OCTOBER TERM, 1996
Syllabus
METROPOLITAN STEVEDORE CO.
v. RAMBO ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 96-272. Argued March 17, 1997-Decided June 19, 1997
Respondent Rambo, injured while doing longshore work for
petitioner Metropolitan Stevedore Company, received a compensation
award under the Longshore and Harbor Workers' Compensation Act
(LHWCA or Act), based on the parties' stipulation that he had
sustained permanent partial disability. After Rambo acquired new
skills as a longshorecrane operator and began making about three
times his preinjury earnings, Metropolitan moved to modify his
LHWCA award. Despite an absence of evidence that Rambo's physical
condition had improved, the Administrative Law Judge (ALJ) ordered
his benefits discontinued because of his increased earnings. The
Benefits Review Board affirmed, but the Ninth Circuit reversed on
the ground that LHWCA § 22 authorizes modification of an award only
for changed physical conditions. This Court in turn reversed in
Metropolitan Stevedore Co. v.
Rambo, 515 U. S. 291,
holding that the Act's fundamental purpose is economic, to
compensate employees for wage-earning capacity lost because of
injury; where that capacity has been reduced, restored, or
improved, the basis for compensation changes and the statutory
scheme allows for modification,
id., at 296-298, even
without any change in physical condition,
id., at 301. On
remand, the Ninth Circuit again reversed the order discontinuing
compensation. It recognized that when a worker suffers a
significant physical impairment without experiencing a present loss
of earnings, there may be serious tension between § 8(h)'s mandate
to account for disability's future effects in determining
wage-earning capacity (and thus entitlement to compensation), and §
22's prohibition against issuing any new order to pay benefits more
than one year after compensation ends or an award denial is
entered. The court reconciled the two provisions by reading the Act
to authorize a present nominal award subject to later modification
if conditions should change. It held that the order discontinuing
benefits was based on the ALJ's overemphasis on Rambo's current
status and failure to consider his permanent partial disability's
effect on his future earnings, and remanded the case for entry of a
nominal award.
Held:
1. A worker is entitled to nominal compensation under the LHWCA
when his work-related injury has not diminished his present
wage-
122
earning capacity under current circumstances, but there is a
significant potential that the injury will cause diminished
capacity under future conditions. The Act refers to compensable
economic harm as "disability," defining that term as the measure of
earning capacity lost as a result of work-related injury, § 2(10).
Section 8(c)(21) sets compensation for permanent partial disability
due to unscheduled injuries at a percentage of the difference
between the worker's average weekly preinjury wages and his
wage-earning capacity thereafter, while § 8(h) explains that such
capacity is to be determined by the worker's actual earnings if
they fairly and reasonably represent that capacity; if not, the
factfinder may, "in the interest of justice," fix such capacity as
shall be "reasonable," having due regard for,
inter alia,
"the effect of disability as it may naturally extend into the
future." A problem in applying these provisions arises in the
situation here at issue, where a worker presently earning at least
as much as before his injury, but having a basis to anticipate that
a future combination of the injury and jobmarket conditions will
leave him with a lower earning capacity, must nevertheless file his
disability claim within a year of the injury under § 13(a). If the
worker is awarded no compensation, § 22 will bar him from seeking a
modification in response to future changes in condition after one
year. To implement § 8(h)'s mandate in this class of cases,
"disability" must be read broadly enough to cover loss of capacity
not just as a product of the worker's injury and present job market
conditions, but as a potential product of injury and market
opportunities in the future. Thus, a potential disability is
treated as a present disability, albeit a presently nominal one. It
is "reasonable" and "in the interest of justice" (to use § 8(h)'s
language) to reflect merely nominal current disability with a
correspondingly nominal award. Ordering nominal compensation holds
open the possibility of a modification upward under § 22 if in the
future circumstances so warrant. This approach is consistent with
the wait-and-see approach the Act adopts generally with respect to
benefits modification questions, and is the best way to reconcile §
8(h)'s mandate to consider future effects with the requirements of
§§ 13(a) and 22. The Court's view on this point coincides with, and
is reinforced by, the position of the Director of the Office of
Workers' Compensation Programs (OWCP), who is charged with
administering the Act. It would be imprudent for the Court to
attempt to resolve for all time the question of how high the
potential for disability need be to be recognized as nominal, since
that issue was not addressed by the parties. Those lower courts to
have dealt with the matter have required a showing of a significant
possibility of a future decline in wage-earning capacity, and, in
the absence of rulemaking by the OWCP on the point, the Court
adopts that standard. Pp. 126-138.
123
2. Although the Ninth Circuit adopted the correct legal
standard, it erred in directing entry of a nominal award based on
its own appraisal of the evidence, rather than remanding the case
to the ALJ for further findings of fact. Since the ALJ is the
factfinder under the Act, see §§ 21(b)(3), (c), it is the ALJ's
duty, not the Court of Appeals's, to consider whether a future
decline in Rambo's earning capacity is sufficiently likely to
justify nominal compensation. The ALJ failed to do so. Pp.
138-141.
81 F.3d
840, vacated and remanded.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and STEVENS, KENNEDY, GINSBURG, and BREYER, JJ.,
joined. O'CONNOR, J., filed a dissenting opinion, in which SCALIA
and THOMAS, JJ., joined,
post, p. 141.
Robert E. Babcock argued the cause and filed a brief for
petitioner.
Malcolm L. Stewart argued the cause for the federal respondent.
With him on the brief were Acting Solicitor General Dellinger,
Deputy Solicitor General Kneedler, J. Davitt McAteer, Allen H.
Feldman, Nathaniel 1. Spiller, and Scott Glabman. Thomas J. Pierry
III argued the cause for respondent Rambo. With him on the
brief was Thomas
JUSTICE SOUTER delivered the opinion of the Court.
