Unreported / Non-Citable
Background
Kevin Brady sustained an injury while working for Texas Terminals, LP and filed a claim for disability compensation benefits under the Longshoremen and Harbor Workers’ Compensation Act (LHWCA) in 2020. An Administrative Law Judge issued a decision in 2021 denying Brady’s claim for partial disability compensation. Brady appealed to the Benefits Review Board, arguing that the ALJ had not adequately calculated his pre-injury average weekly wage (AWW) or properly determined whether he had sustained a compensable loss in wage-earning capacity as a result of lost overtime wages in the suitable alternate employment provided by the employer.
The BRB vacated the ALJ’s partial disability denial and remanded the case for the ALJ to recalculate Brady’s AWW and re-examine his wage-earning capacity loss. On remand, the ALJ again concluded that Brady was not entitled to partial disability compensation because he had suffered no loss in wage-earning capacity. The BRB affirmed this 2024 decision, rejecting Brady’s challenge to the AWW calculation methodology.
The Court’s Holding
The Fifth Circuit affirmed the BRB’s decision and the AWW calculation of $402.19. The court found substantial evidence supported the use of Section 910(c) of the LHWCA statutory scheme, which permits calculation of AWW using blended earnings from multiple employers when standard calculation methods “cannot reasonably and fairly be applied.” Given Brady’s periods of unemployment, inconsistent employment history, lack of credibility as determined by the ALJ, and absence of evidence supporting his claimed 2016 earnings, the court concluded that utilizing combined earnings from several different employers in the year prior to injury reasonably represented his annual earning capacity at the time of the injury.
The court rejected Brady’s argument that his AWW should be calculated at $651 (his wages in the week before injury) or $1,000 (his asserted pre-injury weekly earnings), finding no evidentiary support for these figures. Under the LHWCA, workers are entitled to compensation for partial disability only when their pre-injury AWW exceeds their post-injury weekly wages in suitable alternate employment. Because Brady failed to establish a loss in wage-earning capacity, he was not entitled to partial disability benefits.
Key Takeaways
- LHWCA wage calculations employ different methodologies based on employment consistency; when standard methods cannot reasonably be applied due to irregular employment or wage history, blended earnings from multiple employers may be used.
- Workers claiming partial disability must present credible, documented evidence of pre-injury earnings; unsupported assertions about prior wages cannot override documented evidence considered by administrative fact-finders.
- The substantial evidence standard of review affords considerable deference to ALJ and BRB factual findings regarding wage calculations and credibility determinations.
Why It Matters
This decision clarifies the framework for calculating average weekly wage in LHWCA cases involving workers with non-traditional or inconsistent employment histories. The Fifth Circuit’s endorsement of the blended-earnings methodology provides guidance for administrative law judges handling future cases where standard wage calculation methods prove impractical. The decision underscores that workers seeking partial disability compensation bear the burden of presenting credible evidence to support their claimed pre-injury earnings.
For maritime workers and longshore employees with irregular employment patterns, the case demonstrates that administrative bodies have flexibility in selecting appropriate wage-calculation methodologies when circumstances warrant, but workers cannot succeed by merely asserting higher figures lacking evidentiary support. The substantial evidence standard ensures that wage calculations withstand judicial review even when claimants dispute the underlying methodology or factual findings regarding credibility.