Cite as: 521 U. S. 121 (1997)
Opinion of the Court
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 wage-earning 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-
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