Branham v. TMG Staffing Services

994 So. 2d 1172, 2008 Fla. App. LEXIS 16422, 2008 WL 4643804

Opinions

OPINION ON MOTION FOR REHEARING AND MOTION FOR CLARIFICATION

THOMAS, J.

This cause is before us on Appellee’s motion for rehearing and/or clarification. We grant Appellee’s motion and, accordingly, withdraw our previously published opinion dated June 18, 2008, and substitute the following opinion in its place.

We affirm the ruling of the Judge of Compensation Claims (JCC) finding that Appellant failed to prove that he did not receive notice of the applicable statute of limitations. Even if the JCC applied the incorrect standard in evaluating the evidence, we agree with Appellee that if such error occurred, it was harmless. Because the JCC found that Appellant failed to demonstrate by competent and substantial evidence that he did not receive notice, it logically follows that Appellant cannot demonstrate such lack of notice by a preponderance of the evidence. The competent, substantial evidence standard is a lesser standard than the preponderance of the evidence standard. See Schafrath v. Marco Bay Resort, Ltd., 608 So.2d 97, 102-03 (Fla. 1st DCA 1992); Am. Ins. Ass’n v. Dep’t of Ins., 518 So.2d 1342, 1346 (Fla. 1st DCA 1987) (“The competent substantial evidence test may be met and that evidence still may wholly fail to constitute a preponderance of the evidence.”).

AFFIRMED. Our previous order dated June 18, 2008, granting attorneys’ fees to Appellant is hereby VACATED.

KAHN, J., concurs; BROWNING, C.J., dissents with separate opinion.