author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Perry KOSTIDAKIS and Helen F. Kostidakis, his wife, Appellants, v. Craig STRACENER and Inez Stracener, his wife, Appellees.
    No. 81-1035.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.
    Dale K. Bohner, Holly Hill, for appellants.
    David D. Fuller, Jr. of Kinsey, Vincent, Pyle, Williams & Tumbleson, Daytona Beach, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a judgment granting a permanent injunction and damages to appellees for interference with an easement. We affirm the judgment as to the injunction but reduce the damage award.

The question we consider here is whether an award of $2,000 for blockage of an easement is proper where no specific pecuniary loss was shown. If there is interference with an easement, the law will presume some damage and no special or actual pecuniary loss need be shown. Where no physical or financial injury has been inflicted, the easement owner may recover only nominal damages. 25 Am.Jur.2d Easements and Licenses § 122. See Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1977).

In the case before us, there was no pecuniary loss or other damage, only a showing of inconvenience. In the absence of proof, an award of anything more than nominal damages was improper. Therefore, the award of damages is reduced to $1.00.

AFFIRMED in part and AMENDED in part.

COBB and SHARP, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Terry L. HUGHEY, Appellant, v. STATE of Florida, Appellee.
    No. 81-1106.
    District Court of Appeal of Florida, Fifth District.
    March 31, 1982.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a judgment and sentence for burglary. We affirm.

Subsequent to his arrest, appellant was given his Miranda warnings. He then requested an attorney. About two hours later and before an attorney arrived, appellant gave statements to the police admitting his guilt. Prior to trial, the court granted appellant’s motion to suppress these statements.

When appellant testified at trial, he denied his involvement in the burglary. On cross-examination, he also denied having made the statements to the police. The state presented a rebuttal witness to impeach appellant. The objection of defense counsel to the testimony of the witness was overruled.

The single question presented is where a defendant requests counsel after being informed of his Miranda rights, may statements made by him prior to seeing counsel be used to impeach him when he takes the stand and denies having made any statements?

In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the United States Supreme Court held that a statement that was inadmissible against a defendant in the prosecution’s case in chief because of a failure of the police to give the defendant Miranda warnings could be used for impeachment to attack the credibility of the defendant’s trial testimony. The Florida Supreme Court in Nowlin v. State, 346 So.2d 1020 (Fla.1977), followed the rule as stated in Harris. The Nowlin court specifically added the proviso that the incriminating statements must be voluntary before they could be used to impeach credibility.

In a recent United States Supreme Court decision, Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), rehearing denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981), the Court stated that where a defendant was given Miranda warnings and then requested an attorney, a statement made by the defendant before an attorney was present must be suppressed unless shown that the defendant initiated the communication with the police.

Appellant argues that the statements given police could not be used for impeachment under Harris because Edwards limits Harris to situations where no Miranda warnings are given at all and not to fact patterns like the instant case, where warnings are given and counsel is requested. Appellant requests that Harris and Nowlin be examined in light of the Edwards decision to see if the court requires a stricter standard for the use of impeaching material when a defendant asserts his right to counsel.

Appellee responds that Edwards has no effect on Harris or Nowlin in that Edwards only requires suppression of the statement and does not address the question whether the statement can be subsequently used to impeach and therefore the Harris position is proper.

A similar fact situation to this one before us existed in Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). After arrest, Hass was given Miranda warnings. He requested that he be allowed to telephone an attorney but was told he could not do so until arrival at the police station. He then provided inculpatory information which was later suppressed. The Supreme Court pointed out that the only possible distinction between Harris and the case before it was the fact that the Miranda warnings given Hass were proper, whereas those given Harris were defective. The Court then stated:

The deterrence of the exclusionary rule, of course, lies in the necessity to give the warnings. That these warnings, in a given case, may prove to be incomplete, and therefore defective, as in Harris, does not mean they have not served as a deterrent to the officer who is not then aware of their defect; and to the officer who is aware of their defect the full deterrence remains. The effect of inadmissibility in the Harris case and in this case is the same; inadmissibility would pervert the constitutional right into a right to falsify free from the embarrassment of impeachment evidence from the defendant’s own mouth.

95 S.Ct. at 1221.

The Court then went on to hold that, having denied making the statements, evidence of those statements may be used to impeach that denial.

In the case before us, there is no evidence to indicate that the statements were coerced or otherwise involuntary. When the defendant denied making the statements he opened the door to his impeachment.

AFFIRMED.

COBB and SHARP, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: HOBSON, Acting Chief Judge.

text:
    Virgil JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-1045.
    District Court of Appeal of Florida, Second District.
    March 31, 1982.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Following a nonjury trial, appellant was convicted of arson and sentenced to five years imprisonment. We find that there was no valid waiver of appellant’s right to a jury trial and reverse.

Appellant was not present at the hearing on his attorney’s oral motion for continuance. Defense counsel informed the court that he had advised appellant to waive his right to jury trial because of adverse influence his record might have upon the jury. Counsel stated that appellant had agreed to waive his right to jury trial. The court accepted the representations of defense counsel and, with the State’s agreement, set the case for nonjury trial. Appellant never executed a written waiver of his right to jury trial; the court did not inquire of him personally as to whether he understood his right to jury trial and whether he had voluntarily agreed to waive that right.

A defendant’s knowing, voluntary, and intelligent waiver of jury trial must be shown affirmatively from the record below. Viggiani v. State, 390 So.2d 147 (Fla.3d DCA 1980); Powers v. State, 370 So.2d 854 (Fla.3d DCA 1979); cert. denied, 379 So.2d 909 (Fla.1979); Tosta v. State, 352 So.2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So.2d 885 (Fla.1978).

A stipulation filed by counsel attests to the fact that appellant did not initiate the request for nonjury trial and was not present when his counsel attempted to waive that right. There is no evidence to indicate any valid waiver. Inasmuch as this issue is dispositive of the instant case, we do not address appellant’s remaining points raised on appeal.

REVERSED.

SCHEB, C. J., and DANAHY, J., concur.


author: SCHEB, Chief Judge.

text:
    George ROBBINS and Aaron Robbins, Appellants, v. May ROBBINS and Jere Pinco, Appellees.
    No. 81-1590.
    District Court of Appeal of Florida, Second District.
    March 31, 1982.
    James P. Bennett, Law Offices of James P. Bennett, St. Petersburg, for appellants.
    Richard A. Zacur of Mensh, Zacur & Graham, P. A., St. Petersburg, for appellees.
   SCHEB, Chief Judge.

Appellants challenge the trial court’s entry of summary judgment in favor of appel-lees, contending that the deed by which their father conveyed the homestead property to himself and his second wife as tenants by the entirety in 1966 is void because the second wife did not join in the convey-_ anee. Therefore, they argue that they have a remainder interest in their father’s homestead. We agree and reverse.

Appellants, the children of the late Hy-man and Jeanette Robbins, filed suit claiming a remainder interest in homestead real property. The thrust of their allegations was that in 1959 their deceased parents acquired title to the real property involved here as an estate by the entirety. After their mother died their father remarried, and on May 25,1966, conveyed the property to himself and his new wife, May Robbins, as an estate by the entirety. However, May Robbins did not join in the conveyance. On May 11, 1968, Hyman Robbins died, and on December 10, 1975, appellee May Robbins, his unremarried widow, conveyed the property to her son, appellee Jere Pinco, reserving for herself a life estate.

In Robbins v. Robbins, 360 So.2d 10 (Fla. 2d DCA 1978), we held that these facts stated a cause of action. There, we noted that the decisions construing the “homestead” provision under the Florida Constitution of 1885, in effect in 1966 when Hyman Robbins attempted to create an estate by the entirety with his wife, May Robbins, required both spouses to join in the execution of a deed conveying homestead property. We also observed that a gratuitous conveyance of homestead property from husband to wife under the former constitution was void, at least where there were children. Accordingly, we reversed the trial court’s dismissal of the appellants’ complaint, and remanded the case to the trial court for further proceedings.

