Disability Law

"Preponderance of the Evidence" Instead of "Competent Substantial Evidence" Standard Applies in Determining Estoppel

By David A. McCranie, Esq.

Branham v. TMG Staffing, decided on 6/18/2008, is another case involving whether the employer is estopped from asserting the statute of limitations as a defense to a claim where it allegedly failed to mail to the claimant the informational brochure mandated by §440.185(4).  The claims adjuster in the case admitted that she had sent the brochure to the wrong address.  Nevertheless, because he later returned to the employer some executed forms which were also contained in the same mailing, the employer contended that he obviously had in fact received the brochure.  The JCC agreed, finding that there was "no competent substantial evidence" that he did not receive the brochure.

The First DCA reversed the JCC's order, concluding that he had applied an incorrect legal standard in reaching his conclusion.  Specifically, said the court, the JCC should have applied the "preponderance of the evidence" standard instead of the "competent substantial evidence" standard in deciding whether the claimant had received the brochure.  The court therefore remanded the case to the JCC for that determination.

Maybe I'm confused, but isn't "preponderance of the evidence" a higher evidentiary standard than "competent substantial evidence"?  The court certainly said so in Schafrath v. Marco Bay Resort, Ltd., 608 So.2d 97 (Fla. 1st DCA 1992).  And if so, isn't the JCC's error here harmless?  In other words, if there isn't even any "competent substantial evidence" to prove that the claimant did not receive the brochure, isn't there also no "preponderance of the evidence" that he didn't?

Full post as published by Florida Workers’ Compensation Law Blog on June 18, 2008 (boomark / email).