By NIGEL DUARA Associated Press
PORTLAND, Ore. August 2, 2013 (AP)
A federal appeals court says an Oregon longshoreman who got drunk on the job, urinated while standing on a dock and then fell 6 feet onto concrete should not get workers' compensation benefits for his injuries.
Gary Schwirse drank at least nine beers and half-pint of whiskey on Jan. 8, 2006. While standing on a dock, he urinated and fell over a railing. At the hospital, he registered a blood-alcohol level of 0.25 percent.
Schwirse sued for workers' compensation benefits and at first was victorious, when an administrative law judge ruled that workplace hazards had been a factor in his fall. But the judge later reversed his ruling when Schwirse backed off a claim that he tripped over an orange cone.
The worker appealed it to U.S. District Court, where he lost, and the case landed in the 9th U.S. Circuit Court of Appeals, which denied a petition for a review of claims this week. The court said his injuries were due solely to intoxication and his employers could not be held responsible.
Schwirse later tried to argue that the very concrete onto which he fell, and not his intoxication, was responsible for his injuries. That argument also lost.
Ninth Circuit Court of Appeals judge N. Randy Smith wrote in the opinion that if intoxication was the reason for the fall, then intoxication was also the reason for the injury.
Schwirse's Sunday morning began like this: He drank two beers before 8 a.m. and three beers once he got to work. At noon, he had another four or five beers, then started in on a pint of whiskey, of which he drank about half. At 4:30 p.m., when his shift collecting cones and directing trucks was over, he walked to a railing at the dock to urinate.
He fell up and over the rail onto a concrete and steel ledge. He suffered a cut to his right temple.
The Marine Terminals Corp. refused to pay his benefits, arguing that his intoxication was the sole cause of his injury. Schwirse then gave conflicting stories as to what happened that day.
At his first hearing before an administrative law judge, Schwirse said two coworkers told him he tripped over an orange cone. That testimony conflicted with a previous deposition in which he said he himself remembered tripping over the cone.
The judge initially awarded Schwirse benefits. The case bounced between the administrative law judge and the Benefits Review Board, which eventually ruled against the worker.
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