Upon return to the trial court, both appellants and appellees moved for summary judgment as the material facts were uncontested. The trial court granted appellees’ motion concluding that the supreme court’s recent opinion in Jameson v. Jameson, 387 So.2d 351 (Fla.1980), controlled and mandated a ruling in their favor. There, Louis Jameson conveyed homestead property in his sole name to his wife Martha Jameson and himself as tenants by the entirety in 1974. Martha Jameson did not join in the conveyance. After Louis Jameson died, his son sought to have the conveyance declared void on the ground that the constitutional requirement of joinder was not fulfilled. The trial court voided the deed. The Third District Court of Appeal affirmed holding that Article X, section 4(c) of the Florida Constitution “clearly requires joinder of the wife where there is an attempt to alienate homestead property.” Jameson v. Jameson, 369 So.2d 436, 437 (Fla. 3d DC A 1979). In reversing, the supreme court in Jameson v. Jameson, 387 So.2d 351 (Fla.1980), emphasized that the Florida Constitution, as revised in 1972, modified section 4(c) to read, “The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse.” (Emphasis supplied.)

In Jameson the supreme court observed that this critical language adopted by the 1968 constitutional revision had not previously been construed. After detailing the history of the revision of the constitution in respect to homestead property, the court concluded that section 4(c) no longer requires joinder by the wife to transfer homestead property from sole title in the husband to the Husband and wife as an estate by the entirety.

In ruling on the motion for summary judgment, the trial court apparently applied the rationale of the supreme court’s opinion in Jameson to the instant case concluding that Jameson implicitly overruled our previous opinion in this case. In doing so we think the court erred. As Judge Danahy pointed out in our previous opinion, Article X, section 4(c) of the 1885 Constitution governs the instant case, and that section was construed to prohibit the conveyance from Hyman Robbins to himself and his second wife. Thus, the supreme court’s opinion which construed the 1968 revision of the constitution as amended in 1972 does not control this case.

In addition, we reject appellees argument that section 689.11, Florida Statutes (1981) modifies the constitutional requirements of the 1885 Constitution. This statute could not validate this deed which was void under the 1885 Constitution. Mr. Robbins’ death preceded the revision which would have upheld this transfer.

Therefore, we vacate the summary judgment granted appellees, and direct the trial court to enter summary judgment in favor of appellants.

OTT and RYDER, JJ., concur.


text:
    Levi HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1638.
    District Court of Appeal of Florida, Second District.
    March 31, 1982.

      Jerry Hill, Public Defender, and Linda Alperstein, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

After a jury trial, Levi Hicks was found guilty of disorderly conduct, resisting arrest, and aggravated battery, a lesser included offense of attempted murder. Although the jury found Hicks guilty of aggravated battery, the court adjudged him guilty of attempted murder. The law is well established that the judgment of the trial court must conform to the verdict of the jury. Thrift v. State, 295 So.2d 690 (Fla. 1st DCA 1974); State v. Puckett, 345 So.2d 829 (Fla. 1st DCA 1977). Once the jury found Hicks guilty of aggravated battery, the trial court was compelled to adjudicate him guilty and sentence him for that offense.

The cause is therefore reversed and remanded with directions to the trial court to vacate and set aside the judgment and sentence, and to enter a judgment in accordance with the jury verdict, sentence to be as provided by law.

REVERSED and REMANDED.

DANAHY and CAMPBELL, JJ., concur.


author: PER CURIAM.

text:
    JACK ECKERD CORPORATION and Travelers Insurance Co., Appellants, v. Clara B. COKER, Appellee.
    No. AB-326.
    District Court of Appeal of Florida, First District.
    April 1, 1982.

      H. George Kagan, of Miller, Hodges & Kagan, Miami, for appellants.
    David H. Levine and Joseph C. Segor, Miami, for appellee.
   PER CURIAM.

This workers’ compensation appeal involves the employer/carrier’s (E/C) appeal of an order awarding temporary total disability (TTD) benefits until the date of maximum medical improvement (MMI) and excusing the failure of the hospital and physician to file bills and medical reports. The claimant has also filed a cross-appeal challenging the constitutionality of § 440.-15(3)(b)3.d, Florida Statutes (1980 Supp.). For the reasons set forth below, we reverse on the issues presented by appellant and reject the cross-appeal for lack of standing.

Claimant was injured in a compensable accident on October 5, 1979, when she sustained a sudden pain upon rising from a crouched position. The pain continued, and claimant received permission to leave work early because of it. Later that night she was taken to the emergency room by ambulance and remained in the hospital for the next 18 days. Over the ensuing months, claimant was treated by several doctors. Neither the doctors nor the hospital ever filed medical reports as required by § 440.-13, Florida Statutes (1979). On February 24,1980, she was released for work, but was not rehired by the employer. Thereafter, she actively sought other employment, eventually finding a similar position.

A claim was filed March 20, 1980, to which the employer/carrier did not respond until June 12, 1980, when it filed a notice to controvert. In the order dated February 11, 1981, the deputy commissioner found that claimant was TTD from the date of the accident to July 2, 1980, which whs also the date of MMI. He also found that the reason no authorized medical treatment had been provided was that the claim was controverted and he therefore ordered payment of the medical bills. The failure to file the reports was excused because “there has been no showing of any prejudice to the employer/carrier as a result of failure to file same, the claim was controverted in its entirety, and the employer/carrier has likewise failed in its responsibility to file a notice to controvert within specific time limitations.” Finally, the deputy commissioner found that claimant was in excess of age 65 on the date of the accident and was therefore not entitled to wage loss benefits because of § 440.15(3)(b)3.d. But the deputy commissioner also held that he would have awarded those benefits to her if the statute had not precluded entitlement because of age.

We do not reach the merits of claimant’s cross-appeal challenging the constitutionality of § 440.15(3)(b)3.d because claimant has not shown that she is adversely affected by the statute by proof that she meets all other requirements for that class of benefits. Acme Moving & Storage v. Mason, 167 So.2d 555 (Fla.1964). In this case, the deputy commissioner stated that he would have awarded wage loss benefits but for the challenged statute. However, we find no proof of the necessary statutory conditions for award of such benefits to appellant. Under § 440.15(3)(b)l and 2, Florida Statutes (1979), a claimant must suffer a specified decrease in earnings as a result of compensable injury before any wage loss benefits are due, because eligibility for such benefits is limited to “95 percent of the difference between 85 percent of the employee’s [former] average monthly wage and the salary . . . the employee is able to earn” after MMI. Here, the evidence does not indicate that claimant’s current earnings are diminished in the amount required as a threshold for wage loss benefits. In addition claimant’s testimony indicates that her current employment activities are comparable in every way to the work she was doing prior to her accident. Since claimant relies only on invalidity of the statutory age bar to prove her claim for wage loss after MMI under § 440.15(3)(b)3.d, we conclude she did not show that but for the bar she had a right to benefits, and we decline to determine the constitutionality issue for lack of standing on her part to present the point.

The employer/carrier’s appeal challenges the order to pay hospital and doctor bills because the deputy’s stated grounds, supra, for excusing authorization and reporting requirements do not constitute good cause. We find merit in this contention and conclude that the order reflects an abuse of discretion, based on consideration of the sequence of events shown by the record. Claimant concedes by brief here that “[i]t is apparent that the claimant, the hospital, nor the physicians initially realized that the injury might be compensable.” Although hospitalization on an emergency basis may excuse initial authorization, we find no reasonable grounds here for excusing an apparent five-month delay in reporting treatment and claiming compensability. The argument is persuasive that this delay, and the absence of any reports which would permit monitoring or even provide notice of the treatment, prejudiced carrier’s opportunity to evaluate the claim which it subsequently controverted. We therefore reverse this portion of the award.

The employer/carrier also appeals the award of temporary total disability compensation for the four month period after February 24, 1980, until the July 2, 1980 MMI date. The order finds that on February 24, 1980:

. . . Dr. Strehan gave her a note to return to work without mention of restriction. She then returned to the employer again and gave the new note from Dr. Strehan to her employer, however, was not rehired and was advised she had been taken off the payroll. At that time she began a good-faith work search to obtain employment similar to that which she had been doing for the employer herein prior to the accident which was part-time work. She had difficulty obtaining the work due to the fact that she was looking for part-time work, her age, physical limitations, back ground and experience, etc. She eventually obtained employment on August 1, 1980. It is my determination that but for the occurrence of the accident herein and its sequela the claimant would have continued with her employment with the employer herein and would not have suffered the loss of her wages from the time of the accident. . . .

Claimant’s brief here expressly concedes that the record does not support the finding of temporary total disability after her physician’s release, and does not argue the sufficiency of other evidence to support total disability compensation after this time. We therefore consider, on the issue of temporary total compensation, only claimant’s argument that the record indicates a later release date, and because we conclude that the order, above quoted, correctly found an unrestricted release four months after October 24, 1979, total disability benefits should not have been awarded after that date. The order in this respect is therefore reversed.

