text:
    T. G. LEE FOODS, INC., and Professional Administrators, Inc., Appellants, v. James WALKER, Appellee.
    No. SS-147.
    District Court of Appeal of Florida, First District.
    March 13, 1981.

      Donna C. Wyatt of Cooper & Rissman, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish and Bill McCabe of Shepard, McCabe & Cooley, Orlando, for appellee.
   MILLS, Chief Judge.

We reverse the order of the Judge of Industrial Claims insofar as it makes an award for temporary total disability from 24 August to 1 November 1978. Additionally, we reverse the amount of the award of attorneys fees and costs and remand for reconsideration in light of our ruling here.

The relevant facts are that James Walker, a route salesman for a dairy, was injured in a compensable accident on 4 November 1977. He returned to work and in February 1978 the company moved him to the position of assistant dispatcher so that he would not have to do heavy lifting. In July of 1978, surgery was necessary as a continued result of the compensable accident. On 23 August 1978, the doctor released Walker to return to work and he contacted his employer and was told that the job as assistant dispatcher was filled and they had no other work for him. The date of maximum medical improvement was found to be 1 November 1978 and is not challenged here.

Walker presented evidence of a job search, testifying that he had looked for work at at least 12 different places. He presented a witness from Orlando Upholstery who stated that all of the jobs that were available required lifting and that those jobs were not within Walker’s physical limitations. In addition, a witness from Florida Bumper Sales testified that the job required lifting bumpers and that he let Walker attempt to lift the bumpers but he had to rest too much and the witness was unable to hire him. Walker stated that he sought jobs other places, including places that had sales jobs that did not have heavy lifting, and he was unable to obtain work.

Based on these facts, we believe there was competent substantial evidence to support the Deputy Commissioner’s finding that Walker suffered a 40% permanent partial disability of the body as a whole based on a loss of wage earning capacity. The potential employers specifically testified that their failure to hire Walker was based on his physical condition caused by the com-pensable accident. Walker’s own testimony concerning his attempt to find sales positions that did not involve heavy lifting supports a finding that he did seek work within his physical limitations as required by Mahler v. Lauderdale Lakes National Bank, 327 So.2d 507 (Fla.1975).

Because of our disposition of the issue concerning the loss of wage earning capacity, we need not and we do not rule here on whether there was competent substantial evidence to support a finding of merger. The loss of wage earning capacity found exceeded the impairment ratings given by both physicians.

Appellant contends that there was error in the award of temporary total disability benefits from 2 July 1978 to 1 November 1978. We agree. First, we note a technical error in the claim by appellant in that the subject award began on the twelfth of July, not the second. Second, as to the ending date for the period of temporary total disability we believe, and the appellant concedes, that there is competent substantial evidence to support an award of temporary total disability until 23 August 1978. On that date the physician released Walker to return to work and he attempted to do so, but was unable to return to his prior employer because his prior position had been filled and there was no other work for him. There is no evidence that Walker made any other effort to find work at that time even though he affirmatively stated that he could and would have worked.

Temporary total disability is a healing period during which the claimant is totally disabled and unable to work due to his injury. Concord Realty Corp. v. Romano, 159 Fla. 1, 30 So.2d 495 (1947); Cling Electric, Inc. v. Jones, 376 So.2d 481 (Fla. 1st DCA 1979). Although maximum medical improvement was not reached until 1 November 1978, there is no automatic relationship between temporary total disability and the achievement of maximum medical improvement. The key is the capacity to return to work. See National Airlines v. Rowley, IRC Order 2-2817 (July 17, 1975); Depree Construction Corp. v. Robertson, IRC Order 2-2685 (August 9, 1974), Cert, denied 312 So.2d 739 (Fla.1975). Accordingly, we reverse the award of temporary total disability benefits for the period after which the doctor released Walker for return to work and Walker indicated his ability to do so, 24 August, until the date of maximum medical improvement, 1 November.

