Case Explained: Kevin Brady v. Director, Office of Workers’ Compensation Programs, United States Department of Labor; Texas Terminals, L.P.; Signal Mutual Indemnity Association, Limited

Court: United States Court of Appeals for the Fifth Circuit

Filed: 2026-07-15

The Fifth Circuit denied Kevin Brady’s petition for review of a Benefits Review Board order affirming an Administrative Law Judge’s decision that he was not entitled to compensation for permanent partial disability under the Longshoremen and Harbor Workers’ Compensation Act. The court held that the Board’s determination that Brady’s average weekly wage (AWW) was $402.19, rather than the higher figures claimed by Brady, was supported by substantial evidence. The court applied the “substantial evidence” standard of review mandated by 33 U.S.C. § 921(b)(3), limiting its inquiry to whether the Board’s findings were supported by evidence and consistent with the law. The opinion focused on the statutory methodology for calculating AWW under 33 U.S.C. § 910, specifically addressing Brady’s challenge regarding the use of Section 910(c) versus Sections 910(a) or (b). The court reasoned that because Brady had an inconsistent employment history, periods of unemployment, and a lack of credible evidence supporting his asserted earnings of $1,000 per week, the ALJ and Board correctly determined that generalizing his weekly pay under Section 910(a) or (b) could not “reasonably and fairly be applied.” Consequently, the court affirmed the use of Section 910(c), which permitted a calculation based on “blended earnings” from multiple employers to reasonably represent Brady’s annual earning capacity. The practical consequence is that the petition for review is denied and all pending motions are dismissed as moot, leaving in place the administrative order denying Brady compensation for permanent partial disability.

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