author: BOOTH, Judge.

text:
    FLOR-A-CRETE INDUSTRIES, INC. and Maryland Casualty Company, Appellants, v. Benny A. DRAKE, Appellee.
    No. WW-306.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1982.

      Bernard J. Zimmerman and William G. Berzak of Akerman, Senterfitt & Edison, Orlando, for appellants.
    Bill McCabe and Edward H. Hurt of Shepherd, McCabe & Cooley, Orlando, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from a workers’ compensation order finding that the claimant’s industrial injury of March 30, 1979, had merged with a preexisting medical condition, resulting in a permanent partial disability of 25 percent based on a loss of wage-earning capacity. The employer/carrier contends that the Deputy Commissioner erred in awarding disability benefits in excess of the six percent of the body as a whole accepted and paid by the employer/carrier, an award based on (1) a finding that merger had occurred, and (2) a denial of apportionment.

Claimant, Bennie Drake, a 44-year-old high school graduate, had worked for years as a tile setter, a job requiring heavy lifting and considerable physical agility. On March 30, 1979, Drake twisted his lower back while laying floor tile and felt a sharp pain. Subsequently, he was unable to stand for long periods, lift tile materials, or work longer than five hours a day although he had worked normal hours prior to the accident. The Deputy Commissioner accepted the testimony of Dr. DeWitt Stanford, an orthopedic surgeon, in finding that Drake’s preexisting degenerative disc disease and osteoarthritic changes in the lumbar spine had been aggravated and made symptomatic by the accident. The order further found, based on Dr. Stanford’s testimony, that Drake had sustained a 12 percent permanent partial disability due to his preexisting disability and a six percent permanent partial disability related to his industrial injury. The order found that the preexisting disability had merged with the injury to cause a permanent partial disability that was materially and substantially greater than that which would have resulted from the subject accident alone. Due to the restrictions on Drake’s physical activities, the Deputy concluded that he had sustained a permanent partial disability of 25 percent based on a loss of wage-earning capacity.

The employer/carrier, relying on Media General Corporation v. Curry, 382 So.2d 686 (Fla.1980), contends that the Deputy erred in finding merger in the absence of an express finding that the employer had knowledge of claimant’s preexisting disability. In Media General Corporation v. Curry, supra, however, the Supreme Court did not hold that employer knowledge is a prerequisite for merger but rather that lack of employer knowledge was a prerequisite for apportionment.

Clearly, under Curry, proof of employer knowledge of the preexisting condition will bar apportionment pursuant to Florida Statutes, Section 440.02(18) (1978 Supp.). On the other hand, lack of employer knowledge in merger cases will preclude an employer/carrier’s reimbursement from the Special Disability Trust Fund, e.g., Special Disability Trust Fund v. City of Hialeah, 388 So.2d 1372 (Fla. 1st DCA 1980). This does not mean, however, that a claimant is precluded from receiving compensation resulting from the merger of the preexisting condition and the accident because the employer had no knowledge of the preexisting condition. Claimant’s receipt of compensation is not controlled by the availability of Fund reimbursement to the employer. Florida Statutes, Section 440.49(5)(a) (1978 Supp.).

Here, the order found that, based on the medical testimony, Drake’s preexisting degenerative disc disease and the osteoar-thritic changes in his lumbar spine were aggravated and made symptomatic by the industrial accident, resulting in a greater disability than would have existed absent the accident. The Deputy properly ruled that merger had occurred.

The Deputy was also correct in his ruling that the 12 percent permanent partial disability attributable to Drake’s preexisting disease should not be apportioned out of the overall anatomical disability rating of 18 percent. Apportionment is a limited exception to the general maxim that the employer takes the employee as he finds him, Evans v. Florida Industrial Commission, 196 So.2d 748, 752 (Fla.1967), and is applicable only where the employer demonstrates (1) that a portion of the claimant’s disability results from the normal progress of a preexisting condition which would have existed even if the work-connected accident had not occurred, and (2) that the employer was unaware of the preexisting condition. See, Media General Corporation v. Curry, supra; Alpert, Florida Workmen’s Compensation Law, § 18-11 (3d Ed. 1978).

Here, Drake’s preexisting disability did not interfere with his ability to work normal hours prior to the accident. Dr. Stanford’s records indicate that Drake’s industrial accident “aggravated the preexisting condition in a symptomatic way,” preventing him from working longer than five hours a day and causing a permanent loss of wage-earning capacity. Under these circumstances, as in Dade County School Board v. Walker, 379 So.2d 1026 (Fla. 1st DCA 1980), the Deputy properly declined to apportion out that part of claimant’s disability which was attributable to the preexisting condition.

The employer/carrier’s remaining points on appeal are without merit. Accordingly, the order below is AFFIRMED.

JOANOS, J., and PEARSON, TILLMAN (Retired), Associate Judge, concur.

      . Media General Corporation v. Curry, 382 So.2d 686, 687 (Fla.1980), quoting Cypress Gardens Citrus Products, Inc. v. Murchison, 240 So.2d 803, 805 (Fla.1970):

        The key to whether benefits attributable to a disease or condition existing prior to the industrial accident should be deducted or apportioned out of the award to claimant in this case, is whether the employer had knowledge of the preexisting condition or disease prior to the accident.

      . Florida Statutes, Section 440.49(5)(a) (1978 Supp.):
      ... The entitlement of an injured employee or his dependents to compensation under this chapter shall be determined without regard to this subsection, the provisions of which shall be considered only in determining whether an employer or carrier who has paid compensation under this chapter is entitled to reimbursement from the Special Disability Trust Fund.

      . Dade County School Board v. Walker, 379 So.2d 1026, 1027 (Fla. 1st DCA 1980):
      Here, there was competent substantial evidence that appellee’s prior condition was asymptomatic before the accident to the extent that it never affected her work, and there was no evidence that the prior disability manifested itself independently of the disability caused solely by the accident in 1977. Apportionment was thus not proper in this case.
      See also, Dade Federal Savings & Loan Association v. Smith, 403 So.2d 995, 999 (Fla. 1st DCA 1981).


source: Caselaw Access Project

author: WENTWORTH, Judge.

license: Public Domain

text:
    Barbara Ann CATCHES, Appellant, v. Johnnie Samuel CATCHES, Sr., Appellee.
    No. YY-429.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1982.
    C. Miner Harrell of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellant.
    John L. Myrick of Myrick & McKenzie, Pensacola, for appellee.
   WENTWORTH, Judge.

Appellant appeals a final order vacating on authority of Smith v. Morgan, 379 So.2d 1052 (Fla. 1st DCA 1980), and Wilkes v. Revels, 245 So.2d 896 (Fla. 1st DCA 1970), prior orders of contempt entered against appellee. We reverse and remand for reconsideration.

The parties’ marriage was dissolved by final judgment on June 13, 1977. That judgment obligated appellee to pay child support, alimony, and attorney’s fees. Thereafter, and on three separate occasions between February, 1978, and November, 1978, appellant moved for an adjudication of contempt against appellee for appellee’s dereliction in failing to make child support, alimony and/or attorney fee payments. Upon a finding that the appellee’s failure to make such payments was obstinate, willful, and in direct disregard and contempt for the orders of the court, the court entered orders of contempt. For each of the three adjudications of contempt, appellee was sentenced to a period of incarceration. Arrest warrants were issued but were returned unserved because appellee had successfully secreted himself from service.

Child support and alimony arrearages in the amount of $6,250.00 were reduced to final judgment on January 9, 1979. Appellant remarried on May 19,1979. The minor child attained the age of majority on April 27, 1980. Subsequent to those events, appellant filed yet another motion for contempt and/or final judgment. The parties entered into a court sanctioned stipulation as to the amount of child support and alimony monies due and owing since November 22, 1978, until the expiration of appel-lee’s legal obligation to pay same. An order was thereafter entered in favor of appellant’s attorney against appellee for past due attorney’s fees. At that time the court also vacated those portions of the previously entered contempt citations which pertained to the incarceration of appellee on the following rationale:

. . . the parties having agreed that Petitioner’s counsel might make a motion to set aside prior Contempt Orders entered in this cause mandating the Respondent’s incarceration and such a motion having been made by Respondent’s counsel at the time of the hearing held in this case and upon the Court’s finding that the Petitioner did remarry on May 19, 1979, and that the parties’ child did attain his majority on April 27, 1980, and the court further determining that upon the authority of Smith v. Morgan, 379 So.2d 1052 (1st DCA 1980), and Wilkes v. Revels, 245 So.2d 896 (1st DCA 1970), that the prior Orders of Contempt entered in this case ought to be set aside....

The issue involved in this appeal is one of first impression. Appellant contends that under the factual circumstances of this case, the trial court erred in vacating the incarceration portions of the previously entered contempt orders. We do not reach that alleged error because the order entered reflects the court’s apparent conclusion that the referenced cases compelled his action as a matter of law. We find to the contrary and reverse the above stated portion of the October 24, 1980, order and remand the cause to allow the trial judge to exercise his discretion as to whether the prior orders should be set aside.