This case under the Longshore and Harbor Workers' Compensation
Act is before us a second time, now raising the question whether
the Act bars nominal compensation to a worker who is presently able
to earn at least as much as before he was injured. We hold nominal
compensation proper when there is a significant possibility that
the worker's wage-earning capacity will fall below the level of his
preinjury wages sometime in the future.
*Briefs of
amici curiae urging reversal were filed for
the National Association of Waterfront Employers et al. by
Charles T. Carroll, Jr., F.
Edwin Froelich, and
Franklin W Losey; and for the National Steel and
Shipbuilding Co. by
Alvin G.
Kalmanson and
Roy D.
Axelrod.
124
I
Respondent John Rambo injured his back and leg in 1980 while
doing longshore work for petitioner Metropolitan Stevedore Company.
Rambo claimed against Metropolitan for compensation under the
Longshore and Harbor Workers' Compensation Act (LHWCA or Act), 44
Stat. 1424, as amended, 33 U. S. C. § 901
et seq., and the
parties stipulated that Rambo had sustained a 22lf2% permanent
partial disability, which would normally reflect a $120.24 decline
in his preinjury $534.38 weekly wage. This, in turn, was reduced to
an award of $80.16 per week under § 8(c)(21) of the Act, 33 U. S.
C. § 908(c)(21), providing for compensation at the rate of 66%% of
the difference between an employee's preinjury wages and postinjury
wage-earning capacity. An Administrative Law Judge (ALJ) entered an
order incorporating this stipulated award. App. 51;
Metropolitan
Stevedore Co. v.
Rambo (Rambo I), 515 U. S. 291, 293
(1995).
Rambo was later trained as a longshore crane operator and got
full-time work with his new skills, with occasional stints as a
heavy-truck operator to earn extra pay. His resulting annual
earnings between 1985 and 1990 were about three times what he had
made before his injury. As a consequence, Metropolitan moved in
1989 to modify Rambo's earlier disability award, see § 22, 33 U. S.
C. § 922, and a hearing was held before an ALJ. While there was no
evidence that Rambo's physical condition had improved, the ALJ
ordered the disability payments discontinued based on the tripling
of Rambo's preinjury earnings:
"After taking into consideration the increase in wages due to
the rate of inflation and any increase in salary for the particular
job, it is evident that [Rambo] no longer has a wage-earning
capacity loss. Although [Rambo] testified that he might lose his
job at some future time, the evidence shows that [Rambo] would not
be at any
125
greater risk of losing his job than anyone else. Moreover, no
evidence has been offered to show that [Rambo's] age, education,
and vocational training are such that he would be at greater risk
of losing his present job or in seeking new employment in the event
that he should be required to do so. Likewise, the evidence does
not show that [Rambo's] employer is a beneficent one. On the
contrary, the evidence shows that [Rambo] is not only able to work
full time as a crane operator, but that he is able to work as a
heavy lift truck operator when the time is available within which
to do so." App.55.
See also
Rambo I, supra, at 293-294.
The Benefits Review Board affirmed the modification order, App.
57, 61, but the Court of Appeals for the Ninth Circuit reversed on
the ground that § 22 authorizes modification of an award only for
changed physical conditions,
Rambo v.
Director, owep,
28 F.3d
86 (1994). We in turn reversed in
Rambo I, holding that
"[t]he fundamental purpose of the Act is to compensate employees
(or their beneficiaries) for wage-earning capacity lost because of
injury; where that wage-earning capacity has been reduced,
restored, or improved, the basis for compensation changes and the
statutory scheme allows for modification." 515 U. S., at 298. Since
the essence of wage-earning capacity is economic, not physical,
id., at 296-298, that capacity may be affected "even without any
change in the employee's physical condition," id., at 30l.
On remand, the Court of Appeals again reversed the order
discontinuing compensation payments. It recognized that when a
worker suffers a significant physical impairment without
experiencing a present loss of earnings, there may be serious
tension between the statutory mandate to account for future effects
of disability in determining a claimant's wage-earning capacity
(and thus entitlement to compensa-
126
tion), see § 8(h), 33 U. S. C. § 908(h), and the statutory
prohibition against issuing any new order to pay benefits more than
one year after compensation ends or an order is entered denying an
award, see § 22, 33 U. S. C. § 922. The Court of Appeals reconciled
the two provisions by reading the statute to authorize a present
nominal award subject to later modification if conditions should
change.
Rambo v.
Director, OWCp, 81 F.3d
840, 844 (1996). The court reversed the order ending Rambo's
benefits as unsupported by substantial evidence, due to
"overemphasi[s on] Rambo's current status and fail[ure] to consider
the effect of Rambo's permanent partial disability on his future
earnings,"
ibid., and it remanded for entry of a nominal
award reflecting Rambo's permanent partial disability, id., at
845.1 We granted certiorari. 519 U. S. 1002 (1996). While we agree
that nominal compensation may be awarded under certain
circumstances despite the worker's present ability to earn more
than his preinjury wage, we vacate the judgment of the Court of
Appeals directing entry of such an award and remand for factfinding
by the ALJ.
II
The LHWCA authorizes compensation not for physical injury as
such, but for economic harm to the injured worker from decreased
ability to earn wages. See
Rambo I, supra, at 297-298. The
Act speaks of this economic harm as "disability," defined as the
"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," § 2(10), 33 U. S. C. § 902(10). Such incapacity is
conclusively presumed for certain enumerated or "scheduled"
injuries, which are compensated at 66%% of the worker's preinjury
wages over specified periods of time. See §§ 8(c)(1)-8(c)(20),
8(c)(22), 33 U. S. C. §§ 908(c)(1)-908(c)(20), 908(c)(22);
Potomac Elec. Power Co. v.
Director, Office of Workers'
Compensation Pro-
IJudge Reinhardt dissented in part on other grounds. 81 F. 3d,
at 845.
