Disability Law

Application of "Competent Substantial Evidence" Standard Harmless Error

By David A. McCranie, Esq.

In Branham v. TMG Staffing Services, a case which I wrote about here, the First DCA reversed an order in which the JCC had found that there was "no competent substantial evidence" that the claimant had ever received from the carrier the informational brochure required by §440.185(4), Fla. Stat.  Based upon this finding, the JCC concluded that the E/C was not estopped from asserting a statute of limitations defense to the payment of the claim.  On appeal, however, the First DCA concluded that the JCC should have applied the "preponderance of the evidence" standard to this issue rather than the "competent substantial evidence standard.  I wondered at that time why any such error was not harmless since "preponderance of the evidence" is a higher evidentiary standard than "competent substantial evidence."

On rehearing, a majority of the panel agreed, withdrawing its previous opinion and issuing this opinion on 10/22/2008.

Full post as published by Florida Workers’ Compensation Law Blog on October 23, 2008 (boomark / email).