In support of the additional contention by claimant that temporary partial disability after release should be determined on remand, we are referred to evidence that her physician’s medical restrictions limited her periods of standing and walking, and that she was fired when she returned to her former employer. The order above quoted also finds that the failure of her good faith work search was due to her physical limitations in conjunction with other factors; that at the time temporary benefits terminated she had a 15% physical impairment; and “but for ... the accident and its seque-la the claimant would have continued with . .. the employer herein and would not have suffered the loss of her wages... . ” Although carrier correctly notes that the claim in this case was for temporary total and not partial disability compensation, we find no reason in the circumstances of this case to believe that fact would preclude, on due process or other grounds, the consideration of whether temporary partial compensation may be supported by the proofs submitted. Farm Stores v. Dryda, 384 So.2d 269 (Fla.1st DCA 1980). We accordingly remand for that determination on the existing record.

The order is reversed in part, affirmed in part, and remanded for further proceedings consistent herewith.

MILLS, WENTWORTH and THOMPSON, JJ., concur.

      . Since the date of accident was October 5, 1979, the controlling statute is the 1979 law. 79-312, § 8 Laws of Fla. Arguably, at least, there is a notable difference between the 1979 statute and the 1980 amendment. However, we need not consider this point for the reasons set forth in this opinion.


author:
THOMPSON, Judge.
      MILLS, Judge,

text:
    THATCHER GLASS MANUFACTURING CO. and Continental Ins. Co., Appellants, v. Shirley M. BUYNA, Appellee.
    No. AB-421.
    District Court of Appeal of Florida, First District.
    April 1, 1982.
    John S. Smith of Marlow, Shofi, Ortmayer, Smith, Connell & Valerius, Tampa, for appellants.
    H. Guy Smith, Lakeland, for appellee.
   THOMPSON, Judge.

The employer/earrier (E/C) challenge a workers’ compensation order, contending that the Deputy Commissioner (deputy) erred by awarding compensation to claimant’s husband for nursing services. We agree and reverse.

In 1968 claimant sustained a compensable injury. A claim was subsequently filed to compensate claimant’s husband for various services he performed for claimant. The deputy concluded that claimant’s husband performed nursing care type services which she needed. Accordingly, the deputy awarded the husband compensation for three hours per day at the minimum wage prevailing at the time the services were performed.

There is no competent substantial evidence that claimant’s disability, i.e. the nature of her compensable injury and process of recovery, required the services in question as a matter of medical need under the standards of § 440.13, Fla.Stat., for the ten-year period in question and continuing. Accordingly, it was error for the deputy to award compensation for nursing services to claimant’s husband.

REVERSED.

WENTWORTH, J., concurs.

MILLS, J., dissents.

MILLS, Judge,

dissenting:

I dissent. I would affirm. The deputy’s award of compensation to the claimant’s husband for nursing services provided his wife is supported by competent substantial medical and lay testimony.

Because of an industrially related injury, claimant is and will be permanently and totally disabled and unable to wash her hair, put her hair in rollers, shave her legs and underarms, take a shower, wash parts of her body, dress herself, and rub out knots and spasms that frequently occur in her injured shoulder and arm. Also, when claimant’s left arm is manipulated or exerted, she has forearm jerking, clawing of the hand, and hopping of the hand, which require restraining by the husband. Her husband performs these tasks during his time off from his work.

There is no doubt that the services rendered claimant by her husband are of a kind not ordinarily performed by a husband for his wife and that the services are palliative nursing services. I cannot believe that any husband or wife would consider these services to be merely housekeeping services ordinarily performed by a husband.


author: WENTWORTH, Judge.

text:
    Carolyn DAILEY, Appellant, v. GENERAL ACCOUNTING MACHINES, Appellee.
    No. AC-375.
    District Court of Appeal of Florida, First District.
    April 1, 1982.
    Stewart F. Suskin, Abrams & Suskin, North Miami Beach, for appellant.
    George F. Taylor, Jr., Miami, for appellee.
   WENTWORTH, Judge.

Claimant appeals a workers’ compensation order which awarded various benefits and denied “all other claims.” Construing this language as a denial of such claims as were mature and ripe for adjudication and placed in issue, we affirm the order appealed.

Claimant argues, among other contentions, that the deputy erred by adjudicating the issue of permanent disability. The deputy found that claimant has sustained no permanent disability, and effectively adju-dieated the issue by awarding some benefits and denying “all other claims.”

A deputy should not, of course, rule on issues which are beyond the agreed scope of a hearing. See Pompano Roofing Co. v. O’Neal, 410 So.2d 971 (Fla. 1st DCA). In this case permanent disability was not expressly placed in issue by either the formal claim or the pre-trial stipulation, but the record does not show any express reservation of the issue or other fact bearing on estoppel against its submission. We conclude that in these circumstances a claimant may not rely on the pre-trial restrictions after initiating questioning of various physicians on this point. Further, the order found that claimant attained maximum medical improvement nearly a year prior to the date of the hearing. The issue of permanent disability was in this case clearly mature for adjudication, and the deputy did not err by ruling on the evidence put before him. Cf., Action Pool Builders v. Grant, IRC Order 2-3743 (March 23, 1979); see generally, Hunt v. International Minerals and Chemical Corp., 410 So.2d 640 (Fla. 1st DCA 1982). Rights of the parties to isolate matters for hearing (and to preserve other issues for self-executing procedures) plainly must be exercised with respect for orderly disposition of matured claims at the time of entry of a final order.

The order appealed is hereby affirmed.

MILLS and THOMPSON, JJ., concur.


author: MILLS, Judge.

text:
    GILBARCO, INC. and Insurance Company of North America, Appellants, v. Mary LeROUX, Appellee.
    No. AD-2.
    District Court of Appeal of Florida, First District.
    April 1, 1982.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, P. A., Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, P. A., and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   MILLS, Judge.

The employer/carrier appeal an order finding that the claimant had not reached maximum medical improvement (MMI) and finding her temporarily totally disabled (TTD) through the date of the hearing and continuing. We reverse.

The claimant was injured in a compensa-ble accident when she slipped and fell. Immediately after the fall she was treated, and on 19 July 1976 she was released to work without impairment. She still complained of pain, which worsened. Psychological treatment began. The original orthopedic surgeon, Tom Stanford, discharged her on 9 March 1977 with a minimal impairment. A second orthopedic surgeon, De-Witt Stanford, found no impairment in April 1977. A neurosurgeon recommended an injection and arthrogram of the knee. The first Stanford resumed treatment, but in April 1978, refused to treat the claimant as a compensation case. She went to a third orthopedic surgeon, Dr. Uricchio, who ultimately operated on the claimant’s knee in September 1978. He released her for light work in December and in March 1979 found a 5% impairment. The complaints of pain continued. Uricchio still felt that MMI had been reached in March 1979. In October 1980, Dr. Eckbert, a psychiatrist, also found no reason for the claimant not to work.

The carrier paid TTD benefits from 26 June 1976 through 4 May 1977 and from September 1978 through 13 March 1979 and 5% permanent partial disability (PPD) benefits from 14 March 1979.

None of the medical evidence suggests that the claimant is not fully recovered and is not capable of resuming work. Nonetheless, based on the claimant’s continued pain, to which she testified, and which the deputy commissioner observed, the deputy commissioner found that the claimant had not reached MMI. This finding was error. While certain medical conditions are observable by laymen and questions on those conditions answerable by a deputy commissioner based on his observations, Decks Inc. v. Wright, 389 So.2d 1074 (Fla. 1st DCA 1980), we are of the opinion that the instant case does not involve such conditions.

Accordingly, the order is reversed because it is not based on competent substantial evidence, Ardmore Farms Inc. v. Squires, 395 So.2d 268 (Fla. 1st DCA 1981); Scotty’s Inc. v. Jones, 393 So.2d 657 (Fla. 1st DCA 1981). The case is remanded to the deputy commissioner with instructions to make a determination of the claimant’s entitlement to PPD due to lost-wage earning capacity, if any, based on the current record.

WENTWORTH and THOMPSON, JJ., concur.


text:
    CITY OF SANFORD, Appellant, v. Harold BRADLEY, Appellee.
    No. AD-34.
    District Court of Appeal of Florida, First District.
    April 1, 1982.

      Jesse F. Sparks, Orlando, for appellant.
    Scott H. Michaud, Meyers, Mooney, Adler & Hammond, Orlando, for appellee.
   WENTWORTH, Judge.