127
grams, 449
U. S. 268, 269 (1980). For other, so-called "unscheduled"
injuries resulting in less than total disability, the Act sets
compensation at "66% per centum of the difference between the
average weekly [preinjury] wages of the employee and the employee's
wage-earning capacity thereafter." § 8(c)(21), 33 U. S. C. §
908(c)(21) (permanent partial disability); see also §8(e), 33 U. S.
C. §908(e) (temporary partial disability). For figuring this
difference, § 8(h) explains that the claimant's postinjury
"wage-earning capacity" is to be determined
"by his actual earnings if such actual earnings fairly and
reasonably represent his wage-earning capacity: Provided,
however, That if the employee has no actual earnings or his
actual earnings do not fairly and reasonably represent his
wage-earning capacity, the deputy commissioner may, in the interest
of justice, fix such wageearning capacity as shall be reasonable,
having due regard to the nature of his injury, the degree of
physical impairment, his usual employment, and any other factors or
circumstances in the case which may affect his capacity to earn
wages in his disabled condition, including the effect of disability
as it may naturally extend into the future." § 8(h), 33 U. S. C. §
908(h).
See also § 10, 33 U. S. C. § 910 (method for determining
preinjury wages). See generally
Rambo I, 515 U. S., at
297-298.
We may summarize these provisions and their implications this
way. Disability is a measure of earning capacity lost as a result
of work-related injury. By distinguishing between the diminished
capacity and the injury itself, and by defining capacity in
relation both to the injured worker's old job and to other
employment, the statute makes it clear that disability is the
product of injury and opportunities in the job market. Capacity,
and thus disability, is not necessarily reflected in actual wages
earned after injury, see id., at
300-301; Potomac Elec.
Power, supra, at 272, n. 5, and when
128
it is not, the factfinder under the Act must make a
determination of disability that is "reasonable" and "in the
interest of justice," and one that takes account of the
disability's future effects, § 8(h).
In some cases a disparity between the worker's actual postinjury
wages and his job-market capacity will be obvious, along with the
reasons for it. If a disabled worker with some present capacity
chooses not to work at all, or to work at less than his capacity, a
windfall is avoided by determining present disability and awarding
a benefit accordingly. See,
e. g., Penrod Drilling Co. v.
Johnson, 905 F.2d
84, 87-88 (CA5 1990). At the other extreme, a worker with some
present disability may nonetheless be fortunate enough to receive
not merely the market wages appropriate for his diminished
capacity, but full preinjury wages (say, because an employer is
generous, for whatever reason). See,
e. g.,
Travelers
Ins. Co. v.
McLellan, 288 F.2d
250, 251 (CA2 1961); see also
Edwards v.
Director,
OWCp, 999 F.2d
1374, 1375-1376 (CA9 1993) (holding that wages from short-lived
employment do not represent actual earning capacity on open
market). Once again, the present disability may still be calculated
and a corresponding award made.
A problem in applying the provisions applicable when there is a
disparity between current wages and wageearning capacity arises in
a case like this one, however. The worker now receives appropriate
market wages as high or higher than those before his injury, thus
experiencing no decline in present capacity. And yet (we assume for
now) there is some particular likelihood that in the future the
combination of injury and market conditions may leave him with a
lower capacity. The question is whether such a person is presently
disabled within the meaning of the statute, and if so, what
provision should be made for the potential effects of disability in
the future.
There are two reasons to treat such a person as presently
disabled under the statute. The first follows from the provi-
129
sion of law that on its face bars an injured worker from waiting
for adverse economic effects to occur in the future before bringing
his disability claim, which generally must be filed within a year
of injury. § 13(a), 33 U. s. C. § 913(a);
Pillsbury v.
United Engineering Co., 342 U. S. 197 (1952). He
is also barred from seeking a new, modified award after one year
from the date of any denial or termination of benefits. § 22, 33 U.
S. C. § 922. Because an injured worker who has a basis to
anticipate wage loss in the future resulting from a combination of
his injury and job-market opportunities must nonetheless claim
promptly, it is likely that Congress intended "disability" to
include the injury-related potential for future wage 10ss.2 And
because a losing claimant loses for all time after one year from
the denial or termination of benefits, it is equally likely that
Congress intended such a claimant to obtain some award of benefits
in anticipation of the future potential loss.
2 A different conclusion might, perhaps, be drawn from our
observation 46 years ago in
Pillsbury, 342 U. S., at
198-199, that the agency allowed claims to be filed within one year
of injury but before recovery for present disability could be had.
If that practice were assumed to be authorized by the Act, an
injured worker who anticipated future loss of earning capacity
could file a claim within the I-year period permitted by § 13(a)
yet defer litigation of the claim indefinitely until a capacity
loss manifested itself, thereby undercutting our inference from the
limitations provision that present disability must be conceived as
including the potential for future decline in capacity. But it
seems unlikely that when Congress enacted § 13(a) it intended
workers to be able to file claims before they could establish all
the elements entitling them to compensation. Moreover, while the
practical effect of permitting protective filings and indefinitely
deferring adjudication is in one respect the same as awarding
nominal compensation when there is a significant possibility of
future capacity loss, in that both approaches hold open the
possibility of compensating a worker when the potential future
economic effects of his injury actually appear, the former
approach, unlike the latter, has the defect of putting off the
adjudication of every element of the worker's claim, including such
matters as the work-related nature of the injury, until long after
the evidence grows stale. We therefore think that the inference we
draw from the limitations provision is the better one.
130
This conclusion is confirmed by the provision of § 8(h) that in
cases of disparity between actual wages and earning capacity, the
natural effects of disability that will occur in the future must be
given "due regard" as one of the "factors or circumstances in the
case which may affect [a claimant's] capacity to earn wages in his
disabled condition." Although this mandate is phrased in general
terms, its practical effect is limited to the class of cases at
issue here, where the worker is presently able to earn at least as
much as before his injury. In all other cases, when injury
depresses the claimant's wage-earning capacity under the conditions
prevailing at the time of an award, so that the present effects of
his disability are unquestionably compensable immediately, the Act
already makes provision for the future effects of disability by
means of § 22, which liberally permits modification of awards in
response to changed conditions that occur within one year of the
last payment of compensation (or a denial or termination of
benefits). 33 U. S. C. § 922.