Both the trial court’s and the appellee’s reliance upon Wilkes v. Revels, 245 So.2d 896 (Fla. 1st DCA 1980), and Smith v. Morgan, 379 So.2d 1052 (Fla. 1st DCA 1980), as mandating the vacation of the prior contempt orders is misplaced. Those cases address the issue of whether the trial court may initially entertain civil contempt proceedings to collect arrearages in support money after the child has attained the age of majority. The non-availability of civil contempt proceedings for the collection of arrearages in alimony subsequent to petitioner’s remarriage has also been determined. Roberts v. Roberts, 385 So.2d 1032 (Fla. 4th DCA 1980). Unlike the situation in Wilkes, Smith, and Roberts, the appellee in the case sub judice was found to be in contempt prior to the appellant’s remarriage and while the child was a minor. The trial court’s power to entertain the motions for adjudication of contempt and the appellant’s right to such relief at that time was not and is not disputed.

The issue now presented concerns the authority of the trial judge to preserve the effect of its past contempt orders for the purpose of protecting the dignity and force of such orders which were proper at the time entered. We find no decisions prohibiting the exercise of such authority in these circumstances. In Seaboard Air Line Ry. Co. v. Tampa Southern Ry. Co., 101 Fla. 468, 134 So. 529 (1931), a temporary injunction against the railroad company was entered and allegedly disobeyed by an act of contempt. A rule to show cause why the company should not be held in civil contempt was issued. At the contempt hearing, the bill of complaint was dismissed on its merits and the contempt rule discharged. The Florida Supreme Court addressed the appellant’s contention that the discharge was error as follows:

Appellant contends that the court discharged such contempt rule on the theory that, because the bill was dismissed on its merits, the defendant should not have been held in contempt because the injunction violated was thereby found to have been improvident. If the court dismissed the rule solely for this reason, it was in error, and we would not hesitate to reverse and remand the cause for that reason, if it so appeared.
But the record does not show upon what theory the rule was discharged. In the absence of any showing, we must presume it was for a proper reason.... The court by discharging the rule has determined that no criminal contempt against its dignity as distinguished from violation of the rights of the parties has been committed, [e.s.]

Vindication of the court’s authority respecting its past orders, lawfully entered upon the facts then existing, therefore appears to be a valid purpose for the exercise of contempt authority.

Accordingly, we reverse the order entered October 24, 1980, insofar as it renders void the effects of prior contempt orders and remand the cause to permit the trial judge to exercise his discretion in this matter.

BOOTH and SHAW, JJ., concur.


author: JOANOS, Judge.

text:
    Carolyn A. WALKER, Appellant/Cross-Appellee, v. NEW FERN RESTORIUM and R. P. Hewitt & Associates of Florida, Inc., Appellees/Cross-Appellants.
    No. ZZ-53.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1982.
    Ivan Matusek, St. Petersburg, for appellant/cross-appellee.
    Robert P. Byelick, St. Petersburg, for ap-pellees/cross-appellants.
   JOANOS, Judge.

This workers’ compensation appeal concerns the procedural and evidentiary requirements of a claim for rehabilitation benefits under the 1979 amendments to § 440.49(1), Florida Statutes. After a hearing on the claim, the deputy denied rehabilitation benefits on the ground that the program in which the claimant was currently enrolled was not that envisioned by § 440.49(1). We reverse.

It is apparent from the record that many of the difficulties which the claimant encountered in her quest for rehabilitation were due in large part to the lack of familiarity by the parties with the Division of Workers’ Compensation [“Division”] statute. Hopefully, this opinion will serve to set forth the procedures and responsibilities under the new act which, if followed, will help prevent recurrence of the delay and confusion that took place in this case.

Claimant sustained a low back sprain on August 16, 1979 while working for the employer as a nurse’s aide. Claimant’s physician opined that, as a result of the injury, claimant should be restricted from lifting over 20 pounds and from prolonged bending or stooping, even after reaching MMI. The evidence is uncontradicted that with these restrictions, work as a nurse’s aide would not be appropriate. Although claimant received an associate of arts degree in 1957 and has done occasional work as a housekeeper, factory worker, and kindergarten instructor, after claimant was advised that she should no longer work as a nurse’s aide, claimant sought rehabilitation to enable her to work at a less strenuous occupation.

The employer paid the proper temporary disability benefits but did not voluntarily provide rehabilitation services for claimant. The Division, however, was not immediately notified by any of the parties that claimant desired rehabilitation. Instead, claimant first asked for help from the Division of Vocational Rehabilitation of the Florida Department of Health and Rehabilitation Services [“DVR”]. DVR received reports from physicians and a psychiatrist and concluded that claimant suffered a disability interfering with her employment. After concluding that claimant was entitled to rehabilitation, a counselor from DVR began working with claimant to determine a viable rehabilitation program.

It appears from the evidence that the Division was first notified of claimant’s interest in rehabilitation by either claimant’s attorney or the DVR counselor. In any event, a Division rehabilitation nurse contacted claimant on January 14, 1980. Claimant was hesitant to talk with the nurse but finally discussed her educational and work background. Because workers’ compensation disability claims were being controverted at the time, the nurse testified that the Division was not supposed to “get involved.” The Division did no further work on the case until March 14,1980, when claimant called the nurse to inform her that the disability portion of the case had been settled and to ask the nurse “what we [the Division] were going to do with her.” The nurse then called the claimant’s DVR counselor to discuss the case. Shortly thereafter, claimant’s attorney contacted the Division to formally refer claimant for rehabilitation services. The nurse made two or three more phone contacts with the claimant but did not devise any rehabilitation plan. Although claimant was not very cooperative on several occasions, the nurse testified that she “closed the case” because she was told that a private rehabilitation agency hired by the employer was supposed to come in. The nurse admitted that under the new law the Division was required to monitor rehabilitation, yet the Division took no further action (either monitoring or preparing reports) once it learned of the possible involvement of a private agency.

As the case developed, no private agency ever became involved. In the meantime, however, the claimant and her DVR counselor continued to work on formulating a rehabilitation program. Because claimant’s experience and interest were in the medical field, the DVR counselor testified that she and claimant decided a four-month training program as a ward clerk would be appropriate. (A ward clerk performs light secretarial/clerical duties in a medical setting.) Claimant attended the training program at night while, on her own initiative, she was enrolled in a basic course of studies at a junior college during the day. As part of her counseling, the DVR counselor also recommended that claimant try the Florida State Employment Service. Claimant did, and got a job as a telephone solicitor. After one day, she found the experience very upsetting. The rehabilitation counselor agreed that the job was not suitable for claimant considering her interest and background.

At the hearing on the claim for rehabilitation benefits, the deputy heard testimony from, among others, the claimant, her treating physician, the DVR counselor and a Division rehabilitation nurse. Although the rehabilitation nurse testified that she “would not disagree with” the DVR’s choice of rehabilitation programs, the deputy found that the ward clerk program was “not that envisioned in section 440.49 . . . . ” In order to have reached this conclusion, the deputy could have determined that the requirements of § 440.49(1) were not met in that, (1) the injury did not preclude claimant from earning pre-accident wages, (2) the ward clerk program was not “necessary and appropriate to restore the employee to suitable gainful employment,” or (3) the program should be rejected due to procedural deficiencies. We find that the deputy’s conclusion cannot be sustained on any of the three grounds.

The first two grounds involve evi-dentiary matters, and, utilizing the findings of fact made by the deputy, the evidence would not support rejection of the program on either of these grounds. The deputy accepted medical testimony regarding claimant’s restrictions and the evidence is undisputed that work as a nurse’s aide is not appropriate in light of these restrictions. In addition, the claimant’s DVR counselor testified without contradiction that the program was designed to correspond with claimant’s experience in the medical field, would be suitable for her restrictions, and would return her to her pre-injury wage earning capacity. The claimant stated that she would like to become a ward clerk, and the Division rehabilitation nurse agreed that this was an appropriate goal.

The employer has argued that claimant’s limited job search and short-lived work as a telephone solicitor should preclude her recovery of rehabilitation benefits. The record reflects, however, that telephone solicitation was the only job located for claimant by the employment service, that the job was one intended for more severely handicapped persons, that there is no evidence as to the rate of pay for the job, and that claimant did attempt the work. To refuse rehabilitation benefits because of the availability of any employment, no matter how ill-suited to the particular individual, would be counter to the statutorily expressed goal of rehabilitation — to return the individual to “suitable gainful employment.” § 440.49(l)(a) (emphasis supplied). The suitability of the employment is determined by considering the claimant’s injury, age, education, and prior occupation. In light of the claimant’s prior experience and education, the telephone solicitation job had nothing to recommend it.

