144
O’Connor, J., dissenting
presently have a reduced "wage-earning capacity" within the meaning of the LHWCA, regardless of whether his current wages were as high as his preinjury wages. Just because market conditions and the claimant's physical condition may vary over time does not mean that an ALJ should not consider predicted variations when fixing the worker's wage-earning capacity. Quite to the contrary, the ALJ must consider them; otherwise, he would not be "fix[ing]" the worker's capacity at all, but simply putting off that determination for another day.
Because an ALJ must make a definite finding regarding a worker's wage-earning capacity, I disagree with the Court that a worker can ever, for purposes of the LHWCA, have a "nominal current disability." Ante, at 135. A worker either has a reduced wage-earning capacity (however slight it may be), or he does not. To say that a claimant has a "nominal current disability," as far as I can tell, means only that he is currently making as much as his preinjury wages. But that answers only half the question, since the worker's future earning potential is also relevant to whether he has a reduced wage-earning capacity today and, hence, a compensable disability.
The Court conflates a worker's foreseeable future earning power, which must be considered when awarding benefits, with unforeseeable future developments, which justify reopening an award under § 22 of the LHWCA, 33 U. S. C. § 922. Section 22 acknowledges that a worker's wage-earning capacity can change over time, since it authorizes the Benefits Review Board to modify compensation orders in light of a "change in conditions." All that means is that when circumstances arise that were not predictable in the original benefits determination, and hence were not factored into a prior determination of a worker's wage-earning capacity, an ALJ can adjust an award. If, on the other hand, those circumstances were predicted in the original proceeding, they should have been included in the initial fixing of
Page: Index Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: October 4, 2007