Employer/carrier appeals a workers’ compensation order which we affirm. While a post-hearing deposition suggests that claimant has now reached maximum medical improvement from his industrial injury, the order appealed awards temporary disability benefits to “the date of the last hearing” and thereafter “for as long as [claimant] remains” so disabled. The record on appeal contains competent substantial evidence that claimant was temporarily disabled through the date of the last hearing, and we regard the order’s additional language as surplusage intended to require that employer/carrier comply with the provisions of § 440.15(2)(a), Florida Statutes. As so construed, we find the contested language to be without error. We also note that this issue could more appropriately have been submitted for the deputy’s reconsideration. See Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

In the order appealed the deputy expressly reserved jurisdiction to determine the date of maximum medical improvement and the extent of any permanent disability. While these issues were not mature and ripe for adjudication as of the date of the last hearing, and the deputy therefore did not err by declining to rule thereon, the proper course is for the deputy to dispose of these issues only upon their submission when mature. Accordingly, the order appealed is hereby amended so as to delete the reservation of jurisdiction as to these issues.

The order appealed is affirmed as amended.

MILLS and THOMPSON, JJ., concur.


text:
    Rhonda JACKSON, Appellant, v. DADE COUNTY SCHOOL BOARD and Gallagher Bassett Insurance Service, Appellees.
    No. AD-495.
    District Court of Appeal of Florida, First District.
    April 1, 1982.
    Jay M. Levy of Silver, Levy & Hershoff, Miami, for appellant.
    Steven Kronenberg of Adams, Kelley & Kronenberg, Miami, for appellees.
   PER CURIAM.

The claimant raises five issues on appeal, only one of which has merit. In denying the claim for continuing medical care, the deputy commissioner expressly relied on the report of a Dr. Antonio Prats. This report is not in the record, nor does the record show that it was admitted into evidence. The case must be remanded so that the deputy commissioner may determine whether Prats’ report should have been included and, if not, whether the medical evidence in the existing record supports the order.

The denial of the claim for continued treatment is reversed and the cause remanded; all other portions of the order are affirmed.

MILLS, LARRY G. SMITH and SHAW, JJ., concur.


text:
    Lois WILLIAMS, Appellant, v. Oscar WILLIAMS, Appellee.
    No. AE-17.
    District Court of Appeal of Florida, First District.
    April 1, 1982.
    O’Gwen L. King, Reeves, King & Ritchie, Pensacola, for appellant.
    George G. Phillips, Pensacola, for appel-lee.
   PER CURIAM.

We disagree with appellant’s contention that the award of a special equity in the “Snowball” house to the appellee-husband is a nullity and must be completely disregarded because paragraph eight of the final judgment, which provides for the special equity, contains no provision concerning the amount of the special equity, nor the manner in which it is to be determined. However, we agree that the award of a special equity which does not clearly specify the amount thereof, nor provide for its determination, is incomplete and that it must be clarified in order to inform the parties of their respective interests, and to facilitate its enforcement. We therefore reverse and remand for further proceedings, including, in the discretion of the trial judge, the presentation of additional evidence, and the entry of an amended or supplemental final judgment specifying the extent of appel-lee’s special equity.

REVERSED and REMANDED.

MILLS, LARRY G. SMITH and SHAW, JJ., concur.


author: PER CURIAM. ERVIN, Judge,

text:
    Richard Douglas DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. AE-440.
    District Court of Appeal of Florida, First District.
    April 1, 1982.

      Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant plead nolo contendere to a charge of possession of controlled substances, reserving his right to appeal the propriety of the trial court’s denial of his motion to suppress. We affirm.

On February 5, 1981, the Clay County Sheriff’s Office received information that two men had been seen transferring a large amount of marijuana from an automobile into a mobile home. Because the informant said the marijuana “would only be there a little while,” the police made no effort to obtain a search warrant. Instead, they proceeded to the identified residence, arriving sometime in the early afternoon. In the front yard, the police found an automobile which matched the informant’s description of the vehicle from which the marijuana had been unloaded. On the floor in the back of the vehicle were some leaves which appeared to be marijuana. Because there had been “trouble” at the trailer before, some officers went behind the trailer while others approached the front door. Those who had gone to the rear of the trailer looked through a set of sliding glass doors and saw appellant and one Hawkins (who is not a party to this appeal) sleeping in a room which had been added onto the trailer. The room was the living area and one of the men was asleep on the couch, the other on the floor. Officers also observed a small bag of marijuana on one of the chairs in the room. A knock on the glass door woke Mr. Daniels who then woke Mr. Hawkins. When Mr. Hawkins opened the glass door, the officers could smell marijuana.

Mr. Hawkins initially refused the officers permission to search the trailer, but subsequently relented. Upon searching the trailer, the police discovered, in addition to the small baggie of marijuana in the living room, two large bags of marijuana in the back bedroom.

At the hearing on appellant’s motion to suppress, appellant’s evidence showed.that the trailer was owned by Mr. Hawkins’ sister. She had given the keys to her mother along with the authority to rent the trailer to others. On the morning of the day of the search, Mr. Hawkins and the appellant went to the mother’s house. They said they had been drinking and needed a place to rest and clean up. She gave them the keys to the trailer and some linens. There they slept until the police arrived that afternoon. Hawkins had been to the trailer only once before, when his sister was living there. Appellant had never been to the trailer. Mrs. Hawkins testified she did not know Daniels very well and would not have given him the key to the trailer had he been alone.

While the trailer was furnished and clothing was found in the closet, none of these effects belonged to either appellant or Hawkins. Appellant had an overnight bag of clothing in the front room. Mr. Hawkins also had some clothing in that room. It does not appear that either man had any possessions in any other part of the trailer.

Appellant testified that he anticipated spending only that night in the trailer, he had not been to any part of the trailer except the front room, and, when the police requested permission to search, he told them they would have to ask Hawkins because he was “just visiting.”

The prosecutor argued only the standing issue. The defense argued that the consent was invalid and that appellant had standing. The trial judge ruled that appellant had standing as to the front room, but lacked standing as to the back room. The trial judge granted the motion to suppress as to the baggie of marijuana found in the front room, but denied the motion as to the large bags of marijuana found in the back bedroom. Implicit in the partial grant of the motion to suppress is the determination that Hawkins’ consent to search was not voluntary.

Initially, we would observe that the questions of standing and the legality of the search have merged. The proper inquiry is whether it may be said that the Fourth Amendment rights of the individual challenging the search have been violated. To answer this question a court must look to the “totality of the circumstances” in order to determine (1) if the defendant had a subjective expectation of privacy in the area searched, and (2) if that expectation is one which society is prepared to recognize as reasonable.

Here, the trial judge answered these questions in the affirmative as to the search in the front room of the trailer, but in the negative as to the search of the back room. The trial court was correct.

Mr. Daniels was a guest. He intended to leave the next morning. On this basis, the case is distinguishable from Brady v. State. There, the appellant had left her own apartment and, with all her belongings, moved into the apartment of a friend. She had previously stayed in the friend’s apartment and, since she had no money, expected to remain there for some time. Though the search occurred only a few hours after she moved in, the Fourth District Court of Appeals held that she had a reasonable expectation of privacy in the premises which she was, in effect, sharing with her friend.

Similarly, this case is distinguishable from this court’s decision in Shade v. State. There, the evidence showed appellant, Shade, was a temporary resident in his family’s home. Evidence was seized from his brother’s bedroom, and Shade sought to challenge the voluntariness of his mother’s consent. This court said:

To limit the scope of inquiry to appellant’s expectation of privacy in the wallet or the bedroom would ignore the fact that the officers had to intrude into the home itself in order to get to the bedroom and wallet. If appellant had a reasonable expectation that the government officials would not enter the home absent the consent of another household member, then the trial court should not have foreclosed his challenge to the seizure of the wallet.

At 853-854.

Shade stands for the proposition that an individual’s expectation of privacy may be greater when he is a guest in the home of his family than when he is a guest in the home of those to whom he is not related.

The evidence in the instant case established that Mr. Daniels was, in effect, the guest of a guest. At the time of the search, he had been in the trailer only a few hours. He testified he had been in no part of the trailer except the front room, that he did not even “know” that the trailer had a back bedroom, although he assumed that it did. When police sought his permission to search the trailer, he deferred to Mr. Hawkins because he was “just visiting.” Under the circumstances, we conclude that the search of the back bedroom and the seizure of the marijuana therein did not violate Mr. Daniels’ Fourth Amendment rights.