Rambo I held that this
provision allows modification whenever a changed combination of
training and economic (let alone physical) circumstances reduces,
restores, or improves wage-earning capacity. 515 U. S., at
296-297.3 Since ongoing awards may be modified if future
possibilities become present realities, there is no need to account
for such possibilities in calculating a worker's immediately
compensable disability; the Act plainly takes a wait-and-see
approach to future contingencies here.4 The first award in this
case was
3 As we noted in
Rambo I, however, not every fluctuation
in actual wages is a ground for modification, but only those shifts
reflecting a change in the worker's underlying capacity, see 515 U.
S., at 300-301, such as a change in physical condition, skill
level, or the availability of suitable jobs. "There may be cases
raising difficult questions as to what constitutes a change in
wage-earning capacity, but we need not address them here."
Ibid.
4 In liberally permitting modification, the Act resembles
virtually all other workers' compensation schemes. See 3 A. Larson
& L. Larson, Law of Workmen's Compensation § 81.10, p. 15-1045
(1996). "[I]t is one of the
131
a standard illustration of the proper practice of basing
capacity determinations and compensation awards on present reality.
If Rambo's initial award had already been discounted to reflect the
odds of his obtaining less strenuous but higher paying work in the
future,
Rambo I could hardly have held that the Act
permitted reduction of that initial award again when Rambo actually
received training as a crane operator and found work using his new
skills. The first award simply reflected the degree of diminished
capacity operative at the time it was made, and it was proper to
revise it when conditions changed.
Thus, if § 8(h)'s admonition to consider future effects when
calculating capacity has any practical application, it must be
because it may apply in a case such as this one, in which there is
no present wage loss and would thus be no present award if
compensation were to be based solely on present employment
conditions. If the future were ignored and compensation altogether
denied whenever present earning capacity had not (yet) declined, §
22 would bar modification in response to future changes in
condition after one year.
main advantages of the reopening device [in workers'
compensation schemes] that it permits a commission to make the best
estimate of disability it can at the time of the original award,
although at that moment it may be impossible to predict the extent
of future disability, without having to worry about being forever
bound by the first appraisal."
Id., § 81.31(a), at 15-1127
to 15-1132 (footnotes omitted).
The need for finality in workers' compensation awards is further
reduced because compensation is paid periodically over the life of
the disability, rather than in a lump sum, see §§ 14(a), (b), 33 U.
S. C. §§ 914(a), (b) (providing for periodic payment of
compensation). Thus, modifying a worker's compensation award
generally affects future payments only, rather than retroactively
adjusting a prior lump-sum payment. "Under the typical award in the
form of periodic payments ... , the objectives of [workers'
compensation] legislation are best accomplished if the commission
can increase, decrease, revive, or terminate payments to correspond
to a claimant's changed condition," subject, under most such laws,
to certain time limitations. 3 Larson, Law of Workmen's
Compensation §81.10, at 15-1045; id., §81.21, at 15-1046 to
15-1047.
132
To implement the mandate of § 8(h) in this class of cases, then,
"disability" must be read broadly enough to cover loss of capacity
not just as a product of the worker's injury and present market
conditions, but as a potential product of injury and market
opportunities in the future. There must, in other words, be a
cognizable category of disability that is potentially substantial,
but presently nominal in character.
There being, then, a need to account for potential future
effects in a present determination of wage-earning capacity (and
thus disability) when capacity does not immediately decline, the
question is which of two basic methods to choose to do this. The
first would be to make a one-time calculation of a periodic benefit
following the approach of the common law of torts, which bases
lump-sum awards for loss of future earnings on an estimate of "the
difference ... between the value of the plaintiff's services as
they will be in view of the harm and as they would have been had
there been no harm." Restatement (Second) of Torts § 924, Comment
d, p. 525 (1977). This predictive approach ordinarily requires
consideration of every possible variable that could have an impact
on ability to earn, including "[e]nvironmental factors such as the
condition of the labor market, the chance of advancement or of
being laid off, and the like." 4 F. Harper, F. James, & O.
Gray, Law of Torts § 25.8, pp. 550-551 (2d ed. 1986) (footnote
omitted). Prediction of future employment may well be the most
troublesome step in this wide-ranging enquiry. As the tripling of
Rambo's own earnings shows, a claimant's future ability to earn
wages will vary as greatly as opportunity varies, and any estimate
of wage-earning potential turns in part on the probabilities over
time that suitable jobs within certain ranges of pay will actually
be open. In these calculations, there is room for error.5 Cf. id.,
§ 25.8, at 553
5 As a simplified example of the sort of calculation that would
be required under this approach, a factfinder might decide in the
present case that Rambo has a 75% chance of keeping work as a crane
operator with
133
(to determine lost wage-earning capacity, juries must often "use
their judgment (in effect, ... speculate)"). That juries in tort
cases must routinely engage in such difficult predictions
(compounded further by discounting for present value) is the price
paid by the common-law approach for the finality of a one-time
lump-sum judgment.
The second possible way to account for future developments would
be to do in this situation just what the Act already does through
the modification provision in the run of cases: to wait and see,
that is, to base calculation of diminished wage-earning capacity,
and thus compensation, on current realities and to permit
modifications reflecting the actual effects of an employee's
disability as manifested over time. This way, finality is exchanged
for accuracy, both in compensating a worker for the actual economic
effects of his injury, and in charging the employer and his insurer
for that amount alone.
Metropolitan denies that the second, wait-and-see alternative is
even open, arguing that § 8(h) gives the factfinder only two
choices: either deny compensation altogether because a claimant's
actual wages have not diminished, or, if the ALJ concludes that the
worker's current income does not fairly represent his present
wage-earning capacity, calculate the
annual earnings of $60,000, and a 25% chance of being laid off
from that job and remaining unemployed with no income because his
injuries would prevent him from performing more strenuous work, for
a weighted average future wage-earning capacity of $45,000.