With regard to the procedural difficulties, in subsection (l)(a) of § 440.49, the statute sets forth the correct procedure .under which an injured employee may obtain rehabilitation. Ordinarily, rehabilitation should be provided voluntarily by the employer or carrier when the injured employee is no longer able to earn pre-injury wages. Where, as in this case, the employer/carrier refuses to voluntarily accept responsibility for rehabilitation, the Division of Workers’ Compensation must be notified by either the employer, the carrier, or the claimant. Once notified of the claimant’s application for rehabilitation, the Division takes over the responsibility for evaluating whether or what type of rehabilitation should be received. After giving the parties an opportunity to be heard, the Division should refer the claimant to a qualified physician or facility for the purpose of determining “the practicality of, the need for, and the kind of service, treatment, or training necessary and appropriate to restore the employee to suitable gainful employment.” A report setting forth the findings and recommendations of the evaluating physicians or facilities must be prepared by the Division and sent to the deputy commissioner. On receipt of the report, the deputy must afford the parties with an opportunity for a hearing and may order the employer/carrier to provide the treatment recommended in the report or other necessary rehabilitation. Once rehabilitation has been ordered, training or treatment may be provided in cooperation with other federal, state, or private agencies which work in the area of vocational education or rehabilitation. The ultimate responsibility, however, remains with the Division, which must oversee the effectiveness of each rehabilitation program.

Unfortunately, the parties did not precisely follow the procedures set forth in § 440.49(l)(a) and the Division, in essence, abdicated its statutory responsibility to a fellow state agency, the Department of Vocational Rehabilitation. Despite the improprieties, however, we find that claimant was in substantial compliance with the statute and that the failure of the Division to fulfill its duties did not result in any prejudice to the employer. The employer was given an opportunity to present evidence at the hearing concerning the necessity and appropriateness of claimant’s rehabilitation program. Even though the deputy did not receive a,written report from the Division, he heard testimony from claimant’s treating physician, from a DVR counselor, and from a Division nurse. In addition, the DVR counselor testified that claimant had been examined by physicians and a psychiatrist before DVR’s funding for rehabilitation was approved. The Division’s failure to accept its responsibilities and file its own report should not prevent an award of rehabilitation where the deputy is presented with essentially the same evidence that he would have received in a Division report.

On cross-appeal, the employer/carrier challenges the deputy’s finding that the claimant did not have to receive a permanent impairment rating as a prerequisite to an award of rehabilitation benefits. We agree with the deputy that the new act now focuses on the concept of wage loss rather than disability ratings. See Larson, The Law of Workmen’s Compensation, Volume 2, § 57.15. Unlike the old statute, which provided for rehabilitation only “in cases in which it appears the disability will be permanent,” the new act only requires that an injury “preclude the employee from earning wages equal to wages earned prior to the injury.” In this case, the doctor stated that claimant had reached MMI and was now restricted from certain activities which the evidence showed would result in a wage loss. Since MMI is not achieved while there is still an expectation of recovery, it can be inferred that the limitations on claimant would permanently affect her wage earning capacity. This evidence is sufficient to meet the statutory criteria without the necessity of a permanent impairment rating.

REVERSED and REMANDED for further proceedings consistent with this opinion.

ERVIN and WENTWORTH, JJ., concur.

      . Section 440.49(1)(a) provides:
      (1) Rehabilitation of injured employees.—
      (a) When an employee has suffered an injury covered by this chapter and its appears that the injury will preclude the employee from earning wages equal to wages earned prior to the injury, the employee shall be entitled to prompt rehabilitation services. The employer or carrier, at its own expenses, shall provide such injured employee with appropriate training and education for suitable gainful employment and may cooperate with federal and state agencies for vocational education and with any public or private agency cooperating with such federal and state agencies in the vocational rehabilitation of such injured employees. For purposes of this section only, “suitable gainful employment” means employment or self-employment which is reasonably attainable in light of the individual’s age, education, previous occupation, and injury and which offers an opportunity to restore the individual as soon as practical and as nearly as possible to his average weekly earnings at the time of injury. If such services are not voluntarily offered or accepted, the Division of Workers’ Compensation of the Department of Labor and Employment Security, upon application of the employee, employer, or carrier, after affording the parties an opportunity to be heard, may refer the employee to a qualified physician or facility for the evaluation of the practicality of, the need for, and the kind of service, treatment, or training, necessary and appropriate to restore the employee to suitable gainful employment. On receipt of such report, and after affording the parties an opportunity to be heard, the deputy commissioner may order that the service and treatment recommended in the report, or such other rehabilitation treatment or service deemed necessary, be provided at the expense of the employer or carrier.


author: PER CURIAM.

text:
    Arthur T. COLES, Appellant, v. GAINESVILLE BONDED WAREHOUSE and American Insurance Company, Appellee.
    No. AB-221.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1982.
    Thomas W. Davis of Barton, Cox & Davis, Gainesville, for appellant.
    Toby S. Monaco of Dell, Graham, Willcox, Barber, Henderson, Monaco & Cates, Gainesville, for appellee.
   PER CURIAM.

Among the several issues presented in this worker’s compensation appeal, claimant contends that the deputy commissioner erred in setting his average weekly wage at $250 per week. We agree and reverse.

The facts underlying this appeal are somewhat unusual. When claimant suffered a compensable injury to his back and neck on July 7,1977, he was employed as an independent contractor truck driver for Gainesville Bonded Warehouse, a furniture-moving common carrier. Despite his status, he was covered by worker’s compensation insurance.

As an independent contractor, claimant did not receive a straight salary. Rather, as both he and his employer agree, claimant’s “wages” were determined by deducting his various business expenses from his gross receipts. In the three months prior to his accident, claimant’s trucking operation grossed $13,616.16. During this period he made payments of $755 per month toward the lease-purchase of his tractor-trailer; his fuel and repair bills amounted to $2,130.68; and, his payments to his co-driver amounted to $2,800. Subtracting these deductions from his gross receipts leaves a net of $6,520.48. Claimant also indicated that he spent approximately $20 per day on the road for his personal expenses. Just how many days he spent on the road during this thirteen-week period is not clear from this record; however, he did indicate that the more he drove, the more he earned.

During the course of his deposition testimony claimant indicated that, for the year of 1977, he had an average net per month of approximately $1,000. Apparently relying upon this testimony, the deputy commissioner set the claimant’s average weekly wage at $250 per week.

Where a claimant has been employed regularly for thirteen weeks prior to his compensable accident, his or her average weekly wage for that period shall be computed pursuant to Section 440.14(1)(a), Florida Statutes (1977). Silver Springs, Inc. v. Scardo, 408 So.2d 844 (Fla. 1st DCA 1982); Adams v. Florida Industrial Commission, 110 So.2d 455 (Fla. 1st DCA 1959). This particular method of computation must be used regardless, of whether the claimant is working during a slack or busy period of time. See Waymire v. Florida Industrial Commission, 174 So.2d 404 (Fla.1965). Therefore, the deputy has erroneously relied upon the claimant’s testimony regarding his monthly wages for 1977, especially since the record indicates that he was unable to work at his usual pace after the accident. We therefore must remand this cause for a recomputation of the claimant’s average weekly wage pursuant to Section 440.14(1)(a). In view of the ambiguity in the record regarding the exact nature and amount of the claimant’s business expenses, particularly concerning his personal expenses for the days that he was on the road, the deputy shall hold hearings, receive evidence, and make such-additional findings as may be necessary to establish the claimant’s business expenses and thereby appropriately determine his average weekly wage. In this context, however, we note that claimant’s payments toward the lease-purchase of his truck shall be considered business expenses, and not wages.

We have considered claimant’s argument for additional temporary total disability benefits and find it to be without merit. However, upon remand his attorney’s fees shall be recomputed in light of any increased benefits which he may receive.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

McCORD, ERVIN and SHAW, JJ., concur.


author: THOMPSON, Judge. WENTWORTH, Judge,

text:
    IACOBELLI CONTRACTING, INC. and Federal Insurance Company, Appellants, v. Ray GRIFFIN, Appellee.
    No. AB-445.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1982.

      H. George Kagan of Miller, Hodges & Kagan, Miami, for appellants.
    Jay M. Levy of Silver, Levy & Hershoff and David H. Levine of Ser, DeCardenas, Levine, Busch & Allen, Miami, for appellee.
   THOMPSON, Judge.

The employer/earrier challenge a workers’ compensation order, contending that the Deputy Commissioner (deputy) erred: (1) in finding a causal relationship between claimant’s brain impairment and the accident; (2) in awarding claimant temporary total disability (TTD) benefits; (3) in finding the claimant 15% permanently and partially disabled; and (4) in awarding payment of certain medical bills. For the reasons enunciated below, the deputy’s finding of permanent partial disability (PPD) is not appealable at this time. We agree regarding the medical bills of Dr. Rose. The two remaining points are without merit.