Accordingly, the order appealed from is AFFIRMED.

SHAW and THOMPSON, JJ., concur.

ERVIN, J., dissents with opinion.

ERVIN, Judge,

dissenting.

I must respectfully disagree with the majority’s rule of bifurcated standing, and its curious proposition “that an individual’s expectation of privacy may be greater when he is a guest in the home of his family, than when he is a guest in the home of those to whom he is not related.” Ante at 1036-1037. This is certainly not the test for standing as recognized by the United States Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Although Rakas disapproved of certain language used by the Court in its prior opinion in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), extending standing to any person legitimately on the premises, it did not disapprove the ultimate holding in Jones as applied to the facts there involved, showing — similar to those here — that Jones was an overnight guest in an apartment leased by a friend, who had given him a key to the apartment; that Jones had apparently been in the house only a few hours when the search occurred, and that he had maintained his home elsewhere. 439 U.S. at 141, 99 S.Ct. at 429, 58 L.Ed.2d at 399.

The only substantial distinction between Jones and the instant case is that at the time of the search, Jones was the sole occupant of the premises because the lessee was then away for a period of several days. This difference does not, however, require the conclusion that Daniels had no standing to object to the search of the rear bedroom, because, under the circumstances, Daniels would be considered by Rakas to have a sufficient possessory interest in all areas within the trailer. Rakas concluded its analysis of Jones with the observations: “Jones . . . stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place.” 439 U.S. at 142, 99 S.Ct. at 429, 58 L.Ed.2d at 400. Although Rakas eschewed “arcane distinctions developed in property and tort law between guests, licensees, invitees, . ..,” 439 U.S. at 144, 99 S.Ct. at 431, 58 L.Ed.2d at 401, it nevertheless observed that “the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment.” 439 U.S. 143, 99 S.Ct. at 430, 58 L.Ed.2d at 401, n. 12. One means by which one may assert a legitimate expectation of privacy in the premises searched is to demonstrate that he lawfully possesses or controls property. Id. And a concomitant right to lawful possession is the right to exclude others. Id. The Court continued that an overnight house guest, such as Jones, lawfully on the premises with the consent of the owner, possesses a sufficient possessory interest to exclude all others, with the exception of the owner. 439 U.S. at 149, 99 S.Ct. at 433, 58 L.Ed.2d at 405. On the other hand, a casual visitor present on the premises for a very short period of time preceding a search, or a passenger in an automobile, lacks a substantial interest in other areas of the place searched to object. 439 U.S. at 142, 149, 99 S.Ct. at 429, 433, 58 L.Ed.2d at 400, 405.

In the case at bar, Daniels and his friend, Hawkins, were lawfully in possession of the trailer at the time of the search since the person who had control of it had given a key to Hawkins with the understanding that both Hawkins and Daniels would remain in it overnight. The fact that Daniels did not occupy the specific area searched is immaterial to the question whether he can be considered, under the circumstances, to be in lawful possession of the entire premises searched. He and his friend clearly had the right to occupy any portion of the trailer since there were no restrictions made by the person who relinquished control of it upon either’s use of it. Moreover, the back bedroom was not at the time of the search occupied by anyone else. Under the circumstances, Daniels must be considered to have possessed a legitimate expectation of privacy in all areas searched by reason of his right to exclude all persons except Hawkins. Cf. Brady v. State, 394 So.2d 1073 (Fla. 4th DCA 1981).

Accordingly, I would reverse the order denying the motion to suppress the contents taken from the back bedroom of the mobile home.

      . Appellant’s public defender initially filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Upon examining the record, as we are obliged to do in such-cases, and determining that there did exist an arguable issue of law, we requested supplemental briefs.

        . Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

      . Rawlings v. Kentucky.

      . Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

      . 394 So.2d 1073 (Fla. 4th DCA 1981).

      . 400 So.2d 850 (Fla. 1st DCA 1981).

      . There was a dispute as to whether he was living in the home or just staying there temporarily.

      . In this regard, see, Silva v. State, 344 So.2d 559 (Fla.1977).

      . See also, Inchaustegui v. State, 392 So.2d 319 (Fla. 4th DCA 1980).


text:
    Hilbert WALKER, Petitioner, v. Louie L. WAINWRIGHT, Secretary of the Department of Corrections, Respondent.
    No. AF-173.
    District Court of Appeal of Florida, First District.
    April 1, 1982.
    Hilbert Walker, pro se.
    Jim Smith, Atty. Gen. and Gregory C. Smith, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner seeks a writ of habeas corpus for a belated appeal from his rape conviction in 1973. For the reasons outlined below, we decline to grant petitioner a belated appeal. Accordingly, the petition is denied.

Subsequent to his conviction,' petitioner allegedly requested his court-appointed attorney to file an appeal. It was not filed. Petitioner apparently took no further action regarding an appeal until he filed the instant petition, eight years after his conviction. The state indicates that petitioner’s delay in seeking his belated appeal has precluded it from being able to adequately respond to the allegations in the petition. Petitioner relies on Bashlor v. Wainwright, 374 So.2d 546 (Fla. 1st DCA 1979), where a convict waited 28 years to petition for a belated appeal and this Court held that the doctrine of laches did not apply to preclude an appeal. However, in that case, the defendant had been convicted prior to the United States Supreme Court’s decision recognizing the right to appointed counsel on appeal in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and the Florida Supreme Court’s decision that Douglas should be applied retroactively in Baggett v. Wainwright, 229 So.2d 239 (Fla. 1970). Further, the state made no assertion that any prejudice it would suffer due to loss of witnesses, counsel, judges, record and other evidence, had increased since the time this state recognized Bashior’s claim as actionable. In Mr. Walker’s case, the state asserts prejudice to it due to Mr. Walker’s delay.

In this case, the doctrine of laches applies to preclude this belated appeal. Broxson v. Wainwright, 271 So.2d 478 (Fla. 1st DCA 1973); and Remp v. State, 248 So.2d 677 (Fla. 1st DCA 1970). Petitioner has attached pages from his trial transcript showing he had been advised of his right to appeal and to have counsel appointed for this purpose, should he be indigent. Some diligence on the part of a defendant to pursue this right, upon being informed of it, is required. Babson v. Wainwright, 376 So.2d 1187 (Fla. 5th DCA 1979); and Cooper v. State, 258 So.2d 464 (Fla. 1st DCA 1972). The prejudice to the state caused by petitioner’s unnecessary delay in raising his claim far outweighs any alleged denial of a constitutional right in this case.

Accordingly, the petition for writ of ha-beas corpus for a belated appeal is denied.

SHAW, WENTWORTH and THOMPSON, JJ., concur.

      . See Baggett v. Wainwright, 229 So.2d 239 (Fla.1970); and Hoilingshead v. Wainwright, 194 So.2d 577 (Fla.1967).

      . Petitioner has attached a copy of a letter, allegedly written to his attorney in 1973, shortly after his conviction, requesting a copy of the notice of appeal filed in his case. The state responded that petitioner’s attorney has no recollection of whether petitioner asked him to file an appeal.


text:
    The STATE of Florida, Appellant, v. Donald Eugene COLQUITT, Appellee.
    No. 81-2045.
    District Court of Appeal of Florida, Third District.
    April 6, 1982.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Whitman, Wolfe & Gross and John W. Salmon, Miami, for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The trial court erred, and defendant candidly confesses error, in dismissing an information at bond hearing for lack of probable cause. Except for appropriately ruling on a sworn motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4), which was not filed in this cause, a trial court may not dismiss a duly returned information on a finding that the evidence is insufficient to support it. State v. Brooks, 388 So.2d 1291 (Fla. 3d DCA 1980).