(($60,000 x .75) + ($0 x .25) = $45,000.) Of course, even if the
factfinder somehow got the probabilities and earnings for each
possible future state right, the weighted average future capacity
would rarely correspond to actual developments. In our
hypothetical, Rambo's actual future capacity would be $15,000 a
year more than his predicted capacity if he kept his job as a crane
operator, and $45,000 less if he lost that job and found no other.
Thus, if a compensation award were based on the weighted average,
Rambo would necessarily end up either overcompensated or
undercompensated, even though the Act might meet its objectives for
the system as a whole.
134
extent of the worker's disability (and his consequent
entitlement to compensation)
in toto based on all relevant
factors, including the future effects of the disability. See Brief
for Petitioner 9. What we have already said, however, shows the
unsoundness of Metropolitan's two options.
The practical effect of denying any compensation to a disabled
claimant on the ground that he is presently able to earn as much as
(or more than) before his injury would run afoul of the Act's
mandate to account for the future effects of disability in
fashioning an award, since those effects would not be reflected in
the current award and the i-year statute of limitations for
modification after denial of compensation would foreclose
responding to such effects on a wait-andsee basis as they might
arise.6 On the other hand, trying to honor that mandate by basing a
present award on a comprehensive prediction of an inherently
uncertain future would, as we have seen, almost always result in
present overcompensation or undercompensation. And it would be
passing strange to credit Congress with the intent to guarantee
fairness to employers and employees by a wait-and-see approach in
most cases where future effects are imperfectly foreseeable, but to
find no such intent in one class of cases, those in which
wage-earning ability does not immediately decline.7
6 The one possible escape from this conclusion rests on an
implausible reading of the Act. A claimant could, arguably,
preserve a right to compensation in the future by reapplying within
the I-year period and successively each year thereafter. See § 22,
33 U. S. C. § 922 (permitting modification "at any time prior to
one year after the rejection of a claim"). But this would be a
strange way to administer the Act, for its very premise is that a
claimant would repeatedly file reapplications knowing his
disability to be without present effect and (on Metropolitan's
theory) himself without any good-faith claim to the present
compensation sought.
7 The legislative history to the 1938 amendments to the Act,
which added § 8(h), indicates that Congress understood that the
reference to future effects in the new subsection would interact
with § 22 by allowing compensation for permanent partial disability
for employees whose job opportunities are narrowed by injury but
whose wages have not declined:
135
There is moreover an even more fundamental objection to
Metropolitan's proposed options. They implicitly reject the very
conclusion required to make sense of the combined provisions
limiting claims and mandating consideration of future effects: that
a disability whose substantial effects are only potential is
nonetheless a present disability, albeit a presently nominal one.
It is, indeed, this realization that points toward a way to employ
the wait-and-see approach to provide for the future effects of
disability when capacity does not immediately decline. It is simply
"reasonable" and "in the interest of justice" (to use the language
of §8(h)) to reflect merely nominal current disability with a
correspondingly nominal award. Ordering nominal compensation holds
open the possibility of a modified award if a future conjunction of
injury, training, and employment opportunity should later depress
the worker's ability to earn wages below the preinjury level,
turning the potential disability into an actual one. It allows full
scope to the mandate to consider the future effects of disability,
it promotes accuracy, it preserves administrative simplicity by
obviating cumbersome enquiries relating to the entire range of
possible future states of affairs,s and it avoids imputing to
Congress the unlikely intent
"[Section 8(h)] provides for consideration of the effects of an
injury ... upon the employee's future ability to earn .... Often an
employee returns to work earning for the time being the same wages
as he earned prior to injury, although still in a disabled
condition and with his opportunity to secure gainful employment
definitely limited .... It is clear that in such a case the
employee's ability to compete in the labor market has been
definitely affected; and, though at present the employee is paid
his former full-time earnings, he suffers permanent partial
disability which should be compensable under the ... Act .... "In a
case such as that ... , an unscrupulous employer might with profit
to himself continue the original wages ... until the ... right of
review of the case (sec. 22) had run, ... thus defeat[ing] the
beneficent provisions of the ... Act." H. R. Rep. No. 1945, 75th
Cong., 3d Sess., 5-6 (1938); S. Rep. No. 1988, 75th Cong., 3d
Sess., 1 (1938).
8See
Walters v.
Metropolitan Ed. Enterprises,
Inc., 519 U. S.
202, 208, 210-211 (1997) (weighing administrative simplicity in
favor of permissible construction of statute).
136
to join a wait-and-see rule for most cases with a
predict-thefuture method when the disability results in no current
decline in what the worker can earn.
Our view, as it turns out, coincides on this point with the
position taken by the Director of the Office of Workers'
Compensation Programs (OWCP), who is charged with the
administration of the Act, and who also construes the Act as
permitting nominal compensation as a mechanism for taking future
effects of disability into account when present wageearning ability
remains undiminished. See Brief for Director, Office of Workers'
Compensation Programs 12-21, 24-31. The Secretary of Labor has
delegated the bulk of her statutory authority to administer and
enforce the Act, including rulemaking power, to the Director, see
Director, Office of Workers' Compensation Programs v.
Newport News Shipbuilding &
Dry Dock Co.,
514 U. S. 122,
125-126 (1995);
Ingalls Shipbuilding, Inc. v.
Director,
Office of Workers' Compensation Programs, 519 U. S. 248, 262-263
(1997), and the Director's reasonable interpretation of the Act
brings at least some added persuasive force to our conclusion, see,
e. g.,
Skidmore v.
Swift &
Co.,
323 U. S. 134,
140 (1944) (giving weight to agency's persuasive interpretation,
even when agency lacks "power to control");
Robinson v.