In April 1978 the claimant sustained a compensable injury to various parts of his body, including his head and back. The deputy relied upon the testimony of Dr. Mutter, a psychiatrist, in concluding that claimant sustained organic brain impairment as a result of the accident. Despite the appellants’ contention to the contrary, there is competent substantial evidence to support such a finding. Based upon the opinion of Dr. Gilbert, an orthopedic surgeon, the deputy determined that claimant had sustained a 15% permanent partial disability as a result of the injury to his low back.

The deputy concluded that claimant had not yet reached maximum medical improvement (MMI) regarding the organic brain damage, but that claimant had reached MMI regarding the low back injury. However, the deputy only awarded claimant temporary benefits. This award is supported by competent substantial evidence. Since the deputy did not award claimant any permanent partial compensation benefits, the 15% PPD rating for claimant’s low back injury is an interlocutory ruling. Accordingly, although this rating is assigned as error, this issue is not presently appealable and we cannot consider it at this time.

The issue of medical bills is properly appealable at this time. The claimant was referred by an authorized doctor to Dr. Rose for an eye examination. The deputy ordered that the bill for Dr. Rose’s services should be borne by the employer/earrier. The bills for Dr. Rose’s services were not admitted into evidence. There is no evidence that Dr. Rose timely submitted the reports required by Section 440.13(1), Florida Statutes. This failure was not excused by the deputy, nor even mentioned in the order. Additionally, there was no showing as to why the bills were not so filed. The award of the payment of the medical bills for Dr. Rose’s services is therefore erroneous. See Decks, Inc. of Florida v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980); Holiday Inn v. Egry, 9 FCR 265 (1975), cert. denied, 330 So.2d 18 (Fla.1976). Accordingly, that portion of the order requiring appellants to pay the bill for Dr. Rose’s services is reversed.

In conclusion, we decline to address the issue raised by appellants concerning claimant’s 15% PPD rating since it is not ripe for our review. However, we reverse as to the award of the payment of the medical bills for Dr. Rose’s services. The order is affirmed as to the remaining issues on appeal. Accordingly, the order is affirmed in part and reversed in part.

•MILLS, J., concurs.

WENTWORTH, J., dissents in part and concurs in part.

WENTWORTH, Judge,

dissenting in part and concurring in part.

I agree with the disposition of issues on appeal except I would not reverse with respect to the award for an eye evaluation requested by a treating doctor whose authorization is not appealed. Carrier erroneously argues necessity for proof of causal relation of the condition to be evaluated before requiring a single evaluation, contrary to the usual rule that evaluation may be required to determine causal relation. In any event, we are not referred to any record impeachment of the deputy’s apparent perception of potential relationship between eye complaints and an accident involving a head blow.

Because we are referred to nothing in the record which apprised the deputy and claimant that absence of medical reports was in issue, and the pretrial stipulation referred to § 440.13 only generally in connection with controverted authorizations, I would not reverse the award for omission of a good cause finding. Because the order determines only liability and not the amount due for the appointment in question, and that amount was not put in issue, introduction of the bill in evidence would not appear to be indispensable. I would affirm.


text:
    BILL WATSON’S INTERNATIONAL INN and Insurance Company of North America, Appellants, v. Donald CLAIBORNE, Appellee.
    No. AD-100.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1982.

      Richard G. Davis of Fowler, White, Gil-len, Boggs, Villareal & Banker, P.A., Tampa, for appellants.
    George B. Cappy of Antinori & Thury, P.A., Tampa, for appellee.
   PER CURIAM.

The employer and carrier contest the deputy commissioner’s finding that claimant sustained permanent impairment based on the American Medical Association’s Guide to the Evaluation of Permanent Impairment. Additionally, the employer and carrier contest the assessment of a reasonable attorney’s fee in favor of claimant’s counsel. We find the record supports the deputy’s conclusion that the impairment rating given by Dr. Baker was based on the AMA Guide. Thus, we affirm that portion of the order. However, we agree that the award of attorney’s fee was improper. The employer and carrier admitted the compensability of the accident and paid some benefits. The fact that other benefits were denied does not entitle claimant to an attorney’s fee under § 440.-34(2)(c), Florida Statutes (1979). Four Quarters Habitat, Inc. v. Miller, 405 So.2d 475 (Fla. 1st DCA 1981). The order is therefore reversed insofar as it awards claimant’s attorney a fee. In all other respects, the order is affirmed.

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and WIGGINTON, JJ., concur.


text:
    W. J. S., a child, Appellant, v. STATE of Florida, Appellee.
    No. AD-360.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1982.
    Michael E. Allen, Public Defender, and Davis J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   WENTWORTH, Judge.

Appellant pled nolo contendere to possession of less than 20 grams of marijuana after his motion to suppress the contraband was denied. The state stipulated that the motion was dispositive of the outcome, and the defendant’s right to appeal was preserved.

According to stipulated facts, W. J. S. was standing in a school corridor talking to three other students when a teacher walked by who thought that the boys looked suspicious because they “appeared to look away from her, to look at something else.” The teacher stopped the school security guard Lee who was also in the vicinity, and they took the boys to the principal’s office “where Lee intended to have the Assistant Principal . . . search each boy.” Later, a small purse containing marijuana was taken from the defendant.

In his motion to suppress and in this appeal, defendant argues only that his initial detainment was illegal because there was no reasonable suspicion to believe that he possessed contraband.

We agree that there was no reasonable suspicion at the time of the initial detention in this case, within the meaning of that term as previously applied to school searches. See State v. F. W. E., 360 So.2d 148 (Fla. 1st DCA 1978). However, we do not agree that school officials must have a reasonable suspicion in order to detain a student and take him, as stated in this case, “to be checked out” on the school premises. The stipulated intent to search does not in our opinion render the detention unlawful, and the validity of any subsequent search must be determined on the basis of conditions then existing. No other facts appear of record with respect to the circumstances under which appellant’s purse was “taken from him,” although counsel stated in argument before the trial court that the purse was first seen when appellant dropped it and after he ran, then returned, the principal “asked him to hand it over, which he did.”

The defendant has not argued that the seizure of the marijuana was the result of a search. In fact, defense counsel waived any such argument by repeatedly stating that the motion to suppress was based solely on the allegedly illegal stop; that the resulting seizure was “fruit of the poisonous tree,” and that “I am not alleging that he was illegally searched.” Our conclusion is simply that criminal law standards for a legal stop do not control the mere detention of appellant as a student in this case, and we do not reach the propriety of search because that issue is not presented.

The order denying the motion to suppress and the order referring appellant to the Juvenile Alternative Services Project are affirmed.

McCORD and LARRY G. SMITH, JJ., concur.


text:
    Karen B. HARRIS, Appellant, v. UNITED STATES FIDELITY & GUARANTY CO., Appellee.
    No. AE-393.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1982.

      James R. Green, of Levin, Warfield, Mid-dlebrooks, Mabie & Magie, Milton, for appellant.
    H. Edward Moore, Jr., of Sherrill, Moore & Hill, Pensacola, for appellee.
   WENTWORTH, Judge.

Appellant seeks review of an order granting summary judgment in favor of appellee upon the issue of insurance coverage under the terms of an insurance contract. We reverse the order appealed.

Appellant owns a boat which was insured under a contract providing coverage

. .. against all risks of direct physical loss of or damage to the insured property from any external cause.. ..

The contract expressly excluded

. . . loss or damage caused by or resulting from any . . . mechanical or electrical breakdown or failure unless fire or other accident ensues and then only for the loss or damage by such ensuing fire or accident. .. .

While appellant’s boat was being started the engine exploded. Expert testimony indicates that the explosion was the result of a mechanical failure which allowed an excessive amount of fuel to enter the engine, and that when the starter was activated a spark ignited the excess fuel, thereby causing the explosion. The affidavit of a witness indicates that she “saw flames shoot out of the cockpit of the boat” and an “engine fire” at the time of the explosion.

On appeal from an order granting summary judgment the appellate court must draw every possible inference in favor of the party against whom summary judgment was entered. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977). Applying this rule, we conclude that the evidence in the present case establishes mechanical failure and damage by an ensuing fire or accident. In ruling to the contrary the trial court expressly relied on Fireman’s Fund Insurance Co. v. Cramer, 178 So.2d 581 (Fla.1965); we find that the lower court’s reliance on Cramer is misplaced. That case involved only the melt-down of a hot engine, in contrast to the rapid-combustion explosion in this case. The court in Cramer recognized that coverage would be extended “[i]f heat caused by the mechanical breakdown of the engine had resulted in damage by fire” or other insured peril. 178 So.2d 583. The qualification of the exclusionary clause in the present case clearly contemplates coverage as a loss “from any external cause” when “fire or other accident ensues” from mechanical failure such as the fuel accumulation here in question. This accords with the authorities recognized in the cited opinion which construe similar clauses to exclude loss “where the breakdown is not followed or accompanied by the coming into play of a peril insured against which in turn causes or contributes to a resultant loss,” supra at page 583.

