The Art of Avoiding Surprises: A practitioner’s guide to substantial evidence and the WCAB’s power to develop the record

By Randy H. Pollak, esq.

Substantial evidence. It’s the bedrock standard for the Workers’ Compensation Appeals Board (WCAB).  All decisions they make must be supported by substantial evidence.  Otherwise, the WCAB has a duty to develop the record so they can get evidence that is substantial. 

Unfortunately, litigants to Workers’ Compensation cases often do not identify in advance of trial whether their evidence meets this standard.  There are piles and piles of WCAB decisions every year which are testament to that fact. 

As a practitioner, it can be quite embarrassing to inform your client that a specific outcome is expected at trial, only to receive from the WCAB a decision that develops the record. What’s more uncomfortable than predicting to your client a “take nothing” decision, only to have to inform them after trial that the WCAB has now ordered additional medical-legal reports?

Do you know whether your evidence is substantial?  Do you know how to identify if it is?  Do you know the parameters used by the WCAB to develop the record when evidence is not substantial?  As a workers’ compensation practitioner, it’s vital that you answer these questions in the affirmative.

Moreover, the skills needed to accurately address these questions may vary by the issue involved.  For example, medical-legal reports addressing compensability may make the common error of not being based on a correct legal theory, thus rendering it not substantial evidence. Whereas, a common issue with an apportionment determination is that it does not provide an adequate rationale for the non-industrial apportionment.  The practitioner must be versatile in applying their skills to different legal issues.

Take charge of your skills and register for the upcoming 2/21/20 webinar “The Art of Avoiding Surprises: A practitioner’s guide to substantial evidence and the WCAB’s power to develop the record.”  In this presentation you’ll learn the foundational pieces of substantial evidence, what issues commonly come up in most cases, and how the WCAB decides to develop the record.  With this webinar, you’ll strengthen your skills, and hopefully, avoid unpleasant surprises.