Appellant also contests the award of attorneys fees based on the date of the initial claim, urging that since the first claim was voluntarily dismissed, it was not successfully prosecuted. Section 440.34, Florida Statutes (1977), provides that the attorney’s fee is due when the claimant has employed an attorney in the successful prosecution of a claim and only the second claim was successfully prosecuted. This contention is without merit. In Schollenberger v. City of Miami, 241 So.2d 385 (Fla.1970), the Supreme Court reviewed a factual situation similar to the one here where the re-filed claim was substantially identical and ruled as follows:

However, where benefits are claimed on a set of facts, and the employer first denies and then concedes that benefits are due, and where attorneys’ fees ordinarily would be awarded, it is not equitable to cut off entitlement to attorneys’ fees under Rule 3, for work done which contributed directly to ultimate settlement of the case. This is especially true where the original and refiled claims are substantially identical. A different result would be proper in those cases where the second claim contains different allegations from the first, and in which a decision by the employer that benefits were due would not represent a reversal of employer’s position.

We affirm the entitlement to attorneys fees based on Schollenberger, supra.

Since the award for temporary total disability is reversed in part, the amount of attorneys fees and costs must also be reversed and remanded for reconsideration in light of our disposition of the case. The order is affirmed in all other respects.

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

McCORD and THOMPSON, JJ., concur.


source: Caselaw Access Project

author: JOANOS, Judge.

license: Public Domain

text:
    Lester D. CURLESS and Alba J. Curless, his wife, Appellants, v. The COUNTY OF CLAY, a Body Politic of the State of Florida and the Clay County Zoning Commission, a political subdivision of the State of Florida, Appellees.
    No. VV-102.
    District Court of Appeal of Florida, First District.
    March 13, 1981.

      David B. Lee, Jr., of Scruby, Lee, Cobb & Waite, Orange Park, for appellants.
    William A. Wilkes of Anderson, Wilkes & McAnnally, Green Cove Springs, and John Kopelousos, Orange Park, for appellees.
   JOANOS, Judge.

The appellants, Lester and Alba Curless, seek review of an order of the Circuit Court which upheld the decision of appellees, Clay County and Clay County Zoning Commission, to deny the Curlesses’ rezoning application. The trial judge determined that the rezoning question was “fairly debatable” and that the constitutional challenges made by the Curlesses did not need to be decided. We affirm the order, in part, but remand the case for a determination of the merits of the constitutional issues that were raised.

In 1973 the Clay County Commission enacted Ordinance 73-1 which altered the procedure by which rezoning applications were processed. The old zoning map was maintained, but a new appointed body, known as the Zoning Commission, was created with the authority to approve or deny rezoning requests and to amend county zoning regulations. A party aggrieved by a decision of the Zoning Commission had the right to appeal to the Clay County Commission which would in turn conduct a review of the record.

Lester and Alba Curless approached the Zoning Commission in 1976 with a request to rezone their land located near Doctor’s Lake on U.S. 17 from RB-residential to BA-business. They intended to build a small convenience store on the property. The Zoning Commission denied their application. The Curlesses appealed to the Clay County Commission, which upheld the Zoning Commission and denied the petition. The Curlesses then filed a complaint in Circuit Court seeking injunctive and declaratory relief.

The complaint alleged, among other things, that the failure to rezone the subject property was arbitrary, capricious and confiscatory in nature. Additionally, the Curlesses charged that Ordinance 73-1, under which the Zoning Commission was created, was unconstitutional because it delegated legislative authority to rezone land to an appointed, non-legislative body and because it was at variance with general law (Chapter 163, Florida Statutes). The trial judge refused to rule on the constitutional issues, stating that it was unnecessary to broach the constitutional questions because the decision not to rezone the land was fairly debatable. On denial of the Curless-es’ request for rehearing relating to the constitutional issues, the judge again refused to rule, but he noted that his refusal was grounded on the view that questions regarding the validity of Ordinance 73-1 were moot because shortly before trial Ordinance 73-1 had been repealed and replaced by a new ordinance, Ordinance 79-16.