The order appealed is reversed and the cause is remanded for further proceedings consistent with this opinion.

MILLS and THOMPSON, JJ., concur.


text:
    Bobby Lee KINSON, Petitioner, v. Dale CARSON, Sheriff of Duval County, Florida, Respondent. Edwin JOHNSON, Petitioner, v. Dale CARSON, Sheriff of Duval County, Florida, Respondent.
    Nos. AI-377, AI-378.
    District Court of Appeal of Florida, First District.
    Feb. 19, 1982.
    Louis 0. Frost, Jr., Public Defender, and James L. Harrison, Jr., Asst. Public Defender, for petitioners.
    Jim Smith, Atty. Gen., and Harry M. Hipler, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioners’ Motion for Bond was denied by the trial court upon its finding the proof evident or the presumption great that petitioners had committed the offense charged, armed robbery.

Article I, Section 14 .of the Florida Constitution provides that every person charged with a crime shall be entitled to release on reasonable bail unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great. The question presented to this Court is whether the state can rely solely on affidavits to show that the proof of guilt is evident or the presumption is great.

The only evidence relating to the crime produced at petitioners’ bond hearing was an affidavit of the victim and an affidavit of the arresting officer. Petitioners objected to the affidavits on the grounds that they were hearsay and petitioners were denied their right to cross examination. The Court overruled the objection, citing to State v. Arthur, 390 So.2d 717 (Fla.1980), and pointed out that defendants were aware of the identity of the complaining party and the arresting officer and could have compelled their attendance at the hearing.

Petitioners argue that the right of cross examination is fundamental at a bond hearing, see Medina v. Sandstrom, 384 So.2d 927 (Fla. 3 DCA 1980), and that the court erred in admitting into evidence and considering the affidavits since they are inadmissible under the Florida Evidence Code. Petitioners also argue that even if hearsay is admissible at a bond hearing, it should be treated in the same manner as provided in probation revocation hearings where hearsay must be corroborated by competent evidence which is not hearsay.

Although we recognize that earlier decisions have indicated that hearsay evidence is not sufficient to show proof of guilt evident or the presumption great, see, e.g., Medina v. Sandstrom, supra; Primm v. State, 293 So.2d 725 (Fla. 2 DCA 1974); State ex rel. Loper v. Stack, 291 So.2d 207 (Fla. 4 DCA 1974), we think the Supreme Court resolved the issue before us in State v. Arthur, supra. In Arthur, the Supreme Court held, (1) that the trial court had discretion to admit a defendant to bail even though proof of his guilt was evident or the presumption great; and (2) that the state has the burden of establishing that proof of guilt is evident or the presumption great. However, in determining that the state had the burden of proof, the Supreme Court also specified the type of evidence the state could use to carry its burden.

Simply to present the indictment or information is not sufficient. The state’s burden, in order to foreclose bail as a matter of right, is to present some further evidence which, viewed in the light most favorable to the state, would be legally sufficient to sustain a jury verdict of guilty. This is the predominant view among jurisdictions with similar constitutional provisions. Fountaine v. Mullen, 117 R.I. 262, 366 A.2d 1138 (1976). The state can probably carry this burden by presenting the evidence relied upon by the grand jury or the state attorney in charging the crime. This evidence may be presented in the form of transcripts or affidavits.

We find that the state carried its burden through the presentation of the affidavits and that the trial court did not abuse its discretion in denying bail. Therefore, the petition for writ of habeas corpus is

DENIED.

BOOTH, SHIVERS and JOANOS, JJ., concur.


text:
    Jesse Lee PRITCHETT, Petitioner, v. Dale CARSON, Sheriff of Duval County, Florida, Respondent.
    No. AI-500.
    District Court of Appeal of Florida, First District.
    Feb. 19, 1982.
    Louis O. Frost, Jr., Public Defender, and Raymond A. David, Jr., Asst. Public Defender, for petitioner.
    Jim Smith, Atty. Gen., for respondent.
   PER CURIAM.

This petition for writ of habeas corpus is denied on authority of Kinson v. Carson, 409 So.2d 1212 (1982), which resolved the same issue raised by this petition.

SHIVERS, BOOTH and JOANOS, JJ., concur.


text:
    James Pete KING, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1750.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Bennett H. Brummer, Public Defender and Robin H. Greene, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.

      Before HUBBART, C. J., and FERGUSON, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. State v. Hegstrom, 401 So.2d 1343 (Fla.1981).


text:
    John HURLSTON, Appellant, v. LYRES BROTHERS STEAMSHIP COMPANY, INC., Appellee.
    No. 80-1995.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Charles R. Lipcon, Miami, for appellant.
    Shutts & Bowen and Gregory P. Borgog-noni and Richard M. Leslie, Miami, for ap-pellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Since the jury charges actually given fully and fairly covered the subject matter of the plaintiff-appellant’s proposed special instruction, there was no harmful error, as he contends, in its denial. DeBold v. Ocean Reef Club, Inc., 368 So.2d 95 (Fla. 3d DCA 1979); Florida East Coast R. Co. v. Lawler, 151 So.2d 852 (Fla. 3d DCA 1963). The other point raised similarly presents no basis for reversal.

Affirmed.


text:
    ARVIDA CORPORATION, Appellant, v. Eryk LARSON, Appellee.
    No. 81-155.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Steven R. Berger, Miami, for appellant.
    Joe N. Unger, Miami, Pomeroy, Betts & Pomeroy, Fort Lauderdale, for appellee.
    Before HUBBART, C. J., FERGUSON, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Axelrod v. Califano, 357 So.2d 1048, 1952 (Fla. 1st DCA 1978).


text:
    The STATE of Florida, Appellant, v. Fred H. AARON, Appellee.
    No. 81-458.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Jim Smith, Atty. Gen., and Alan T. Lip-son, Asst. Atty. Gen., for appellant.

      Carl L. Masztal, Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and LETTS, GAVIN K., Associate Judge.
   PER CURIAM.

We reverse the trial court’s order dismissing the information. Defendant concedes error in the motion which was sworn to by counsel rather than by defendant. State v. Holder, 400 So.2d 162 (Fla. 3d DCA 1981); State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981). The state, recognizing that the question was not presented to the trial court, argues, in addition, that its traverse precluded dismissal.

For these reasons, we reverse the Order Granting Defendant’s Sworn Motion to Dismiss and remand the cause for further proceedings consistent with this opinion.


text:
    Ronald GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1025.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Following a jury trial, Ronald Green was sentenced to fifteen years in the State Penitentiary on a charge of aggravated battery. The only point on appeal is Green’s complaint that the trial court erred in not sentencing him under the provisions of Section 958.04, Florida Statutes (Supp.1978), the Florida Youthful Offender Act. We find merit in his contention and reverse.

The crime for which Green was found guilty took place on August 17, 1980, at a time when the provisions of the Florida Youthful Offender Act were mandatory if a defendant were otherwise qualified. The state concedes the defendant otherwise qualified. Accordingly, the sentence appealed from is vacated and the cause remanded with directions to resentence pursuant to Chapter 958, Florida Statutes (Supp.1978). State v. Goodson, 403 So.2d 1337 (Fla.1981); Guerrero v. State, 407 So.2d 261 (Fla. 3d DCA 1981); Murvin v. State, 393 So.2d 657 (Fla. 1st DCA 1981); State v. Pizarro, 383 So.2d 762 (Fla. 4th DCA 1980); Allen v. State, 383 So.2d 674 (Fla. 5th DCA 1980).

Sentence is vacated and cause remanded with directions to resentence.


text:
    Jean Marie DION, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1090.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Bennett H. Brummer, Public Defender and Stephen Loffredo, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

We find no merit in the appellant’s claims of error in her convictions for multiple crimes committed when she fired on numerous officers who were attempting to take her into custody for bank robbery. Tibbs v. State, 397 So.2d 1120 (Fla.1981); Adkins v. State, 330 So.2d 809 (Fla. 1st DCA 1976); Yesbick v. State, 408 So.2d 1083 (Fla. 4th DCA, 1982).

The trial court, however, erroneously sentenced the defendant to life imprisonment on each of two counts as to which she was found guilty of attempted second degree murder with a firearm. Under Secs. 777.-04(4)(b) and 782.04(2), Fla.Stat. (1979), attempted second degree murder is a second degree felony, which, because a firearm was involved, is enhanced by Sec. 775.087(l)(b) to a first degree felony. The maximum sentence for such a crime is 30 years. Sec. 775.082(3). Accordingly, the sentence on counts IV and VII shall, upon remand, each be reduced to 30 years imprisonment.

With that exception, the judgment and sentences under review are affirmed.

Affirmed as modified.