Shell Oil Co., 519 U. S. 337, 345-346
(1997).
There is, of course, the question of how high the potential for
disability need be to be recognized as nominal, but that is an
issue not addressed by the parties, and it would be imprudent of us
to address it now with any pretense of settling it for all time.
Here it is enough to recall that in those cases where an injury
immediately depresses ability to earn wages under present
conditions, the payment of actual compensation holds open the
option of modification under § 22 even for future changes in
condition whose probability of occurrence may well be remote at the
time of the original award. Consistent application of the Act's
wait-and-see approach thus suggests that nominal compensation
permitting
137
future modification should not be limited to instances where a
decline in capacity can be shown to a high degree of statistical
likelihood. Those courts to have dealt with the matter explicitly
have required a showing that there is a significant possibility
that a worker's wage-earning capacity will at some future point
fall below his preinjury wages, see
Hole v.
Miami
Shipyards Corp., 640 F.2d
769, 772 (CA5 1981);
Randall v.
Comfort Control,
Inc., 725 F.2d
791, 800 (CADC 1984), and, in the absence of rulemaking by the
agency specifying how substantial the possibility of future decline
in capacity must be to justify a nominal award, we adopt this
standard.9
9 The OWCP Director argues that when the employee has the burden
of persuasion, the Administrative Procedure Act's (APA's)
preponderance of the evidence standard (see
infra, at 139)
requires him to show that an injury-related future decline in wages
is more likely than not to occur. Brief for Director, Office of
Workers' Compensation Programs 22-23. The Director's position
confuses the degree of certainty needed to find a fact or element
under the preponderance standard with the fact or element to be so
established, which in this case is the statistical odds that
wageearning capacity will decline in the future. "The burden of
showing something by a preponderance of the evidence ... simply
requires the trier of fact to believe that the existence of a fact
is more probable than its nonexistence before [he] may find in
favor of the party who has the burden to persuade the [judge] of
the fact's existence."
Concrete Pipe &
Products of
Cal., Inc. v.
Construction Laborers Pension Trust for
Southern Cal., 508 U. S. 602, 622 (1993)
(internal quotation marks omitted). In other words, the
preponderance standard goes to how convincing the evidence in favor
of a fact must be in comparison with the evidence against it before
that fact may be found, but does not determine what facts must be
proven as a substantive part of a claim or defense. See
Greenwich Collieries v.
Director, OWCp, 990 F.2d
730, 736
(CA3 1993) ("A preponderance of the evidence is
... [e]vidence which is ... more convincing than the evidence ...
offered in opposition to it ... " (internal quotation marks
omitted)), aff'd,
512
U. S. 267 (1994). Unlike other standards of proof such as
reasonable doubt or clear and convincing evidence, the
preponderance standard "allows both parties to share the risk of
error in roughly equal fashion,"
Herman &
MacLean
v.
Huddleston, 459 U. S. 375, 390 (1983)
(internal quotation marks omitted), except that "when the evidence
is evenly balanced, the [party with the burden of persuasion] must
lose,"
Director, Of-
138
We therefore hold that a worker is entitled to nominal
compensation when his work-related injury has not diminished his
present wage-earning capacity under current circumstances, but
there is a significant potential that the injury will cause
diminished capacity under future conditions.
III
The application of this legal standard to the case before us
depends in part on how the burden of persuasion is allocated.
Section 7(c) of the APA, 5 U. S. C. §556(d), which applies to
adjudications under the Act, see
Director, Office of Workers'
Compensation Programs v.
Greenwich Collieries, 512 U. S. 267, 270
(1994), places the burden of persuasion on the proponent of an
order, id., at 272-281; when the evidence is evenly
fice of Workers' Compensation Programs v.
Greenwich
Collieries, 512 U. S. 267, 281 (1994). Thus, under the
preponderance standard, proof that a future decline in capacity is
more likely than not (in the sense that the evidence predicting
such a decline is more convincing than the evidence predicting
none) would be required only if the fact of such a decline, rather
than some degree of probability of its occurrence, were a
substantive element of a claim for nominal compensation, which the
Director does not maintain.
Even assuming that the Director's formally promulgated
construction of the LHWCA would be entitled to deference under
Chevron U. S.
A. Inc. v.
Natural Resources Defense
Council, Inc., 467 U. S. 837 (1984), see
Director, Office of Workers' Compensation Programs v.
Newport News Shipbuilding &
Dry Dock Co.,
514 U. S. 122,
134 (1995), we do not defer to the Director's interpretation here
of the APA's provision for allocating the burden of persuasion
under the preponderance of the evidence standard, for three
reasons. (1) The APA is not a statute that the Director is charged
with administering. Cf.
Ardestani v.
INS, 502 U. S. 129, 148 (1991)
(Blackmun, J., dissenting);
Chevron, supra, at 842;
Professional Reactor Operator Soc. v.
NRC, 939 F.2d
1047, 1051 (CADC 1991). (2) This interpretation does not appear
to be embodied in any regulation or similar binding policy
pronouncement to which such deference would apply. See
Smiley v.
Citibank (South Dakota), N. A., 517 U. S. 735, 740-741
(1996); 1 K. Davis & R. Pierce, Administrative Law Treatise §
3.5, p. 120 (3d ed. 1994). (3) The interpretation is couched in a
logical non sequitur, as just explained.
139
balanced, the proponent loses, see id., at 281. On the initial
claim for nominal compensation under the Act, then, the employee
has the burden of showing by a preponderance of the evidence that
he has been injured and that the odds are significant that his
wage-earning capacity will fall below his preinjury wages at some
point in the future. But when an employer seeks modification of
previously awarded compensation, the employer is the proponent of
the order with the burden of establishing a change in conditions
justifying modification. In a case like this, where the prior award
was based on a finding of economic harm resulting from an actual
decline in wage-earning capacity at the time the award was entered,
the employer satisfies this burden by showing that as a result of a
change in capacity the employee's wages have risen to a level at or
above his preinjury earnings. Once the employer makes this showing,
§ 8(h) gives rise to the presumption that the employee's
wage-earning capacity is equal to his current, higher wage and, in
the face of this presumption, the burden shifts back to the
claimant to show that the likelihood of a future decline in
capacity is sufficient for an award of nominal compensation. We
emphasize that the probability of a future decline is a matter of
proof; it is not to be assumed
pro forma as an
administrative convenience in the run of cases.