One of the several points raised by the Curlesses on appeal challenges the trial judge’s decision that the denial of their rezoning request was not arbitrary or capricious. In finding that the rezoning question was fairly debatable and not subject to alteration by the court, the trial judge used the proper standard. Because zoning is a legislative function, the court should avoid taking action in that area except when the zoning authority’s decision was so arbitrary or unreasonable as to constitute a confiscation of property. Town of Hialeah Gardens v. Hebraica Community Center, Inc., 309 So.2d 212 (Fla.3d DCA 1975). See also City of Miami Beach v. Weiss, 217 So.2d 836 (Fla.1969). The judge’s conclusion that the zoning question was fairly debatable was based upon evidence, including expert testimony, taken at a full hearing, and after reviewing this evidence we find no error in the judge’s decision on that point.

Each of the other issues raised by the Curlesses on appeal attack the constitutionality of various portions of Ordinance 73-1. They argue that the ordinance improperly delegates legislative authority to the Zoning Commission, an appointed body, and that the ordinance is unconstitutional insofar as its provisions are inconsistent with Chapter 163, Florida Statutes. In response to these arguments, appellee observed that the trial court never reached the merits of the constitutional questions; therefore, the principal issue that this court must deal with is whether or not the trial judge erred by refusing to rule on the constitutionality of Ordinance 73-1. We agree with appel-lee’s approach to the issues.

The trial judge offered two explanations for his refusal to rule on the constitutional questions. In his initial order, he reasoned that it was not necessary to reach those issues because he was able to rule on “other grounds.” The “other ground” cited by the trial judge was his decision that the rezoning question was “fairly debatable” which led to the judge’s ruling that the Curlesses were entitled to no relief. Because the Curlesses would be entitled to some relief if Ordinance 73-1 were, in fact, unconstitutional, the trial judge’s application of the policy to avoid a determination on the constitutional validity of a legislative enactment by relying on non-constitutional grounds is inappropriate. The policy emanates from the judicial deference to the legislative branch of government, not from any jurisdictional bars like the “case or controversy” requirement of the Federal Constitution. Sheldon v. Powell, 99 Fla. 782, 128 So. 258 (1930). Courts generally will not rule on the constitutionality of a statute or ordinance if such a ruling is not necessary to the outcome of the case; for example, when the relief requested may be granted on non-constitutional grounds. See, e. g., Singletary v. State, 322 So.2d 551 (Fla.1975); Peoples v. State, 287 So.2d 63 (Fla.1973); North American Co. v. Green, 120 So.2d 603 (Fla.1960); Rogers v. State Board of Medical Examiners, 371 So.2d 1037 (Fla. 1st DCA 1979). Where, as here, the “other grounds” do not favor the party raising the constitutional issues, however, it is necessary for the court to determine whether or not the challenged statute or ordinance is constitutional.

As a second ground for avoiding the constitutional issues, the trial judge stated in his order denying rehearing that the constitutional validity of Ordinance 73-1 was a moot issue because that ordinance had been repealed and replaced before trial by Ordinance 79-16. In finding that the constitutional issues were moot, the trial judge again ignored the policy reasons behind the court’s general avoidance of constitutional questions when decisions on them are not necessary. Like the policy of avoiding constitutional issues if a decision can be reached on other grounds, the rationale for not ruling on a moot issue is that such a ruling would have no effect on the ultimate outcome of the case. See generally, 3 Fla.Jur.2d Appellate Review § 287. Ordinarily, when a challenged statute or ordinance has been repealed, the question of its validity becomes moot because nothing can be accomplished by ruling unconstitutional a statute or ordinance which is no longer in effect. See Board of Public Instruction v. Budget Commission of Orange County, 249 So.2d 6 (Fla.1971); Board of Public Instruction v. NAACP, 210 So.2d 713 (Fla.1968). If the ultimate relief under such a situation would be to declare the statute unconstitutional and void, the courts would only be voiding a statute which has already been voided by repeal.