Reversed and remanded for further proceedings.


text:
    Constantino CASAL and Omar Garcia, Appellants, v. The STATE of Florida, Appellee.
    No. 78-2129.
    District Court of Appeal of Florida, Third District.
    April 7, 1982.
    Arthur F. McCormick, South Miami, for appellants.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on August 14, 1979 (375 So.2d 1077, Fla.App.), reversing the final judgments and sentence of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, the Supreme Court of Florida, 410 So.2d 152 (Fla.), by its opinion and judgment dated January 14, 1982, now lodged in this court, disapproved in part this court’s judgment;

NOW, THEREFORE, it is ordered that the mandate of this court heretofore issued in this cause on November 27,1979, is withdrawn, the opinion of this court filed August 14, 1979, is amended in accordance with the said opinion and judgment of the Supreme Court of Florida. The judgments and sentence of the trial court are reversed and the cause remanded with directions to discharge the defendants. Costs allowed shall be taxed in the Circuit Court. Fla.R. App.P. 9.400(a).


text:
    Margaret A. RIVERA and Roger E. Kopplow, as Guardians of the Person and Property of Hilder F. Kopplow, Incompetent, et al., Appellants, v. DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 81-1682.
    District Court of Appeal of Florida, Third District.
    April 7, 1982.
    Lee Weissenborn, Miami, for appellants.
    Robert A. Ginsburg, County Atty. and Steven J. Keating, Asst. County Atty., for appellee.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. No motions for rehearing shall be entertained.


text:
    Phillip Thomas HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1619.
    District Court of Appeal of Florida, Fourth District.
    April 14, 1982.

      Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   OPINION ON REHEARING

PER CURIAM.

Our opinion of December 23, 1981, is hereby withdrawn. In our earlier opinion we reversed appellant’s convictions for attempted second degree murder, burglary and possession of burglary tools because of the failure of the trial court to give instructions on penalties for the crimes charged pursuant to Tascano v. State, 393 So.2d 540 (Fla.1980). Appellant was charged with and requested penalty instructions on attempted first degree murder, burglary and possession of burglary tools. We now reverse the convictions for burglary and possession of burglary tools and remand for a new trial on the authority of Tascano, supra. However, we affirm the conviction for attempted second degree murder and hold that any failure to instruct on penalties for attempted first degree murder was harmless. See Kemper v. State, 404 So.2d 1184 (Fla. 4th DCA 1981). We also certify the following question to the Florida Supreme Court as one of great public importance:

May the harmless error rule be applied where the only penalty instruction requested is for the main offense charged and the defendant is subsequently convicted of a lesser included offense?

ANSTEAD and HURLEY, JJ., and MINER, CHARLES E., Jr., Associate Judge, concur.


author:
CALOGERO, Justice.
     LEMMON, Justice,

text:
    James Paul SCHOUEST, Jr. v. J. RAY McDERMOTT & CO., INC.
    No. 81-C-1573.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Concurring Opinion April 2, 1982.
    As Amended April 16, 1982.

      James L. Donovan, of Donovan & Lawler, Metairie, for plaintiff-applicant.
    Claude 0. Yasser of Jones, Walker, Wae-chter, Pointevent, Carrere & Denegre, Me-tairie, for defendant-respondent.
   CALOGERO, Justice.

There are factual and legal issues presented in this worker compensation case.

(1) Factually, has plaintiff proven that he suffers from silicosis, an occupational disease, by virtue of his employment with J. Ray McDermott over the past fifteen years?

The trial court’s conclusion did not negate the presence of silicosis; rather it was simply that plaintiff was not disabled. The Court of Appeal found that plaintiff does suffer from silicosis.

(2) Is plaintiff disabled?

The trial court found that he was not The Court of Appeal found, at least inferentially, that he was. They found that he is no longer able to work as a sandblaster or in any but a silica free environment, and that his “impairment. . . is slight” and it “will not interfere with moderate to heavy work” in a silica free environment. Schouest v. J. Ray McDermott & Co., Inc. unpublished (La.App. 4th Cir. 1981), No. 11581.

(3) Legally, is plaintiff entitled under the law to a compensation judgment in any respect?

The trial court determined that he was not. The Court of Appeal found also that he was not entitled to any judgment because, in addition to the fact that his impairment was slight and would not interfere with the performance of moderate to heavy work, he was offered “a job (or any of three jobs in five locations) at his former wages by defendant in an atmosphere testified to be relatively free of dust.” They so found while nonetheless acknowledging that the progressive nature of plaintiff’s silicosis assures ultimate permanent disability. They dismissed his claim with prejudice while concluding that plaintiff is at liberty to bring a new lawsuit at such time as the “regrettably inescapable disability that silicosis promises” arrives.

We find that plaintiff indeed does suffer from job related silicosis, that he is partially disabled, and that he is entitled under law to an appropriate judgment in his favor.

James Paul Schouest, Sr., a painter/sandblaster with only a fourth grade education, was employed by J. Ray McDer-mott, Co., Inc. intermittently from 1964 to 1971 and continuously for the seven years from 1971 to January 1979. In November, 1978, a company scheduled routine chest x-ray revealed changes compatible with silicosis. Schouest was so notified on January 9, 1979. Two weeks later, Schouest consulted his family physician, Dr. Alden H. Baehr, because of respiratory problems evidenced by bronchitis and the flu. Dr. Baehr referred him to the now deceased Dr. Morton S. Ziskind, an expert in the field of pulmonary disease at Tulane University School of Medicine. On February 6, 1979, Dr. Ziskind reported to Schouest (with carbon copies to Dr. Samuel Logan, the doctor administering the November 1978 x-ray, and to Mr. James Carroll of J. Ray McDermott Co., Inc.):

The diagnosis of silicosis has been established and Mr. Schouest should be removed from exposure to respirable free silica. His respiratory impairment at present is slight and will not interfere with the performance of moderate to heavy work.

J. Ray McDermott Co., Inc. paid workers’ compensation benefits of $3825.55 and medical benefits of $624.76 for the period beginning January 24,1979 through August 6, 1979. A letter dated August 16, 1979 from George B. Lester, compensation representative for J. Ray McDermott, Co., Inc., to plaintiff reads as follows:

We are in receipt of correspondence from Dr. Eugene Rosenberg and Dr. Alden Baehr stating that you may return to work in a restricted dust environment.
It is arranged for you to return as an equipment repairman. This position is offered to you in as much as you cannot return to your former occupation.
Based on these recommendations from the Doctor’s [sic], you are being returned to work status as of August 6, 1979. Your weekly compensation benefits have ceased as of that date. Failure for you to return to work, may result in personnel action. Questions may be addressed to this department.

Plaintiff did not return to work at J. Ray McDermott. His compensation benefits were thus terminated. This suit followed on August 27, 1979.

At trial when plaintiff rested his case, the court, without written reasons, granted defendant’s motion to dismiss.

While affirming the district court’s dismissal, the Fourth Circuit Court of Appeal found that job related silicosis had been established, a finding, with which, as we have already stated, we agree. While the burden in workers’ compensation cases is upon the plaintiff (as it is in other civil litigation) to establish a controverted fact by a preponderance of the evidence, there is no error in finding that James Schouest carried his burden in this instance. Proof by a preponderance of evidence is sufficient when “the evidence taken as a whole, shows that the fact ... sought to be proved is more probable than not.” Hall v. Great Atlantic and Pacific Tea Company, Inc. 297 So.2d 527 (La.App. 4th Cir. 1974), quoting Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971), writ denied 300 So.2d 842 (La.1974).

The medical report of Dr. Morton Ziskind and the testimony of Dr. Alden Baehr, the plaintiff’s physician, expressly confirmed the presence of silicosis. Such diagnosis and the opinions of the treating physician and specialist to whom referred by the treating physician are entitled to more weight than that of those doctors examining the plaintiff for consultation for litigation purposes only. Williams v. Liberty Mutual Ins. Co., 327 So.2d 462 (La.App. 3d Cir. 1976); Babin v. Highlands Ins. Co., 290 So.2d 720 (La.App. 1st Cir. 1974); Gates v. Ashy Construction Co., Inc., 171 So.2d 742 (La.App. 3d Cir.), writ denied 247 La. 678, 173 So.2d 542 (1965); Harris v. Argonaut Ins. Co., 142 So.2d 501 (La.App. 2d Cir. 1962).

It is nonetheless noteworthy that the doctors called by the defense did not categorically rule out silicosis but only advanced other possible prognoses. Furthermore, medical testimony “must be weighed in the light of other credible evidence of a non-medical character, such as a sequence of symptoms or events in order to judicially determine probability”. Vicknair v. So. Farm Bureau Casualty Ins. Co., 292 So.2d 747 (La.App. 4th Cir.), writ denied 296 So.2d 838 (La.1974). Lay testimony at trial confirmed Schouest’s respiratory problems. We affirm, then, the Court of Appeal’s determination that the plaintiff had contracted silicosis while employed as a painter/ sandblaster for J. Ray McDermott Co., Inc.