In this case, the first award of compensation was based on the
parties' stipulation that Rambo suffered 22112% permanent partial
disability as a result of his injury, whereby Rambo established
that the injury impaired his ability to undertake at least some
types of previously available gainful labor and thus prevented him
from earning as much as he had before his accident. Metropolitan
sought termination of the award based solely on evidence, which the
ALJ found persuasive, that Rambo is now able to earn market wages
as a crane operator significantly greater than his preinjury
earnings. There is therefore substantial evidence in the record
supporting the ALJ's decision to terminate actual (as
140
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.1o
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, owep,
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.
141
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,
142
a finding of future economic harm must be supported by a
preponderance of the evidence pursuant to the Administrative
Procedure Act (APA), 5 U. S. C. §551
et seq., in order to
affect a claimant's wage-earning capacity. Finally, because I read
the ALJ's decision as expressly finding that respondent Rambo will
probably suffer no future loss of earning power, and because that
finding is supported by substantial evidence, I would reverse the
decision of the Court of Appeals and direct the entry of judgment
for petitioner Metropolitan Stevedore Co.
I
My first point of disagreement with the Court is over how an ALJ
should fix the wage-earning capacity of a worker like Rambo, whose
current wages exceed his preinjury wages, but who claims that his
ability to earn money may drop in the future. Section 8(h) of the
LHWCA provides:
"The wage-earning capacity of an injured employee in cases of
partial disability ... shall be determined by his actual earnings
if such actual earnings fairly and reasonably represent his
wage-earning capacity: Provided, however, That if the
employee has no actual earnings or his actual earnings do not
fairly and reasonably represent his wage-earning capacity, the
deputy commissioner may, in the interest of justice, fix such
wageearning capacity as shall be reasonable, having due regard to
the nature of his injury, the degree of physical impairment, his
usual employment, and any other factors or circumstances in the
case which may affect his capacity to earn wages in his disabled
condition, including the effect of disability as it may naturally
extend into the future."
The Court holds that § 8(h) permits an adjudicator simply to
postpone any determination of whether the worker will suffer a loss
in earning power so long as there is a "significant possibility"
that such a loss will someday come to pass.
143
Ante, at 137. Until then, the Court rules, the ALJ can
award nominal compensation, thereby propping open the agency's door
for the worker to seek modification of the award in the future.
In my opinion, the LHWCA does not permit an ALJ to award purely
nominal benefits in order to guard against the possibility of a
future drop in earning power. Instead, the Act requires that a
future reduction in a longshoreman's ability to earn money be
immediately factored into a
present determination of his
wage-earning capacity. That an ALJ must make a concrete, immediate
finding about a worker's wage-earning capacity is dictated by the
language of § 8(h), which calls for a determination whether a
worker's actual earnings "fairly and reasonably represent his
wage-earning capacity." A comparison between a worker's current
wages and his earning potential is possible only if the ALJ assigns
a dollar amount to the claimant's wage-earning capacity. Section
8(h) further instructs that, if the worker's current pay does not
correspond to his true earning capacity, the adjudicator must "fix
such wage-earning capacity as shall be reasonable." Again,
"fix[ing]" the worker's wage-earning capacity requires the ALJ to
make a definite assessment of whether the claimant's capacity has
gone up, down, or remained the same; it leaves no room for the
equivocal finding that a worker's capacity might have changed.
The "wage-earning capacity" that an ALJ must fix is a composite
concept, measured partly by the claimant's present earning ability
and partly by his future earning ability. Accordingly, the ALJ's
finding must reflect predictable changes in the worker's ability to
earn wages. Section 8(h) lists the main factors to be taken into
account: the nature of his injury, the degree of physical
impairment, his usual employment, and the effect of the disability
as it may naturally extend into the future. Thus, if an ALJ credits
a doctor's testimony that a claimant can work for only five years
before his injury leaves him bedridden, that worker would
144
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 wageearning 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 confiates 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 wageearning 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
145
the claimant's wage-earning capacity. The catch is that § 22
permits recognition of changed conditions only within one year of
the denial of a claim or the last payment on an award.
The Court's mechanism for awarding nominal damages is designed
solely to circumvent § 22's i-year limit for reopening terminated
or denied claims. The Court effectively recognizes as much, since
it candidly admits that under its approach, "finality is exchanged
for accuracy."
Ante, at 133. That is, the i-year limitations
period established by § 22 is sacrificed in order to avoid the
overcompensation and undercompensation that may result from a
straightforward application of the LHWCA.
Ibid. Congress has
already evaluated these policy concerns, however, and has come down
on the side of finality by enacting § 22. When a worker cannot
demonstrate a reduction in his wage-earning capacity, in terms of
his present or future ability to obtain gainful employment, § 22
gives that employee only one year to show that conditions have
changed. To hold open a case simply because a "change in
conditions" may someday arise certainly violates the spirit, if not
the letter, of § 22.
The proper tradeoff between finality and accuracy is open to
reasoned debate. Indeed, some state legislatures have agreed with
the Court that when a worker does not immediately suffer as a
result of his work-related injury, it is better to postpone
compensation until his disability manifests itself. Accordingly,
they have amended their workers' compensation statutes to allow
precisely the sort of nominal-benefits mechanism that the Court
approves today. See,
e. g., Cal. Lab. Code Ann. § 5802 (West
1989) ("If, in any proceeding under this division, it is proved
that an injury has been suffered ... , but it is not proved that
any disability has resulted, the appeals board may, instead of
dismissing the application, award a nominal disability indemnity,
if it appears that disability is likely to result at a future
time"). But until Congress amends the LHWCA, I do not think that
the Court's approach is open to us. I would therefore hold that
146
an ALJ cannot circumvent § 22's i-year limitations period by
awarding nominal compensation. He must instead make a present
determination of the longshoreman's wage-earning capacity, taking
into account both his present and future ability to earn money.