An issue does not become moot, however, if the effect of not deciding the issue differs from the relief that might be granted by ruling on the issue. See, e. g., Harrell v. Schleman, 160 Fla. 544, 36 So.2d 431 (1948). Although the Curlesses seek to have a repealed ordinance declared invalid, which might ordinarily make the issue moot, such a ruling would also have the effect of nullifying the Zoning Commission’s denial of the rezoning application and would entitle the Curlesses to a de novo hearing under the new ordinance. If the trial Court’s order is allowed to stand, (without a determination on the constitutionality of Ordinance 73-1) the decision that was reached by the Zoning Commission on the Curlesses’ rezoning application is res judicata and will foreclose an attempt by the Curlesses to seek rezoning of the same property on the same grounds. Under Florida law, the doctrine of res judicata applies to administrative zoning decisions unless it is shown that there has been a substantial change of circumstances since the earlier ruling. Metropolitan Dade County Board of County Commissioners, 231 So.2d 41 (Fla.3d DCA 1970). Because the Curlesses will still suffer prejudice from their proceedings under Ordinance 73-1, the constitutional validity of that ordinance is not moot, despite its repeal by a later ordinance.

The order is affirmed with respect to the determination that the zoning decision was fairly debatable. The trial judge’s finding that a ruling on the constitutional issues was unnecessary is reversed and the case is remanded for consideration of those issues.

ERVIN and BOOTH, JJ., concur.

      . Under some circumstances, a court may decide a question that no longer affects the parties because the question presents matters of great public importance. Plante v. Smathers, 372 So.2d 933 (Fla.1979).


author: PER CURIAM.

text:
    UNIVERSITY OF FLORIDA and Division of Risk Management, Appellants, v. Alice GREEN, Appellee.
    No. VV-144.
    District Court of Appeal of Florida, First District.
    March 13, 1981.

      Jack A. Langdon and Anthony J. Salzman, of Jones & Langdon, Gainesville, for appellants.
    G. B. Wilson, II, Gainesville, for appellee.
   PER CURIAM.

Alice Green suffered a compensable accident on March 28, 1977, when she negotiated a move through her office between two desks placed close together. On January 11,1971, while working in a bakery, she had received a compensable injury and had continued over this period of time to suffer pain to her left shoulder and neck, which caused her severe, persistent headaches. Testimony of the doctor who treated her for both the January, 1971, accident and the March, 1977, accident was that she suffered scoliosis of the spine, which is a disease found primarily in young teenagers. It is congenital and continuous.

Subsequent to the hearing, the Deputy Commissioner entered his order finding, among other things, that the Claimant had reached maximum medical improvement on May 17, 1979, and that Claimant was entitled to total disability compensation, and awarded her attorney a reasonable attorney’s fee. Appellants, University of Florida and Division of Risk Management, urge reversal by this Court in that “the Deputy Commissioner erred in finding that Claimant was permanently and totally disabled as a result of the accident of March 28, 1977, as there is no competent substantia] evidence or sufficient findings to support the award of such disability related solely to the accident of March 28, 1977.” Appellants also rely on and urge reversal in that “the Deputy Commissioner erred in finding the Claimant to be permanently and totally disabled,” and, of course, question the attorney’s fee and costs.

We think the question could be more succinctly stated and that Points I and II are overlapping. In any event, the Deputy Commissioner made no finding of fact regarding the question of whether there was a merger of the congenital scoliosis, the 1971 accident, or the 1977 accident. He simply states in his order that he finds the Claimant to be permanently and totally disabled. He does not say, at least in his order, on what he bases that disability. He does not say that it is a result of the March 28, 1977, accident or any other accident, although he does find that the accident is compensable and that the Claimant was injured as a result of her employment on March 28, 1977. We have no quarrel with that phase of the order. However, both this Court and its predecessor, the Industrial Relations Commission, have repeatedly held that the deputy commissioner’s order “... shall set forth findings of fact, conclusions of law, and the deputy’s determination of the claim or other rulings.” Westberry v. Copeland Sausage Company, 389 So.2d 1214, 1215 (Fla. 1st DCA 1980); Fla.W.C. R.P. 14; § 440.25(3)(c), Fla.Stat. (1977). The duty of the deputy commissioner in this regard is fully explained in Vargas v. Americana of Bal Harbour, 345 So.2d 1052 (Fla.1977), and in Kennedy v. Tyson, 382 So.2d 820 (Fla. 1st DCA 1980), wherein Judge Shaw stated:

The order lacks the degree of specificity necessary to enable us to determine how he arrived at his conclusions and we find it necessary to reverse and remand with directions that the judge reconsider his order in light of this opinion. Id., at 821.

