140
Opinion of the Court
opposed to nominal) benefits, since under present conditions Rambo's capacity to earn wages is no longer depressed. But the ALJ failed to consider whether there is a significant possibility that Rambo's wage-earning capacity will decline again in the future.10 Because there is no evidence in the record of the modification proceedings showing that Rambo's physical condition has improved to the point of full recovery, the parties' earlier stipulation of permanent partial disability at least raises the possibility that Rambo's ability to earn will decline in the event he loses his current employment as a crane operator. The ALJ's order altogether terminating benefits must therefore be vacated for failure to consider whether a future decline in Rambo's earning capacity is sufficiently likely to justify nominal compensation. Since the ALJ is the factfinder under the Act, see §§ 21(b)(3), (c), 33 U. S. C. §§ 921(b)(3), (c), however, the Court of Appeals should have remanded to the agency for further findings of fact, see, e. g., Randall v. Comfort Control, Inc., 725 F. 2d, at 799-800 (remanding for consideration of nominal award), instead of directing entry of a nominal award based on its own appraisal of the evidence. We therefore vacate the Ninth Circuit's judgment insofar as it directs entry of an
10 The dissent argues that the ALJ expressly found that Rambo's present wages adequately reflect his future prospects. Post, at 148-150. In our view, however, the language in the modification order relied on by the dissent addresses whether Rambo's current wages accurately reflect his earning capacity under present market conditions, see supra, at 128 (current wages do not always reflect current capacity); Edwards v. Director, OWCP, 999 F. 2d 1374, 1375 (CA9 1993) (adopting OWCP Director's position that "earnings in post-injury employment must be sufficiently regular to establish true earning capacity"), not the distinct question whether there is a significant chance that his ability to earn will again decline in the future. See App. 53 (ALJ characterized his task as "consider[ing] wage-earning capacity in an open labor market under normal employment conditions"). The ALJ's failure to consider the latter question is not surprising, since prior to this case there was no governing authority from this Court or the Ninth Circuit approving nominal awards for possible future declines.
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