II
I further believe that the AP A requires that a claimant's
future economic injury be proved by a preponderance of the evidence
before such an injury can provide a basis for awarding disability
benefits under the LHWCA. This is true regardless of whether such a
finding leads to an award of nominal benefits (as the Court holds)
or whether such an injury should instead be factored into a
claimant's wage-earning capacity immediately (as I believe). I
therefore disagree with the Court's holding that merely a
"significant possibility" of a future drop in a worker's
wage-earning potential is relevant to a present benefits
determination.
As explained in Part I, the ultimate fact to be determined in an
LHWCA benefits proceeding is a worker's "wageearning capacity,"
which has both a present and a future component. Thus, contrary to
the Court, I think that "the fact of such a decline [in a worker's
wage-earning capacity], rather than some degree of probability of
its occurrence,"
ante, at 138, n. 9, must be shown in order
to justify a finding of disability. The Court recognizes that the
AP A governs benefit determinations under the LHWCA,
ante,
at 138, so that "the proponent of a rule or order has the burden of
proof," 5 U. s. C. § 556(d); see 33 U. s. C. § 919(d) ("[A]ny
hearing held under [the LHWCA] shall be conducted in accordance
with the provisions of" the AP A). And this proof must be by a
preponderance of the evidence.
Director, Office of Workers'
Compensation Programs v.
Greenwich Collieries, 512 U. S. 267, 270-271
(1994). It follows that whether a worker has a reduced wage-earning
capacity is a fact to be determined by a preponderance of the
evidence.
147
The Court's "significant possibility" standard falls far short
of the AP A's preponderance of the evidence standard. Indeed,
although the Court fails to define its standard with any
specificity, it at least tells us that a "significant possibility"
is certainly less than a "high degree of statisticallikelihood."
Ante, at 137. Thus, a longshoreman whose paycheck has not
shrunk, and is unlikely ever to shrink, below preinjury levels is
apparently entitled to an award of nominal damages under the
Court's holding today. Such a result, it seems to me, is exactly
backwards.
Not only does the "significant possibility" standard conflict
with the AP A, but the Court plucks it out of thin air. The Court
seems to rely purely on its perception of "symmetry" in the LHWCA:
Where an injury immediately depresses a worker's ability to earn
wages, "the payment of actual compensation holds open the option of
modification under § 22 even for future changes in condition whose
probability of occurrence may well be remote at the time of the
original award. Consistent application of the Act's wait-and-see
approach thus suggests that nominal compensation permitting future
modification should not be limited to instances where a decline in
capacity can be shown to a high degree of statistical likelihood."
Ante, at 136-137. But if symmetry is the goal, then there
should logically be no threshold showing (beyond the injury itself)
required to award nominal benefits under the LHWCA. Because § 22
permits modification of ongoing awards even for
completely
unforeseeable changes of conditions, "[c]onsistent application"
of the Court's "waitand-see" theory (derived from § 22) would call
for keeping open
every case to guard against the possibility
that new events might someday reduce a worker's wage-earning
capacity. The Court apparently realizes that such a result would
completely eviscerate § 22's i-year limitations period, and so it
feels obliged to screen out at least the most attenuated claims
that conditions may change in the future. As a stopgap, it invents
the "significant possibility" test.
148
This supposed "asymmetry" in the LHWCA is not something to be
circumvented, however, since it is attributable to Congress'
decision to place a strict i-year time limit on the reopening of
denied or terminated claims. Under the proper interpretation of the
LHWCA, a worker's wageearning 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 i-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-
149
ant no longer has a wage-earning capacity loss. Although
Claimant testified that he might lose his job at some future time,
the evidence shows that Claimant would not be at any greater risk
of losing his job than anyone else. Moreover, no evidence has been
offered to show that Claimant's age, education, and vocational
training are such that he would be at greater risk of losing his
present job or in seeking new employment in the event that he
should be required to do so. Likewise, the evidence does not show
that Claimant's employer is a beneficent one."
Id., at 55.
As I read this statement, the ALJ found that Rambo's current
earnings adequately reflected his future job prospects-that is, he
found that Rambo would not suffer any future economic loss due to
his injury.
The ALJ's findings must be upheld if they are supported by
substantial evidence. See 33 U. S. C. § 921(b)(3) (setting standard
of review that Benefits Review Board must apply to ALJ's findings).
The substantial evidence standard is extremely deferential to the
factfinder: "Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."
Consolidated Edison Co.
v.
NLRB, 305 U. S. 197, 229 (1938). Based on the evidence
submitted by the parties, a "reasonable mind" could undoubtedly
have found that Rambo's current earnings accurately reflected his
wage-earning capacity, with regard to both his present and future
job prospects. Rambo testified that he had learned to operate
cranes and heavy lift trucks (tasks that he can perform despite his
injury), App. 30-31; that he had worked steadily as a crane
operator for one shipping line for the last 2lf2 years, id., at 37;
and that his new job paid a much higher wage than he had received
before his injury, id., at 38. The record clearly permitted a
finding that, despite his injury, Rambo "no longer has a
wage-earning capacity loss."
Id., at 55.
150
Because the ALJ properly found that Rambo's current earnings
reasonably reflected his wage-earning capacity, I see no need to
remand this case for further proceedings simply to demand of the
ALJ a finding that he has already made. The Benefits Review Board's
denial of compensation should be upheld and the Court of Appeals'
decision should be reversed.
Comments
Be the first to comment
Leave a Comment