That is what we must do in this case.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

LARRY G. SMITH and McCORD, JJ., and LILES, WOODIE A. (Retired), Associate Judge, concur.


author: THOMPSON, Judge.

text:
    BORDO CITRUS PRODUCTS and American States Insurance Company, Appellants, v. Elvira VARNADORE, Appellee.
    No. VV-286.
    District Court of Appeal of Florida, First District.
    March 13, 1981.
    Bernard J. Zimmerman and Robert C. Barrett of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Michael B. Murphy of Stanley, Wines & Smith, Auburndale, for appellee.
   THOMPSON, Judge.

The appellants challenge a workers’ compensation Order, contending in part that the Deputy Commissioner (“the Deputy”) erred in finding that the claimant’s pre-ex-isting physical impairment merged with the effects of her work-related accident. We agree and reverse.

The claimant suffered a compensable injury in January 1977, when she fell onto a floor and hurt her hip, back, shoulder, neck and head. However, she has experienced back pain since 1956, and by 1976, doctors had diagnosed degenerative arthritis of the claimant’s hip and lumbosacral spine.

By August 1977, Dr. McCollough, an orthopedic surgeon, had diagnosed degenerative arthritis of the claimant’s neck and shoulder. However, he testified that the claimant’s accident did not cause this degenerative arthritis, and he did not know whether her accident aggravated the arthritic joints that existed throughout the claimant’s body.

In August 1979, Dr. McCollough issued a final report, finding that the claimant suffered an overall 32% permanent partial disability (“PPD”), with one-half of this disability existing prior to 1977. This report and the ratings contained therein were made “without consideration of relationship to industrial injury.”

In 1980, the Deputy entered his Order, finding in part that a condition of merger existed, based on Dr. McCollough’s 1979 report. The Deputy also found that the claimant experienced a 32% anatomical PPD, and he determined that due to her loss of wage-earning capacity, she was permanently totally disabled.

In order for merger to occur, there must be a prior permanent impairment that interacts with the effects of a later compensable injury in such a manner as to enhance the residual disability that would normally result from the later com-pensable injury. See Frank Bitz, Inc. v. Coley, IRC Order 2-3656 (Jan. 15,1979). In this case, Dr. McCollough’s report does not provide an adequate basis for a finding of merger because that report does not indicate that the elements of merger exist herein. In fact, the report expressly states that the 32% PPD rating “is made without consideration of relationship to industrial injury.” Thus, it is clear that Dr. McCollough did not consider the effect of the claimant’s injury on her physical condition when he assigned a PPD rating. It is equally clear that his assignment of a 16% PPD rating since 1977 does not have any correlation to the claimant’s 1977 industrial injury. Moreover, even if there was such a correlation, a finding of merger would still be invalid.

The doctor found a 16% PPD prior to 1977, and an additional 16% PPD since 1977, for a total of a 32% PPD. This figure was used by the Deputy as representing PPD due to merger. However, even if the 16% PPD since 1977 was related to the claimant’s industrial injury, a finding of merger would still be invalid because merger does not exist if a doctor provides a PPD rating simply by adding the disability rating for a pre-existing condition to the disability rating for an industrial injury. Instead, there should be evidence demonstrating that the claimant suffered an overall PPD rating (as a result of two conditions merging) which is greater than the sum or combination of the PPD ratings for both conditions. See Coley; see also Castro Farms v. Berry, 8 FCR 179 (1974), cert. discharged 313 So.2d 758 (Fla.1975). Such evidence is lacking herein.

There is no competent substantial evidence to support a finding of merger in this case. Moreover, there is no evidence to support a finding of any PPD resulting from the claimant’s injury. Dr. McCol-lough’s report was the only evidence regarding the claimant’s PPD. However, the PPD rating contained therein was “made without consideration of relationship to industrial. injury.” Thus, the claimant has completely failed to establish that she has incurred any PPD attributable to her injury. Accordingly, we reverse the Deputy’s Order.

