156
Opinion of the Court
weekly wage and his postinjury earning capacity. 33 U. S. C. § 908(c)(21). In those cases, unlike the scheduled-injury cases in which disability was presumed, it was necessary for the employee to prove that his injury had actually decreased his earning capacity.4
In early 1984, the Benefits Review Board 5 was confronted with a case in which the claimant had contracted asbestosis, a latent occupational disease that did not manifest itself until after his retirement. Because the disease did not qualify as a scheduled benefit, the claimant was not entitled to a presumption of disability; moreover, because it did not affect his actual earnings, he could not establish "disability" as defined in § 902(10).6 Therefore, the Board held, the claimant was not entitled to any compensation under the Act. Adud-dell v. Owens-Corning Fiberglass, 16 BRBS 131, 134 (1984).7 Three weeks after the Aduddell decision, the Board followed
4 Prior to 1984, § 902(10) defined the term "disability" to mean "incapacity because of injury to earn the wages which the employee was receiving at the time of injury in the same or any other employment." 33 U. S. C. § 902(10) (1982 ed.). An employee with a scheduled injury, however, is presumed to be disabled, even though the injury does not actually affect his earnings. As we held in Potomac Electric Power Co. v. Director, Office of Workers' Compensation Programs, 449 U. S. 268 (1980), such an employee is only entitled to the scheduled benefit even when the actual impairment of his earnings would have produced a higher benefit if calculated under § 8(c)(21). Id., at 270-271.
5 The Benefits Review Board was created by Congress to "hear and determine appeals . . . with respect to claims of employees under [the Act]." 33 U. S. C. § 921(b)(3).
6 See n. 4, supra.
7 See also Worrell v. Newport News Shipbuilding & Dry Dock Co., 16 BRBS 216 (1983) (Administrative Law Judge (ALJ) decision denying death benefits where claimant who had been exposed to asbestos developed and died from mesothelioma after retirement); Newport News Shipbuilding and Dry Dock v. Director, Office of Workers' Compensation Programs, 681 F. 2d 938, 942 (CA4 1982) ("Before retirement, the asbestosis was not disabling; after retirement there was no diminished capacity").
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