Cite as: 521 U. S. 121 (1997)
O’Connor, J., dissenting
award of nominal compensation, and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Justice O’Connor, with whom Justice Scalia and Justice Thomas join, dissenting.
The Court holds today that an administrative law judge can award nominal worker's compensation benefits to an injured longshoreman whose wage-earning capacity has not dropped, and probably will never drop, below his preinjury capacity. Because I believe that § 8(h) of the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), 33 U. S. C. § 908(h), requires that a worker be compensated if and only if a preponderance of the evidence demonstrates that he has a reduced wage-earning capacity—that is, a present or future loss of earning power—I respectfully dissent.
As an initial matter, I note my agreement with some of the starting points for the Court's analysis. It is common ground that "disability" under the LHWCA is an economic, rather than a medical, concept. Ante, at 126; Metropolitan Stevedore Co. v. Rambo, 515 U. S. 291, 297 (1995). Likewise, I agree that a worker's eligibility for compensation (i. e., his disability) under the LHWCA turns on his wage-earning capacity, which depends on his ability to earn wages now and in the future. That is, I agree that an injured worker who is currently receiving high wages, but who is likely to be paid less in the future due to his injury, is disabled under the LHWCA and is therefore eligible for compensation today. See ante, at 128-129.
I part company with the Court first because, in my view, § 8(h) of the LHWCA, 33 U. S. C. § 908(h), requires an administrative law judge (ALJ) to make an up-front finding that "fix[es]" the worker's wage-earning capacity (and hence his eligibility for compensation) by taking into account both the worker's present and future ability to earn wages. Second,
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