SHIVERS and SHAW, JJ., concur.

       Even if there was evidence of PPD attributable to the claimant’s injury, our previous reversal on the issue of merger would result in a reversal of the Deputy’s finding that the claimant is entitled to permanent total disability (“PTD”) benefits, based on loss of wage-earning capacity. See Coley (where the Deputy found a 35% anatomical PPD based on merger, and then found PTD, obviously due to lose of wage-earning capacity. The IRC reversed the finding of merger and noted that “it is necessary to reverse the reward of [PTD benefits] arrived at by improperly applying merger principles.” Here, the Deputy found that because of a 32% anatomical PPD (based on merger), “the claimant is unable to stand, [etc.]” Thus, he improperly applied merger principles to arrive at a determination of PTD.)


text:
    CATRON BEVERAGES, INC., and Hartford Accident & Indemnity Company, Appellants, v. Robert MAYNARD, Appellee.
    No. VV-472.
    District Court of Appeal of Florida, First District.
    March 13, 1981.

      Frank G. Cibula, Jr., West Palm Beach, for appellants.
    C. R. McDonald, Fort Pierce, for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

This appeal is so totally devoid of merit that to label it as frivolous may be a euphemism.

The sole issue before the deputy commissioner concerned the reasonableness of certain charges for medicines prescribed for claimant. The carrier, correctly asserting that its obligation to pay for medicines was limited to the customary and reasonable charges for like medicines in the community, Section 440.13(3)(a), Florida Statutes (1979), refused to pay for that part of the cost of medicines which it felt to be in excess of the statutory standard. This was a valid issue, and the carrier had the right, if not the duty, to raise it.

At hearing, however, the evidence failed to sustain the carrier’s position. A practicing physician and a pharmacist, called by claimant as witnesses, each testified to the effect that the charges for the claimant’s medical prescriptions were customary and reasonable in the community. There was no direct evidence to the contrary, the two witnesses called by the carrier each testifying that he was unaware of the customary and reasonable charges in the community for medicines of like kind as that prescribed for claimant. The reasonableness of the charges for the medication was a pure fact issue, and on this evidence the deputy commissioner quite properly found that the carrier was not justified in its refusal to pay the full amount of the charges which claimant had incurred for purchase of the medicines prescribed for him.

Undaunted, the carrier appealed, the sole thrust of its appeal being that this Court should decide that the deputy commissioner erred in finding the prescription charges to be customary and reasonable in the community. Essentially, Appellant simply asks this Court to overturn a factual finding of the deputy commissioner, which finding is not only fully supported by competent, substantial evidence, but as to which there is no evidence to the contrary. We can see no justification for the filing of this appeal, doomed to failure from its inception, as it were.

The judicial system of this state, already overburdened, should not be further burdened by the filing of frivolous appeals. Within the recent past, the number of such have proliferated, particularly in the area of workers’ compensation cases. This case, which otherwise would not merit a written opinion, should serve as fair warning that the practice of filing frivolous appeals is censured and can be expected to result in appropriate sanctions being imposed upon the appellant and appellant’s counsel guilty of such practice.

AFFIRMED.

SMITH and McCORD, JJ., concur.

      . Perhaps no principle of appellate review is more universally followed than that which proscribes an appellate court from substituting its judgment for that of the trier of fact on factual issues supported by competent, substantial evidence. See 3 Fla.Jur.2d, Appellate Review, §§ 346, 347.

      . We remind that counsel, whose signature on the brief is the equivalent of certification to the Court that the issue raised has at least arguable merit, must share the responsibility.


author: WENTWORTH, Judge.

text:
    IVY H. SMITH COMPANY and United States Fidelity & Guaranty Company, Appellants, v. Robert L. KATES, Appellee.
    No. WW-44.
    District Court of Appeal of Florida, First District.
    March 13, 1981.
    E. Robert Williams of Boyd, Jenerette, Leemis & Staas, P. A., Jacksonville, for appellants.
    Joseph 0. Stroud, Jr., of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for ap-pellee.
   WENTWORTH, Judge.

