutting
off otherwise endless chains of cause-and-effect.” Pac.
Operators Offshore, LLP v. Valladolid, 132 S. Ct. 680, 692
(2012). We therefore conclude that the most logical way to
interpret § 903(c) and § 920(c) of the LHWCA is to interpret
the phrase “occasioned solely by” to limit the analysis to the
sole causal factor of the injury.

2. The BRB did not err in affirming the ALJ’s finding
   that MTC produced sufficient evidence to rebut the
   statutory presumption that Schwirse’s injury was not
   solely caused by intoxication.

    In considering a claim for disability benefits under the
LHWCA, the ALJ is required to follow a three part process.
First, the claimant must show that he sustained an injury in
the course and scope of his employment. See Albina Engine
& Machine v. Dir., OWCP, 627 F.3d 1293, 1298 (9th Cir.
2010). If an injury is established, a presumption arises that
the injury was not occasioned solely by intoxication. See
33 U.S.C. § 920(c); see also Albina Engine, 627 F.3d at 1298.
Second, the employer must present “substantial evidence” to
rebut that presumption. See 33 U.S.C. § 920; see also Albina
Engine, 627 F.3d at 1298. Lastly, if the employer
successfully rebuts the presumption, the ALJ must then
evaluate whether the claimant met his burden of persuasion
by a preponderance of the evidence that the record as a whole
justifies awarding benefits.2 Albina Engine, 627 F.3d at 1298.


  2
    Having rebutted the presumption that the claimant’s injury was not
occasioned solely by intoxication under the substantial evidence standard,
the employer does not further bear the burden of proving that the
                 SCHWIRSE V . DIRECTOR, OWCP                           11

   The Board must accept the ALJ’s findings of fact if they
are supported by “substantial evidence in the record
considered as a whole.” 33 U.S.C. § 921(b)(3); see also
Container Stevedoring Co. v. Dir., OWCP, 935 F.2d 1544,
1546 (9th Cir. 1991). The Supreme Court has defined
“substantial evidence” as “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Universal
Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951). We
conduct an independent review to determine if the Board
adhered to this standard. Bumble Bee Seafoods v. Dir.,
OWCP, 629 F.2d 1327, 1329 (9th Cir. 1980).

    Reviewing the BRB’s decision, we conclude the BRB
adhered to this standard and did not err in affirming the ALJ’s
denial of compensation under the LHWCA. First, there is no
dispute that Schwirse sustained an injury while at work.
Thus, a presumption arises that Schwirse’s injury was not
occasioned solely by intoxication. The BRB correctly
concluded that substantial evidence in the record supported
the ALJ’s conclusion that Schwirse’s employer rebutted the
presumption that intoxication was not the sole cause of
Schwirse’s injury. The BRB stated the correct standard of
review regarding the ALJ’s findings of facts. The BRB noted
that the ALJ “found sufficient evidence, in the form of the
opinions of Drs. Burton and Jacobsen, the testimony of Mr.
Yockey, and photographs of the accident site . . . .” Based on


employee’s injury was caused solely by intoxication under the
preponderance of the evidence standard. Albina Engine clearly establishes
that after the employer rebuts the presumption by substantial evidence, the
burden shifts to the claimant to prove entitlement to benefits by a
preponderance of the evidence. To the extent that it placed the burden at
the latter stage on the employer, the BRB erred.
12             SCHWIRSE V . DIRECTOR, OWCP

this evidence, the ALJ ruled out any tripping hazards and then
relied on the expertise of doctors to conclude intoxication was
the sole cause. There was no evidence of any superseding or
intervening cause of the injury. Further, there is no question
that a foreseeable consequence of falling is that one may hit
the pre-existing surface material. It is also foreseeable that
the surface material surrounding the dock was hard and
would cause significant injury. A preference that one may
fall on more forgiving material (such as a featherbed or
water) does not alter the “legal cause” of the injury. Thus,
absent evidence of the surface material being unforeseeably
defective, the “legal cause” is limited to the reason for his fall
and the foreseeable consequences of that fall. Here, the ALJ
found that the only known cause for Schwirse’s injury was
the fall off the bull rail attributable solely to his drunkenness.
Thus the BRB did not err in concluding substantial evidence
supported the ALJ’s conclusions.

    We further find no error in the BRB’s conclusion that
Schwirse’s employer does not have to “rule out” all other
possible causes of injury in order to rebut the presumption
under 33 U.S.C. § 920(c). As noted by the BRB, the
employer “need not negate every hypothetical cause.”
Sheridon, 18 BRBS 57, *3. To hold otherwise would
contradict the statutory language, which only requires
“substantial evidence” to rebut the presumption. See Ortco
Contractors, Inc. v. Charpentier, 332 F.3d 283, 288 (5th Cir.
2003) (“[T]he BRB cannot require employers to rebut a
[33 U.S.C. § 920(a)] presumption by ‘ruling out’ every
conceivable connection between the injury and the claimant’s
employment. The LHWCA requires a lower evidentiary
standard than this-the employer must adduce only substantial
evidence that the injury was not work-related.”).
             SCHWIRSE V . DIRECTOR, OWCP                 13

    Lastly, BRB correctly concluded that the ALJ’s decision
to deny disability benefits, based on the record as a whole,
was proper. As the Supreme Court stated in Del Vecchio v.
Bowers,

       If the employer alone adduces evidence which
       tends to support the theory [contrary to the
       presumption], the case must be decided upon
       that evidence. Where the claimant offers
       substantial evidence in opposition, . . . the
       issue must be resolved upon the whole body
       of proof pro and con; and if it permits an
       inference either way upon the question . . . ,
       the Deputy Commissioner and he alone is
       empowered to draw the inference; his decision
       as to the weight of the evidence may not be
       disturbed by the court.

296 U.S. 280, 286–87 (1935) (footnotes omitted). The only
alleged cause of Schwirse’s injury that was supported by
substantial evidence was Schwirse’s intoxication. The ALJ
properly “weigh[ed] the evidence as a whole ‘to determine
whether [Schwirse had] established the necessary causal link
between the injury and employment.’” Hawaii Stevedores,
608 F.3d at 651 (citation omitted).

   PETITION DENIED.
