148
O’Connor, J., dissenting
This supposed "asymmetry" in the LHWCA is not something to be circumvented, however, since it is attributable to Congress' decision to place a strict 1-year time limit on the reopening of denied or terminated claims. Under the proper interpretation of the LHWCA, a worker's wage-earning capacity is partly a function of his future ability to earn money, as proved by a preponderance of the evidence. This preponderance standard screens out claims where a worker cannot show a reduction in his future earning power. Accordingly, there is no need to engage in the sort of arbitrary line-drawing that brings us the "significant possibility" standard, in order to salvage some role for § 22's 1-year limitations period.
III
As a final matter, I believe that the ALJ's conclusion that Rambo "no longer has a wage-earning capacity loss," App. 55, should be upheld regardless of whether the standard for fixing a worker's wage-earning capacity is the one set forth by the Court or the one described in this dissent.
I agree with the Court that Metropolitan, as the proponent of a modified compensation order, met its burden of demonstrating a "change in conditions" by proving that Rambo's actual earnings had risen significantly since he began steadily working as a crane operator. Ante, at 139. Upon that showing, § 8(h) shifted to Rambo the burden of proving that his new earnings did not fairly and reasonably reflect his wage-earning capacity. Ibid. In other words, Rambo must show that his ability to earn wages in the future is more likely than not to dip below his preinjury levels.
In his written ruling, the ALJ gave this issue his full consideration. As the ALJ observed, "higher post-injury gains/ losses are not necessarily determinative of an employee's wage-earning capacity. One has to consider wage-earning capacity in an open labor market under normal employment conditions." App. 53 (citation omitted). The ALJ then specifically commented on Rambo's future job prospects: "Claim-
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