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SCHWIRSE v. WORKERS' COMPENSATION PROGRAM

No. 11-73172.

736 F.3d 1165 (2013)

Gary D. SCHWIRSE, Petitioner, v. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAM; Marine Terminals Corporation; Signal Mutual Indemnity Association; ILWU-PMA Welfare Plan, Respondents.

United States Court of Appeals, Ninth Circuit.

Filed July 26, 2013.

Attorney(s) appearing for the Case

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

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

Before: BARRY G. SILVERMAN, RICHARD R. CLIFTON, and N. RANDY SMITH, Circuit Judges.

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...

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