The employer/carrier appeals a worker’s compensation order which finds Kates PTD and awards him compensation, urging that Kates’ heart attack was not precipitated by work connected stress and did not arise out of employment. We affirm.

Kates, a 43 year old skilled laborer, was working with other employees laying conduit pipe in a trench when they encountered an obstruction, which required them to stop work while the supervisor checked the blueprints. While the workers were standing around, one of them threw a vine at Kates and yelled “snake”. Kates jumped up and down in fright and then ran for about 25 to 30 feet. He became short of breath, knelt down, and began feeling faint with severe pain in his chest. He continued to suffer these symptoms and three days later was admitted to the hospital with the diagnosis of myocardial infarction.

Dr. Heath, Kates’ treating physician, testified the combined stress of the fright and the physical activity precipitated the myocardial infarction. The deputy accepted this testimony and found that claimant sustained an accident within the course and scope of his employment, the physical reaction to the stress removing the case from the rule in Richard E. Mosca & Co. v. Mosca, 362 So.2d 1340 (Fla.1978), recently reaffirmed in Silvera v. The Miami Wholesale Grocery Inc., No.56,685, SCO, 1981 FLW 89 (Fla.1981).

The employer/carrier argues that Victor Wine & Liquor, Inc. v. Beasley; 141 So.2d 581 (Fla.1962), and its progeny require the unusual strain and stress to be work connected, and therefore the principles applicable to cases involving horseplay are not applicable to heart attacks. We conclude that in such situations, when horseplay is of such character as to remain within the course and scope of employment, it becomes a substitute for the work activity for purposes of applying the Victor Wine test.

Florida allows compensation to instigators and participants as well as victims of horseplay, depending on circumstances such as 1) the extent and seriousness of the deviation, 2) the completeness of the deviation, 3) the extent to which similar activity has been forbidden, accepted or tolerated, and 4) the extent to which the horseplay was expected or reasonably foreseeable. Times Publishing Company v. Walters, 382 So.2d 720,721 Fla. 1st DCA (1980); Webb v. Perini, Walsh, Mills & Blythe Brothers, 2 FCR 9 (1956); Boyd v. Florida Mattress Factory, Inc., 128 So.2d 881 (Fla.1961); Publix Supermarkets, Inc. v. Murdock, IRC Order 2-3652 (1979). When the horseplay is an insubstantial deviation and a reasonably foreseeable result of the work conditions, and the requirements of Victor Wine are met, heart attacks resulting from horseplay should be treated as any other injury.

There is competent substantial evidence in the record to support the findings in the order. It is uncontroverted that Kates was a victim of the horseplay and as the court observed in Times Publishing, horseplay during enforced work breaks is foreseeable. The testimony of Dr. Heath, taken with that of claimant, clearly establishes an identifiable, physical exertion greater than that usually required of claimant by his job.

The facts of this case distinguish it from City of Jacksonville v. Yarbor, IRC Order 2-3675 (1979), in which the claimant sustained a myocardial infarction due to the routine activity of his job coupled with extraordinary stress from a phone call threatening physical violence. That unusual stress was entirely emotional, placing the case squarely within the confines of Mosca. Pinellas County Board of County Commissioners v. Whittington, IRC Order 2-3682 (1979), is similarly distinguishable. There was no evidence of physical exertion beyond the normal job requirements, and the emotional stress caused by claimant’s fear of snakes, which resulted in a cerebrovascular accident, was insufficient to overcome the Mosca rule.

As to appellant’s second point, the record supports the determination that claimant’s heart attack was within the course and scope and arose out of his employment because the requisite unusual physical and mental job stress was a precipitating cause, contrary to appellant’s argument that it was due solely to claimant’s idiopathic and preexisting conditions. See Market Food Distributors, Inc. v. Levenson, 383 So.2d 726 (Fla. 1st DCA 1980), Cheney v. F.E.C. News Distribution Company, 382 So.2d 1291 (Fla. 1st DCA 1980).

Accordingly, the order is affirmed.

