What I am doing at work: A routine de minimus award workers' comp decision. In this case, the employer voluntarily paid temporary total disability compensation to the injured worker. However, the worker believes that in the future his work-relayed injury is likely to affect his ability to earn a wage. Mind you, he has no loss of wage-earning capacity at the present, only the belief that his future wage-earning capacity may be jeopardized by an as yet unrealized effect of his work-place injury. Thus, he seeks what is called a nominal or de minimus award. This nominal award is not based on any actual present loss of wage-earning capacity (which is the measure of compensation under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq.). Rather, the nominal award is method whereby a worker who anticipates that his injury will one day affect his earning capacity can keep open indefinitely the filing period for a motion for modification. See generally Metropolitan Stevedore Co. v. Rambo [Rambo II], 521 U.S. 121 (1997).*

A motion for modification under section 22 of the LHWCA (which may be filed by either party) can be filed any time before one year after the last date on which the worker is paid compensation. Ordinarily, this presents little problem for a presently disabled worker whose condition (and, thus, his wage-earning capacity) deteriorates over time. Since he will already be receiving compensation as a result of his current loss of wage-earning capacity, the tolling of the time period for filing any modification request will not commence. However, for a worker who is currently earning as much or more as he did prior to his injury (for a variety of reasons, but usually because he takes a foreman-type job in the same shop), but expects that this will change in the future as a result of the injury, is in trouble. That is because he is not currently receiving any compensation, and, thus, the one-year period for filing a modification request will likely expire before he actually suffers the lose of wage-earning capacity.

Enter the nominal award. The United States Supreme Court determined in Rambo II that the LHWCA permits an administrative law judge to award to the worker an ongoing nominal amount of compensation - typically 1 percent of the worker's pre-injury average weekly wage - when the worker can establish that there is "some particular likelihood that in the future the combination of injury and market conditions may leave him with a lower [wage-earning] capacity." Rambo II 521 U.S. at 128. The employee must present evidence of a "disability that is potentially substantial, but presently nominal in character." Id. at 132. The end result when a nominal award is granted is that the worker remains free to file a motion for modification whenever his condition eventually worsens and his wage-earning capacity decreases, thus making an end-run around the one-year time limit that would otherwise bar him from future compensation.

So what will Fitz-Hume the judge decide? The likely result is that this claimant will lose. There is no specific evidence that his injury will worsen or that the worsened injury is likely to effect his earning capacity. Similarly, there is no evidence that his current job is somehow in jeopardy. All he has is a generalized argument that he may get worse and he needs to keep his options open. That falls far short of the standard. If this guy is eligible for a nominal award, then all injured longshoremen are eligible for one.

*Yes, the claimant's name is John Rambo. No, the case is not referred to as First Blood: Part II. Well, it is, but only by me.

What I am doing at home: Running and playing X-box with one of my younger brothers who is staying with me for the month. In particular, we have been enjoying Simpson's Road Rage, Red Dead Revolver, and The Lord of the Rings: The Return of the King. I highly recommend each.

What I am reading: Outside Magazine and The Atlantic Monthly.

What I am watching: Not much - playing X-box instead.

What I am listening to: Nothing. I'm sick of my music, I don't want to pay for new music, but I will not illegally download music from the net.

What I am thinking about: A couple of things. First, I wonder why our government, which clearly knows that torture does not produce reliable results, on at least some level authorized and approved of the use of torture in the current conflicts. We know it isn't reliable, we know it is not as effective as professional interrogation, we know that the probability of abuse is virtually guaranteed, and yet we still gave the go ahead on the use of torture. I'd like to know why in the face of contrary information we decided to okay this.

Second, and on a much lighter note, I am in the post-interview debriefing stage. I returned to Casa de Fitz-Hume on Saturday after a cross-country jaunt to Nevada (at this point in my search I can't be too choosy). I interviewed on Thursday morning in Carson City - which seems like a nice enough place - and spent the rest of the day hiking in the mountains above Lake Tahoe, which is less than 30 minutes from Carson City. The mountains there are beautiful beyond description (stay tuned for photos). On the return leg of my journey, I ended up volunteering my seat on the flight from DFW to home, stayed in a hotel for free, got a $300 voucher from the airline, and had a little BBQ and beer in the Lone Star State. Friday was the first time I had been back to Texas in 3 years, and it was worth all the hassles with the airline.

What I could give a shit about: The NBA drafting pre-teens and Bill Clinton's memoirs. Add to that list Michael Moore and his new movie. Yeah, sure, I need to see it. Why? Because it's important. Really? So was BarBri, and I got through the bar exam without taking it. If Justice Thomas can get a seat on the Supreme Court without having ever discussed Roe v. Wade, then I can get through life without ever seeing Fahrenheit 9/11. I don't plan to offer my opinions on the movie, so whether I see it or not seems irrelevant. I did see his previous movie Bowling for Columbine and it was a pathetic smear job and a travesty of truth telling. I don't need to see the same techniques applied to W and Iraq.

Having said that, if you want to see the movie, go right ahead and be my guest. Just don't try and convince me that I need to see it too. Go sell crazy some place else, we're all full here.