      . The defendant need not be present for the amendment. See Taylor v. State, 386 So.2d 825 (Fla. 3d DCA 1980).


text:
    AMERICAN & FAR EASTERN TRADING COMPANY, Appellant, v. DADELAND NATIONAL BANK, Appellee.
    No. 81-1099.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Smith & Mandler and Steven L. Schwarz-berg, Miami Beach, for appellant.
    Holtzman & Krinzman and Richard N. Krinzman, Miami, for appellee.
    Before HUBBART, C.J., and FERGUSON, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962).


text:
    ROSSER ELECTRIC COMPANY, INC., a Florida corporation, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 81-1202.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Fred A. Harrison, Jr., South Miami, for appellant.
    Peter G. Stassun, Coral Gables, for appel-lee.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. § 768.30, Fla.Stat. (1974); Circuit Court of the Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976).


text:
    Spyridon Peter KARATZAS and Lena Karatzas, his wife, Appellants, v. Frank M. WOODS, M. D., Drs. Woods and Banks, P. A., and Florida Physicians’ Insurance Reciprocal, Appellees.
    No. 81-1315.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Finley, Kumble, Wagner, Heine & Under-berg and Phyllis K. Harte, Miami, for appellants.
    Stephens, Lynn, Chernay & Klein, Miami, for appellees.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Sandegren v. State, 397 So.2d 657 (Fla.1981); Hazen v. Williams, 159 Fla. 14, 30 So.2d 532 (1947); Glades General Hospital, et al. v. Louis, et al., (Fla. 4th DCA 1981) (opinion filed 1981); Buck ley Towers Condominium, Inc. v. Buchwald, 340 So.2d 1206 (Fla. 3d DCA 1976).


text:
    Albert B. LUCKEY, Jr., Appellant, v. WILLIS INSURANCE AGENCY, INC., Appellee.
    No. 81-1587.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Ronald L. Giroux, North Miami Beach, for appellant.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The summary judgment in favor of the insurance broker is reversed. At a minimum, there appear to be triable issues with respect to the broker’s alleged failure to either procure or maintain adequate coverage on behalf of the plaintiff. Monogram Products, Inc. v. Berkowitz, 392 So.2d 1353 (Fla.2d DCA 1981). The prior dealings between plaintiff and the broker alone precluded entry of summary judgment. Duncanson v. Service First, Inc., 157 So.2d 696 (Fla.3d DCA 1963).

Reversed and remanded for further proceedings.


text:
    Howard S. SCHWARTZ, Appellant/Petitioner, v. Dorothy A. SCHWARTZ, Appellee/Respondent.
    No. 81-1988, 81-2114.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Ullman & Ullman and Howard F. Ull-man, North Miami Beach, for appellant/petitioner.
    Scherman & Zelonker and Regina F. Zel-onker, Miami, Savitt, Kotzen & France, North Miami Beach, for appellee/respon-dent.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Case No. 81-1988 is affirmed. The petition for certiorari in Case No. 81-2114 is denied.


text:
    The VANGUARD GROUP, INC. and Thomas E. Ratner, Appellants, v. VANGUARD SECURITY, INC., Appellee.
    No. 81-2156.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Carlos & Abbott and Raul Carreras, Jr., Miami, for appellants.
    Pertnoy, Greenberg & Sobel, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We affirm the judgment under review upon a holding that the trial court properly refused to set aside the defendants’ default where the motion seeking such relief consisted of mere representations of counsel unsupported by proof showing any excusable neglect, T.I.E. Communications, Inc. v. Toyota Motors Center, Inc., 391 So.2d 697 (Fla. 3d DCA 1981); Williams v. Stack, 366 So.2d 872 (Fla. 4th DCA 1979); where these naked allegations showed only that the defendants ignored the complaint served upon them, Cricket Club, Inc. v. Basso, 384 So.2d 908 (Fla. 3d DCA 1980); John Crescent, Inc. v. Schwartz, 382 So.2d 383 (Fla. 4th DCA 1980); B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318 (Fla. 5th DCA 1980); and where, even had excusable neglect been shown, the defendants’ conclu-sory allegation that they had “serious and valid defenses” to the complaint was insufficient to show a meritorious defense, Perry v. University Cabs, Inc., 344 So.2d 914 (Fla. 3d DCA 1977); Claffey v. Serafino, 338 So.2d 270 (Fla. 2d DCA 1976).

Affirmed.


text:
    FEDERAL INSURANCE COMPANY, Appellant, v. ITT COMMUNITY DEVELOPMENT CORPORATION, Appellee.
    No. 81-2357.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Welbaum, Zook, Jones & Williams and Dan B. Guernsey, Miami, for appellant.
    Haddad & Josephs and Michael R. Josephs, Miami, for appellee.

      Before HENDRY and BASKIN, JJ., and LETTS, GAVIN K., Associate Judge.
   PER CURIAM.

Affirmed. § 47.122, Fla.Stat. (1979).


text:
    CADILLAC FAIRVIEW, LTD., Appellant, v. Thomas J. DAVIS, Jr., Appellee.
    No. 81-2358.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and Joseph J. Huss, Hollywood, for appellant.
    Lionel Barnet, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Since the super technical objections to the plaintiff’s compliance with Sec. 48.181, Fla. Stat. (1979) are wholly without merit and the amended complaint generally alleged the basis for substituted service in the language of Sec. 48.161, Fla.Stat. (1979), the motion to dismiss for lack of jurisdiction over the person of the defendant, based on the alleged insufficiency of the amended complaint, was properly denied under the newly applicable Fla.R.Civ.P. 1.070(i). The order under review is therefore affirmed without prejudice to a factual determination that Sec. 48.161, Fla.Stat. (1979) was not properly invoked as to the present appellant.

      . This provision, effective January 1, 1981, provides:
      (i) Pleading Basis. When service of process is to be made under statutes authorizing service on non-residents of Florida, it is sufficient to plead the basis for service in the language of the statute without pleading the facts supporting service.


text:
    Crawford Lee GROOMS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-225.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.
    Crawford L. Grooms, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant, Crawford Lee Grooms, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is entitled to no relief, the denial of his motion is affirmed.


author: HERSEY, Judge.

text:
    Kenneth V. PITKIN and Madeline Murphy, Appellants, v. Francis T. RYAN, et al., Appellees.
    No. 81-582.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 1982.
    Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellants.
    Jack M. Coe of Lee, Schulte, Murphy & Coe, P. A., Miami, for appellees.
   HERSEY, Judge.

This is an appeal from a final judgment resulting from the granting of defendant/appellee’s motion for directed verdict at the close of plaintiff/appellants’ presentation of evidence.

We are unable to find support in the record for appellees’ contention and the trial court’s holding that the amount of attorneys’ fees, which was the issue being litigated, had been agreed upon by the parties. That being so, appellees were entitled to a reasonable fee. It has not been determined and we do not consider whether the specific amount involved here would' constitute a reasonable fee.

We reverse and remand with instructions to hold an evidentiary hearing to determine the amount of attorneys’ fees that would be reasonable for the particular services rendered, taking into consideration the following factors:

1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
3. The fee customarily charged in the locality for similar legal services.
4. The amount involved and the results obtained.
5. The time limitations imposed by the client or by the circumstances.
6. The nature and length of the professional relationship with the client.
7. The experience, reputation, and ability of the lawyer or lawyers performing the services.
8. Whether the fee is fixed or contingent. [Not applicable here since a criminal case is involved].

DR 2 — 106(B), Code of Professional Responsibility.

REVERSED AND REMANDED.

DELL, J., concurs.

BERANEK, J., concurs in conclusion only.


text:
    James Edward TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 81-962.
    District Court of Appeal of Florida, Fourth District.
    Feb. 24, 1982.
    Richard L. Jorandby, Public Defender, and Thomas L. Rolle, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The court erred in sentencing appellant to a term of imprisonment at “hard labor,” and that portion requiring the sentence to be served at “hard labor” is stricken. Egan v. State, 364 So.2d 1263 (Fla. 4th DCA 1978). In all other respects, the judgment and sentence are affirmed.

AFFIRMED as modified.

LETTS, C. J., and DOWNEY and BERA-NEK, JJ., concur.


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. Murray C. MALLORY, Appellee.
    No. 79-1957.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and G. P. Waldbart and David T. Weisbrod, Asst. Attys. Gen., Tampa, for appellant.
    John D. Fernandez, and Sondra Golden-farb, Clearwater, for appellee.
   HOBSON, Acting Chief Judge.

We relinquished jurisdiction in this case with directions to the trial court to determine the issue of appellee Mallory’s reasonable expectation of privacy in the area searched. After hearing, the court entered an order holding that Mallory had a reasonable expectation of privacy and thus had legal standing within the contemplation of U. S. v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), and Brady v. State, 394 So.2d 1073 (Fla. 4th DCA 1981). Upon review of the record in this cause, which includes a transcript of the hearing on remand, we reverse and hold that Mallory did not demonstrate the requisite expectation of privacy in order to maintain standing. Thus, the trial court erred in granting Mallory’s motion to suppress evidence.