The consequence of Schouest’s having contracted silicosis is less easily resolved. Before the enactment of La.R.S. 23:1031.1, disabilities arising from diseases contracted in the course of employment were handled as forms of “cumulative injury” by the judiciary to effect a just and equitable result. Malone & Johnson, Workers’ Compensation § 219, 13 La.Civ.L. Treatise 457 (1980). In 1952 the Louisiana legislature sought to eliminate some of the uncertainties by providing for occupational disease coverage and by expressly providing for certain occupational diseases under the Louisiana workers’ compensation law. La.R.S. 23:1031.1. Silicosis was one such disease. La.R.S. 23:1031.1(B)(4).

Then because many employment related diseases did not fit into the statutory categories, the Louisiana legislature in 1975 replaced the specific schedule with one of a more general nature. This change, nonetheless, was designed to include those previously enumerated (like silicosis) as well as to embrace certain others formerly excluded. Malone & Johnson, supra § 220 at 462. Silicosis, then, is a statutorily covered occupational disease, for which a worker may receive workers’ compensation.

Regarding employees who are eligible to receive compensation, La.R.S. 23:1031.1(A) provides:

Every employee who is disabled because of an occupational disease as herein defined, or the employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.

This section of the statute was interpreted in LaCoste v. J. Ray McDermott and Co., Inc., 250 La. 43,193 So.2d 779 (1967) to deny compensation to a painter and sandblaster who had contracted silicosis but who had not quit working in the same job. This Court regarded the plaintiff as not totally and permanently disabled because he continued to work “at the same job and for the same employer without undue pain or discomfort.” LaCoste, supra. Finding no disability, this Court allowed no compensation judgment.

Later, in Chivoletto v. Johns-Manville Products Corp., 330 So.2d 295 (La.1976), a split court denied compensation for total and permanent disability to a plaintiff who had quit working with asbestos because of a plant shut down, but who had continued working at a different type of employment at increased wages. There was, too, in that case, a serious factual question concerning whether plaintiff actually suffered from asbestosis. The Court majority concluded that he was not disabled.

Unlike LaCoste and Chivoletto, Schouest is disabled. On the advice of his doctor and because of his medical condition, he has discontinued working at sandblasting. He is prohibited for the same reasons from ever working again in a silica environment.

The matter remaining for the Court in this case is to ascertain the character of Schouest’s disability under the present law.

Plaintiff argues that he is entitled to an award for permanent total disability because he is unable to work at sandblasting or in any but a silica free environment, and because his impaired physical condition and limited education liken him to those injured workers whom this Court has found to be “odd lots” in the competitive labor market.

Under La.R.S. 23:1221 prior to the 1975 legislative amendments, plaintiff would have been classified permanently and totally disabled since the statute provided permanent total disability if a worker was unable to perform “work of any reasonable character,” and under the judicial interpretation of this language in Knispel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9 (1932) and its progeny, an injured plaintiff seeking compensation was found to be permanently and totally disabled in virtually all cases where he was unable to engage in the same or similar work as that in which he was employed at the time of the injury.

The 1975 legislative amendments to the Louisiana Workers’ Compensation Act redefined total disability in an apparent effort to classify as partially disabled many claimants who were formerly characterized as permanently and totally disabled despite their being able to earn substantial wages at a different occupation. As a balance to the reclassification, the amendments increased the benefits payable to the permanently and totally disabled employees.

Permanent total disability in the amended act is defined as the inability “to engage in any gainful occupation for wages whether or not the same or similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience ...” La.R.S. 23:1221(1) and (2) (Acts 1975, No. 586 § 9) The new definition apparently resulted from legislative reaction to the judicial disability standard enunciated in Knispel, supra. Malone and Johnson, supra § 272, at 597. The commentators foresaw the court’s adoption of the “odd-lot” doctrine in Louisiana as a means of providing relief for marginal workers who were unable to be classified totally and permanently disabled under the statutory definition. Malone and Johnson, supra § 276 at 619; Johnson, Workmen’s Compensation, 39 La.L.R. 881 (1979). “Odd-lot” became a jurisprudential reality in Louisiana in 1980 with Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980).

To argue that he should be classified by this Court as an odd lot worker in a competitive labor market, plaintiff relies on Oster, supra, and Turner v. American Mutual Insurance Co., 390 So.2d 1330 (La.1980). In Oster, supra at 1323-1324, this Court enunciated the following test:

In order to determine whether the plaintiff fits within this category of odd lot workers, he must show that because of his physical impairment, mental capacity, education, training, age, availability of employment in his area, and any other relevant factors, that he “cannot perform the substantial and material parts of some gainful work or occupation with reasonable continuity. “Reese v. Preston Marketing Assoc., 274 Minn. 150, 142 N.W.2d 721, 723 (1966). If the plaintiff is successful in showing a combination of factors indicating that the services which he is able to render are so limited in quality, quantity, or dependability that a market for his labor does not exist within which he can effectively compete, he has presented a prima facie case for classification in the odd lot category. An offering of such proof by the plaintiff, therefore, satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The defendant employer then has the onus of showing that there are jobs which are available to provide a steady income to the plaintiff or that will provide him with “a gainful occupation.” It is fairer to place the burden on the defendant to show that there are steady jobs to the plaintiff, after plaintiff has shown his odd lot status, than to require the plaintiff to prove the universal negative of not being employable at any occupation. Brown v. Safeway Stores, 483 P.2d 305, 308 (N.M. App.1971); Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 P.2d 1360, 1363 (1977); Larson, supra. § 57.61 at pp. 10-136-137.

In Oster, this Court found that the plaintiff had established a prima facie case for classification as an “odd lot” worker, and that the defendant employer had not rebutted plaintiff’s prima facie case. This Court, therefore, awarded her permanent total disability compensation. In Tamer, we found that the worker had established a prima facie claim for compensation under the odd lot doctrine, but remanded the case to the district court to allow the defendant employer an opportunity to show that “an actual job in Turner’s vicinity exists that might afford the plaintiff gainful employment,” because the use of the odd lot doctrine to determine the extent of a worker’s disability had only been “recently announced” Turner, supra, at 1334.

The parties, in oral argument, have expressed satisfaction with the existing record for the purpose of this Court’s application of the odd lot doctrine to the case at hand. No remand is required. On the basis of the record, we conclude that while plaintiff’s silicosis indeed prevents him from working as a sandblaster, he is otherwise able to work and is not so disabled as to make him a marginal employee. As the Court of Appeal properly concluded, Schouest is able to perform moderate to heavy work in a silica free environment. He was offered employment by the defendant; he has worked with his brother-in-law’s company as a tack welder. Plaintiff has not made out a prima facie case for classification as an odd lot worker and so is not eligible for permanent total disability.

This does not, however, preclude his receiving any compensation award at all. See e.g. Allor v. Belden Corp., 393 So.2d 1233 (La.1981). Under La.R.S. 23:1221(3) as amended, an employee who is unable “to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience ...” is classified as partially disabled.

A preponderance of the evidence establishes that Schouest can no longer do sandblasting, that he cannot return to work where he would be exposed to “respirable free silica” and that his physical condition will not improve with time.

The parties in this litigation argue about whether defendant’s offer of employment was an offer of employment in a silica free environment. The Court of Appeal found that the proposed jobs were in such an environment. We might find reason to conclude .otherwise. However, we need not resolve that factual issue here. Offers of other employment are irrelevant in cases of partial disability. Only actual employment and earned wages. are relevant and then only as a credit against the compensation otherwise due. La.R.S. 23:1221(3) fixes the compensation rate for partial disability at “sixty-six and two thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, ...” (Emphasis provided)

This latter provision of the Workers’ Compensation Act as amended in 1975 is unlike the former partial disability provision which had fixed compensation according to a formula based on the loss of “earning capacity” rather than loss of actual earnings. See Malone & Johnson, supra § 275 at 615.

We conclude that the plaintiff is entitled to compensation based on permanent partial disability from August 6, 1979, the date on which compensation was last paid. The appropriate rate and duration of compensation is to be fixed by the trial court in accordance with law, with the appropriate credit for those weeks in which actual wages are earned. Furthermore, under La.R.S. 23:1203, plaintiff is entitled to receive reimbursement for his medical expenses.

We conclude, however, that plaintiff is not entitled to penalties and attorney’s fees. La.R.S. 23:1201.2 allows the awarding of penalties and attorney’s fees when the employer’s discontinuing compensation payments is found to be “arbitrary, capricious, or without probable cause.” As noted in Crawford v. Al Smith Plumbing and Heating Service, Inc., 352 So.2d 669 at 673 (La.1977):

The penalty provision is stricti juris and should be imposed only in those instances in which the facts negate probable cause for nonpayment. Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974).