The following facts are pertinent to our determination:

Murray Mallory resides in Zephyrhills, Florida. In May, 1979, Mallory was arrested in the home of codefendant Ed Moyer in Clearwater, Florida, and subsequently charged with conspiracy to sell cocaine, trafficking in cocaine and possession of marijuana. The arrest was effected subsequent to a plan initiated by the Clearwater Police Department in which a confidential informant set up a cocaine sale at the Moyer home. The informant was equipped with a “body bug” so that the police surveillance team outside the house could hear the conversation among the informant, Mallory and Moyer. After the informant had left the house to summon the “money man,” the police officers decided to move in. Moyer was arrested just outside the front door, and Mallory was apprehended while attempting to dissolve a package of cocaine in the bathtub.

At the hearing on standing, Mallory testified that he and Moyer had been close friends for eight or nine years and that he had been an overnight guest in the house several times. He stated that Moyer left a hidden key which Mallory could use at will to enter the house. Some of Mallory’s personal effects were kept in Moyer’s closet. Mallory further stated that he did not contribute to the rent or utilities, but shared expenses for food during his visits. He also felt free to deny admittance to the house to third parties when he was alone there.

The starting point for any consideration of standing to challenge the search of a dwelling is U. S. v. Salvucci. In that case the Supreme Court overruled the “automatic standing” rule of Jones v. U. S., 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960), and held that a defendant charged with a crime of possession can claim the benefits of the exclusionary rule only if his own Fourth Amendment rights have in fact been violated. This occurs when the person can demonstrate a reasonable expectation of privacy in the area which was searched.

Mallory directs us to the cases of State v. Sarmiento, 397 So.2d 643 (Fla.1981), and Brady v. State in support of his claim to a reasonable expectation of privacy in Moyer’s house. Sarmiento dealt with the issue of whether the warrantless, electronic interception by state agents of a conversation between defendant and an undercover police officer in defendant’s home was an unreasonable interception of defendant’s private communication. Our supreme court held that the defendant enjoyed a reasonable expectation of privacy that no one else was listening to the conversation in his home other than the undercover officer and others present in the home. The case clearly stands for the proposition that a person has an expectation of privacy in his own home, particularly where police have ample opportunity to obtain a warrant.

The Fourth District Court of Appeal recently held in Brady v. State that the defendant had a reasonable expectation of privacy in a friend’s apartment. The defendant had moved out of her own apartment the day before her arrest. The court stated:

Brady was not only an overnight house-guest, she had moved all of her belongings into the apartment and expected to remain since she had no money, and had previously been allowed to stay in the apartment.... Brady had no home elsewhere. Under these circumstances, we believe she had a reasonable expectation of privacy in the premises that she was, in effect, sharing with her friend.

The facts of the instant case are distinguishable from those in the Brady decision. Murray Mallory had a permanent place of residence in Zephyrhills and was no more than a visitor in the Moyer home. Although ownership is not the only criterion in determining the privacy question, it is certainly important to note that Mallory claimed no financial or ownership interest in the residence. Further, there was nothing in the testimony to indicate that Mallory spent other than an occasional night as Moyer’s guest. Mallory stated that he was free to come into the house during the day when Moyer was absent and had done so many times. Again, there is no indication of permanence in this arrangement. Moyer’s house was not Mallory’s place of residence, despite his freedom of ingress and the fact that he kept personal belongings there.

The central theme in all the cases cited to us is the fact that the defendants considered the residence in question their “home.” It matters not whether the “home” is permanent or temporary as long as it was the place where the defendants were living at the time of the search. Mallory was clearly not living at Moyer’s house, even though he felt welcome there at any time.

For the reasons stated above, we reverse the order granting Mallory’s motion to suppress evidence and remand the cause for further consideration consistent with this opinion.

RYDER, J., and CARLTON, CHARLES T., Associate Judge, concur.


text:
    Robert A. KNUCK, Jr., Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. AD-225.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1982.
    Rehearing Denied March 9, 1982.
    Robert A. Knuck, Jr., pro se, for appellant.
    Jim Smith, Atty. Gen., Pamela L. Lutton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant, a prison inmate, seeks review of an administrative order establishing his tentative release date. Appellant contends the Department has incorrectly computed his “good time,” and that the Department’s revised procedure for computing statutory “gain time” constitutes an impermissible ex post facto law. We affirm the order appealed.

At the time appellant committed his offense the Department awarded statutory “gain time” based on the term of incarceration imposed; the Department’s revised procedure awards such “gain time” based on the term actually served, rather than the sentence which was initially imposed. This revised procedure resulted from the Department’s reinterpretation of the existing statute, § 944.27(1), Florida Statutes (1975). We conclude that this revised procedure is a procedural change which is not constrained by the ex post facto clause of the federal or Florida constitution, and which thus may be applied to release computations for inmates under sentence for offenses committed prior to implementation of the revised procedure. See Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Rifai v. U. S. Parole Commission, 586 F.2d 695 (9th Cir. 1978); but see Love v. Fitzharris, 460 F.2d 382 (9th Cir. 1972), vacated as moot, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (1973). Unlike Love, the present case involves a general release statute, rather than release criteria specifically annexed to the inmate’s offense.

The agency record submitted with this appeal supports the Department’s computation of appellant’s “good time.”

Accordingly, the order appealed is affirmed.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.

      . Section 944.29, Florida Statutes (1975).

      . Section 944.27(1), Florida Statutes (1975).

      . While these cases preceded Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), Weaver involved a substantive statutory change and does not alter the rule announced in the cited cases.


text:
    Earl J. DESCANT v. RAPIDES PARISH POLICE JURY.
    No. 81-C-2985.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
    James D. Davis of Davis & Murchison, Alexandria, for plaintiff-applicant.
    Alonzo P. Wilson, of Trimble, Randow, Percy, Smith, Wilson & Foote, Alexandria, for defendant-respondent.
   PER CURIAM.

Plaintiff filed suit against Rapides Parish Police Jury for damages. Answer was filed requesting a trial by jury. Trial judge signed order granting a trial by jury as to all issues. Plaintiff filed motion to strike, requesting the order granting the jury be recalled on the ground that Rapides Parish Police Jury was not entitled to a jury trial under the provisions of La.R.S. 13:5105 which provides:

No suit against the state or a state agency or a political subdivision shall be tried by a jury.

The trial judge ordered that the previous order granting a jury trial be recalled and set aside and that the case be tried before a judge. On application of the Rapides Parish Police Jury, the Court of Appeal, Third Circuit, finding that relator was entitled to a trial by jury, reversed the order recalling the original order granting a jury trial. Plaintiff applied to this court for certiorari to review the correctness of the ruling of the court of appeal.

We find that the language of La.R.S. 13:5105 is clear: “No suit against the state or a state agency or a political subdivision shall be tried by a jury.” This is a suit against such an entity. Hence, the statute prohibits a trial by jury. The court of appeal erred in ruling otherwise.

Accordingly, plaintiff’s application for a writ is granted. The ruling of the court of appeal is reversed. The order of the trial judge recalling the order granting a jury trial and ordering the case to be tried before a judge is reinstated. Case is remanded to the district court for further proceedings in accordance with law.

REVERSED AND REMANDED.

LEMMON, J., concurs.


author: LEMMON, J.,

text:
    STATE of Louisiana v. Angelo TROSCLAIR, III.
    No. 82-K-0209.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In Re: Angelo Trosclair, III, applying for Writs of Certiorari, Mandamus, Prohibition and Stay Order, Orleans Parish, No. 282-580.

Granted. It is ordered that the defense lawyer not be placed on the stand. On the showing made, there is no necessity to place the defense lawyer on the stand. On the showing made by the defendant in support of his motion in arrest of judgment, as set forth in this application, the motion in arrest of judgment is without merit.

BLANCHE, J., would deny the writ.

LEMMON, J.,

concurs. The defendant bears the burden of proving his waiver of a jury trial was not knowingly made, and proof of lack of a colloquy on the record does not meet this burden. The State, therefore, need not question defendant’s trial attorney at this time, and it is not necessary for us now to pass on the propriety of calling that attorney to the stand.


author: HALL, Judge.

text:
    Warren A. GISS, Plaintiff-Appellee, v. Herbert L. SUMRALL, Administrator of the Division of Employment Security of the Department of Labor, State of Louisiana, Defendant-Appellee, and Arkansas Louisiana Gas Company, Defendant-Appellant.
    No. 14737.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 25, 1981.

      Blanchard, Walker, O’Quin & Roberts, by John T. Cox, Jr., Shreveport, for defendant-appellant, Arkansas Louisiana Gas Co.
    Sockrider & Bolin by James E. Bolin, Jr., Shreveport, for plaintiff-appellee, Warren A. Giss.
    James A. McGraw, Baton Rouge, for defendant-appellee, Herbert L. Sumrall, Administrator of the Division of Employment Sec. of the Dept, of Labor, State of Louisiana.
    Before PRICE, HALL and MARVIN, JJ.
   HALL, Judge.