In this case, the award to which plaintiff is entitled is a consequence of the amendments to the Louisiana Workers’ Compensation Act, particularly the new provision on partial disability which only allows the deduction or offset of wages actually earned from the amount of compensation otherwise due (rather than allowing earning capacity to be taken into account). This Court has not heretofore had to consider the interrelationship of that portion of the 1975 amendments with the occupational disease coverage under the Act. Furthermore, at the time the employer decided to discontinue compensation, he was perhaps prompted by LaCoste and Chivoletto, silicosis and asbestosis disability cases decided unfavorably to the workman, although admittedly decided under the compensation statute before its 1975 amendment. Under these circumstances, we cannot say that the defendant employer’s refusal to pay compensation was arbitrary, capricious or without probable cause. For these reasons, penalties and attorney’s fees are not appropriate.

DECREE

For the reasons assigned, the judgment of the Court of Appeal is reversed. The case is remanded to the trial court for entry of a judgment in favor of the plaintiff consistent with this opinion, with the trial judge determining the appropriate rate and duration of compensation for partial disability, and the medical expenses for which reimbursement is owed.

REVERSED AND REMANDED.

WATSON, J., recused.

LEMMON, J., concurs and will assign reasons.

LEMMON, Justice,

concurring.

The hard facts of this case point up the unfairness in certain situations when the phrase “wages which the injured employee actually earns” in R.S. 23:1221(3) is interpreted as the court does here.

In this case the injured employee is able to perform every job he was able to perform prior to his termination of employment, as long as he does the work in a silica-free atmosphere. The employer offered him other jobs, allegedly in a silica-free atmosphere, but he declined the offer and is now receiving compensation, during those weeks in which he earns no wages. Under the majority’s interpretation, he will receive benefits for 450 weeks, whether or not he ever seeks other employment which he is admittedly capable of performing.

In 1975 the Legislature attempted to redefine total disability to exclude those injured employees who are able to engage in gainful employment, but cannot perform the duties in which he was customarily engaged at the time of his injury. Prior to the 1975 amendments, such a claimant was classified as totally disabled and was entitled to benefits for the duration of his disability, subject to the statutory limitation, even if he actually earned equal or greater wages at another job. Knipsel v. Gulf States Utilities Co., 174 La. 401, 141 So. 9 (1932). Under the 1975 amendments, an injured employee who can return to work, but only at a different job, is now classified as partially disabled and is entitled to benefits only during those weeks in which he earns less than his wages at the time of the injury. As a result of the legislative tradeoff, an injured employee who truly is totally disabled receives greater benefits for the unlimited length of his disability, and one who is only partially disabled receives benefits for a limited period when he is unable to equal his pre-injury earnings, but receives no benefits when he is earning more than he did prior to the injury.

The scheme generally works well, because most employees would prefer to work and earn full wages than to sit back and collect compensation at 66%% of wages. The system falters, however, whenever a person is able to work at available jobs and chooses to draw benefits instead. In fact, a partially disabled employee can, under this decision, take a 450-week vacation at two-thirds pay or perhaps can even put his 450 weeks “in the bank” (since benefits under R.S. 23:1221(3) are deferrable until he is not working) and collect two-thirds pay for 450 weeks at some point in the future as a sort of retirement benefit.

The Legislature surely did not intend such a result. Admittedly, the change in the wording of R.S. 23:1221(3) from the difference between prior wages and the wages the employee “is able to earn thereafter” to the wages he “actually earns” thereafter justifies the court’s decision in this case. Nevertheless, I believe that the Legislature only intended benefits to be payable for partial disability when the disabled employee does not earn wages because of that disability, either because the injury prevents his working in a particular week or because work is not available to a worker in that condition with his particular education and skills.

I would construe the statute as placing the burden of proof on the employer to show the employee’s ability to work and the availability of work, but I would disallow benefits when the employer proves the employee does not work only because he chooses to collect compensation instead.

This is the appropriate standard, in my opinion, to apply on remand in this case.

       Honorable Melvin A. Shortess participated in this decision as an Associate Justice ad hoc.

      . The trial judge stated in granting the motion to dismiss:
      The Court is convinced from the medical testimony, that it has heard in this Courtroom relative to this case, there has been no establishment of any disability. The Court concurs with Counsel for the Defendant, based on the medical testimony that the Court has heard, that this man is able to go back to work.

      . Plaintiff seeks permanent total disability, La. R.S. 23:1221(2), alternatively partial disability, La.R.S. 23:1221(3), and further alternatively, award for permanent impairment of physical function. La.R.S. 23:1221(4)(p).

      . See Crooks v. Belden Corp., 334 So.2d 725 (La.App. 3d Cir. 1976); Fontenot v. Liberty Mutual Ins. Co., 230 So.2d 402 (La.App. 3d Cir. 1970); Norred v. Travelers Ins. Co., 236 So.2d 637 (La.App. 2d Cir.) writ denied 256 La. 842, 239 So.2d 354 (1970); Saucier v. General Oceans Corp., 241 So.2d 781 (La.App. 3d Cir. 1970).

      . Because Dr. Ziskind had died before trial of this matter, his medical report was admitted notwithstanding a hearsay objection by the defense. There was no error in the admission of this report under these circumstances. The mere fact that proferred evidence is hearsay is not sufficient grounds to exclude it in a workers’ compensation case. See Oestriecher v. Mutual Life Ins. Co. of New York, 167 So.2d 461 (La.App. 4th Cir.), cert. denied 246 La. 910, 168 So.2d 821 (1964); Johnson v. Cajun Enterprises, 293 So.2d 617 (La.App. 3rd Cir. 1974); Montgomery v. Delta Concrete Products, Inc., 290 So.2d 769 (La.App. 1st Cir.) cert. denied 294 So.2d 823 (La.1974). The foregoing cases are cited for this proposition in an excellent discussion on the admissibility of hearsay in workers’ compensation cases appearing in Malone & Johnson, Workers’ Compensation § 390, 13 La.Civ.L. Treatise 297.

      . Chivoletto is also distinguishable in that the plaintiff there came under the permanent and total disability provisions of the compensation law before the significant 1975 amendments. The plaintiff here is governed by the law as amended in 1975.

      . See also: Lattin v. HICA Corp., 395 So.2d 690 (La.1981) and Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980).

      . To establish the silica free nature of the job sites, Mr. J. Hubbard, an expert in the field of vocational rehabilitation and a job placement specialist hired by the defendant employer after litigation had begun, spent only two and a half hours at the job location and then at a time when sandblasting was not in operation. No monitoring equipment was utilized. Plaintiff presented substantial testimony in rebuttal. Three lay witnesses who had worked for the defendant in and about the yard, the tool shed and the receiving area in question testified concerning the dust-laden nature of the environment and the unpredictability of the silica in the air, given shifting wind and weather conditions.

      .The legislative change has not been without some criticism. Malone and Johnson, supra at 619 notes:
      To pay the maximum amount of compensation to a capable injured worker who declines to work, and, at the same time, to pay decreasing amounts of compensation to capable individuals who choose to work, will satisfy no one’s sense of propriety. But that is, on the surface, the legislature’s choice. (Emphasis in original)

      . La.R.S. 23:1221(3) provides:
      For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, resulting from injury occurring on and after September 1, 1975, and on or before August 31, 1976; and not beyond a maximum of four hundred twenty-five weeks for such partial disability resulting from injury occurring on and after September 1, 1976, and on or before August 31, 1977, and not beyond a maximum of four hundred fifty weeks for such partial disability resulting from injury occurring on and after September 1, 1977; provided further that for any week during which the employee is paid any compensation under this subdivision (3) the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this subdivision (3) and for any week during which the employee is paid no compensation, because of the employee’s actual earnings during that week, the employer shall not be entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under this subdivision (3), and in no event shall the total number of weeks of compensation for such partial disability under this subdivision (3) be increased beyond the maximum number of weeks stated in this subdivision (3).

      . For this reason the court of appeal found he was not yet disabled in a traditional sense and denied compensation.

      . As noted earlier, the legislative trade-off was to increase benefits for those who truly are totally disabled and to classify as partially disabled those who previously fit the Knispel situation. The result of this decision is that a Knispel claimant, who previously would have received 66/s% of wages for 550 weeks, is now eligible to receive the same benefits for 450 weeks, if he chooses not to work at another job.