This appeal by the employer, Arkansas Louisiana Gas Company, is from a decision of the district court reversing the decision of the Board of Review of the Office of Employment Security denying the plaintiff employee unemployment compensation benefits. The question presented on appeal is whether the district court erred in finding that the determination of the Board of Review that plaintiff was discharged for misconduct connected with his employment was based on incompetent and illegal evidence which was insufficient to sustain the Board’s determination.

Plaintiff left his employment with Arkansas Louisiana Gas Company after being employed there for almost 10 years. At a meeting with his supervisor, Billy Kidd, and the Vice President of Employee Relations, Wilton Stone, plaintiff was advised that he was being terminated, primarily because of using the company computer for personal business; plaintiff was given the option of resigning, which he did. Plaintiff filed a claim for unemployment compensation with the Office of Employment Security, to which Arkla responded that plaintiff had voluntarily resigned. The agency determined that plaintiff resigned from his employment in lieu of discharge but that the action for which plaintiff was to be discharged was not misconduct connected with his employment. The employer appealed from the agency determination that plaintiff was entitled to unemployment compensation benefits and a hearing was conducted before an appeals referee. The appeals referee reversed the agency determination on a finding that the facts presented at the hearing showed recurrent failures on plaintiff’s part to fulfill his obligations as an employee after receiving warnings from his superiors. The Board of Review affirmed the decision of the appeals referee and plaintiff filed suit in district court seeking reversal of the Board of Review’s decision. The Administrator of the Office of Employment Security answered the employee’s petition for judicial review by joining in his demand that the Board’s determination be reversed as erroneous. The employer answered plaintiff’s suit asking that the decision of the Board of Review be affirmed. We find that the trial court was correct in concluding that the findings of the appeals referee and the Board of Review were based on insufficient evidence and, therefore, affirm.

At the hearing before the appeals referee, only two persons testified: the claimant and Mr. Stone. After some preliminary questioning by the appeals referee, Mr. Stone read a prepared statement into the record and offered into evidence various exhibits, including office memoranda prepared by Mr. Kidd and others. Plaintiff timely objected to certain portions of the statement and the exhibits on the grounds that hearsay evidence was being introduced. The thrust of Stone’s testimony was that plaintiff violated a direct order of his supervisor, Kidd, not to use the company computer for personal business and that plaintiff admitted having done so. Stone did not profess to have personal knowledge of the facts relating to the order and use of the computer and was relating what Kidd had told him. Mr. Kidd did not testify at the hearing. Despite the obvious hearsay nature of most of the employer’s testimony and exhibits, they were allowed into evidence by the referee. Plaintiff denied that he was given a direct order or that he disobeyed any order which Mr. Kidd had given him. The alleged personal use of the computer was minimal and plaintiff explained that some of this use of the computer had value to the company and to his own training in use of the computer.

The decision of the appeals referee contains the following findings of fact:'

“Claimant worked for the above named employer about ten years until about 3— 4-80. He was a salaried employee in the planning department where financial, engineering, and other long range planning was carried' out for the company. His work involved using the company computer daily from 20 to 30 percent of his time.
“In addition to claimant’s position at Ark-La-Gas, he operated his own real estate business for several years on a part-time basis. From time to time he would use the company computer during office hours in connection with his real estate business. In early 1979 his immediate supervisor discussed with him some data sets claimant had put in the computer that he was using for his personal business. Some of this was done by claimant as practice in order to make him more proficient in programming and operating the computer. However, he never had permission to use the computer for his personal business. In addition, he spent office time in various aspects of his real estate business, including telephone calls with attorneys and other clients. His supervisor verbally counselled him about this practice but it did continue. In about February, 1980 the auditing department informed claimant’s supervisor that they had found evidence claimant was again using the computer for his personal business. It was then decided to terminate claimant. A meeting was conducted in the vice-president’s of employer relations office on 3-4-80. Claimant’s supervisor read him a prepared statement concerning his discharge, (see employer exhibit 1). Claimant tried to explain his actions but his explanations were not accepted and he was allowed to resign in lieu of termination. Only once before had another employee been discovered using the computer for personal business and he was also terminated.”

It was the opinion of the appeals referee that the facts of the case showed “recurring failures on claimant’s part to fulfill his obligations as an employee after warnings”; therefore, his resulting discharge was for misconduct connected with his employment and claimant was not entitled to receive unemployment benefits.

The law applicable to this case was recently summarized in Banks v. Administrator of Dept. of Employment, 393 So.2d 696 (La.1981):

“LSA-R.S. 23:1601 provides that:
‘An individual shall be disqualified for benefits:
sf: * sfc * * *
‘(2) If the administrator finds that he has been discharged for misconduct connected with his employment . . . ’.
“The employer bears the burden of proving that a discharge resulted from disqualifying misconduct. The issue is primarily a factual one to be determined by the administrator and the board of review. LSA-R.S. 23:1634. However, there must be legal and competent evidence to support the factual findings on which the administrative determination turns. Evans v. State Department of Employment Security, 292 So.2d 265 (La. App. 2 Cir. 1974); Caldwell v. Gerace, 378 So.2d 1045 (La.App. 2 Cir. 1979). Moreover, if the determination made does not meet ‘a threshold test of reasonableness’, it is erroneous as a matter of law. 35 La.Law Rev. 349 at 369. See Simmons v. Gerace, 377 So.2d 407 (La.App. 2 Cir. 1979); Brown v. Lockwood, 380 So.2d 685 (La.App. 4 Cir. 1980); Turner v. Brown, 134 So.2d 384 (La.App. 3 Cir. 1961); Boudreaux v. Louisiana Board of Review, 374 So.2d 1182 (La., 1979).
“The word ‘misconduct’ in LSA-R.S. 23:1601 is used to connote intentional wrongdoing. King v. Brown, [115 So.2d 405] supra; Turner v. Brown, supra. Thus, an employee can be unsatisfactory to the employer without being guilty of disqualifying misconduct....” (Footnote omitted)

An employee’s failure to follow a direct order of his supervisor can constitute misconduct under LSA-R.S. 23:1601(2) which would disqualify a claimant from receiving unemployment compensation benefits. See Bridges v. Western Electric Co., 304 So.2d 850 (La.App. 2d Cir. 1974) and Heard v. Doyal, 259 So.2d 412 (La.App. 2d Cir. 1972).

In this case, the crucial issue is whether plaintiff disobeyed a direct order of his supervisor. Mr. Stone’s testimony that Mr. Kidd had informed him that he had advised plaintiff not to use the company computer for his personal business is clearly hearsay and cannot be considered by this court in its determination of whether there was sufficient evidence to support the findings of fact of the appeals referee. The interoffice memoranda filed into evidence by the employer prepared by Kidd and others who did not appear at the hearing are also hearsay.

Mr. Stone did testify, however, that at plaintiff’s termination interview plaintiff acknowledged that Mr. Kidd ordered him to remove two of his personal data sets from the computer and not to use the computer for his personal business. An admission by a party is competent evidence and was correctly admitted at the hearing before the appeals referee. However, plaintiff explained at the hearing that although he was advised to remove certain personal data sets from the company computer he was never ordered not to use the computer for his personal business. Plaintiff testified that he did remove the data sets from the computer.

Mr. Stone’s testimony regarding the admission was not the best evidence of plaintiff’s alleged misconduct. The testimony of plaintiff’s supervisor would have been the best evidence of the direct order and the alleged violation of it. Had plaintiff’s supervisor testified, he would have been subject to cross-examination by plaintiff.

Considering the indirect, secondary nature of the evidence against the claimant and claimant’s denial that he was given a direct order or that he ever admitted to having received such an order, the evidence does not meet the threshold test of reasonableness and is insufficient to establish the disqualifying misconduct alleged by the employer. Absent proof of a deliberate disregard or violation of a direct order not to use the computer for personal business, claimant’s conduct, although considered unsatisfactory by his employer, in no way approaches the kind of willful disregard of his employer’s interest that would disqualify him from receipt of unemployment compensation benefits.

After reviewing the entire record of these proceedings, disregarding the incompetent hearsay evidence which was introduced over the strenuous objection of the plaintiff, we find that the trial court was correct in concluding that the facts as found by the appeals referee and relied on by the Board of Review were based on insufficient evidence. The employer failed to establish by a preponderance of legal and competent evidence that plaintiff was discharged for misconduct connected with his employment.

For these reasons, the judgment of the trial court is affirmed and this matter is remanded to the Board of Review of the Office of Employment Security of the State of Louisiana, for entry of an order directing the payment to plaintiff of the unemployment compensation benefits to which he is entitled under the Louisiana Employment Security Law. The employer, Arkansas Louisiana Gas Company, is cast for all costs.

Affirmed.