MILLS, C. J., and ROBERT P. SMITH, Jr., J., concur.


text:
    SUNSHINE TRUCK PLAZA/CAMP OIL COMPANY, and Commercial Union Insurance Company, Appellants, v. Cora TUCKER and Bituminous Casualty, Appellees.
    No. WW-64.
    District Court of Appeal of Florida, First District.
    March 13, 1981.
    Martin J. Mickler, of Bullock, Sharp & Childs, P. A., Jacksonville, for appellants.
    D. James Beatty, Jr., Jacksonville Beach, for appellee Cora Tucker.
    John C. Taylor, Jr., and Jack W. Bett-man, of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellee Bituminous Cas.
   WENTWORTH, Judge.

This is an appeal of a workers’ compensation order in which the deputy found a causal relationship between claimant’s work and her hand eczema (contact dermatitis) and ordered Commercial Union, the last carrier on the risk to pay temporary total disability compensation for two weeks, certain medical bills, and penalties and interest on the TTD.

Ms. Tucker was employed at Sunshine Truck Plaza from December 1976 through July 1977, and again from January 1978 to April 1979. Around February 1978, she began developing dermatitis of her hands which the doctor testified was caused by-exposure to the detergents used and the heat from the grill. Although claimant required medical treatment for her dermatitis it did not become disabling until December 1978, when she missed two weeks from work. Sunshine Truck Plaza was insured by Bituminous Casualty until February 1, 1979, at which time Commercial Carrier became the insurer.

There is ample evidence showing the causal relationship. We therefore affirm as to Point I. However, we conclude that the deputy erred in his application of the last injurious exposure rule and reverse on Points II and III.

The deputy found that Tucker’s last injurious exposure occurred from February 1 through April 23, 1979, and ordered Commercial Union to pay all benefits accrued up to the date of the hearing as well as future medical care. He found that MMI had not been reached so there is no determination of permanent disability at this time.

Commercial Union argues that the statutory reference to “last injurious exposure” must be interpreted to give effect to the term “injurious” in relation to a disability or need for medical care which is causally related to that exposure, in conjunction with prior exposure. Section 440.151(5), Florida Statutes (1979), states:

Where compensation is payable for an occupational disease, the employer in whose employment the employee was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall alone be liable therefor, without right to contribution from any prior employer or insurance carrier; ...

This language is plainly intended to mean that the liability of the carrier on the risk when the claimant is last exposed to the hazards of the disease is not limited to injury from that exposure alone, but should pay all treatment or disability, temporary or permanent, to which that exposure contributes along with prior exposures. That carrier should be liable for the entire percentage of disability or wage-earning loss, if any, without right of contribution from any prior carriers for prior exposures. The legislature by this section was attempting to avoid the situation where, for example, after long-term exposure, the claimant has an occupational disease resulting in an 80% permanent partial disability. During this long-term exposure, there may have been several carriers on the risk. Rather than attempt to apportion on the basis of the number of years each carrier was on the risk, the legislature has determined that the last carrier should be responsible for all compensation.

We do not think the legislature intended, however, that a carrier could refuse or fail to pay compensation which becomes due while it is on the risk, and then have a subsequent carrier made responsible for compensation the prior carrier should have paid. Although we assume that carriers generally behave in a responsible manner, the possible consequences of such a policy are staggering.

The carrier on the risk when the right to compensation accrues or the medical bills are incurred is liable for all benefits which were then due and owing during the period of its risk. Once the carrier goes off the risk, it is not liable for any future benefits even when they are partially attributable to exposure occurring during its risk period. A subsequent carrier at the time of any injurious exposure last preceding a disability would be liable for any benefits accruing during its period of risk, and would be solely liable regardless of prior contributing exposures.

In this case, Bituminous is liable for the medical bills incurred while it was on the risk and for the two weeks’ temporary total disability in 1978 (for which the 1979 exposure was clearly not the injurious exposure). There is no difficulty in separating out such payments and therefore the difficulties inherent in attempting to apportion the disability per period of exposure is avoided. Bituminous is also liable for the penalties and interest on these benefits. Commercial Union is liable for any medical treatment received after February 1, 1979, and for any future disability attributable to the occupational disease.

Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

MILLS, C. J., and ROBERT P. SMITH, Jr., J., concur.


text:
    Clement DOMINGUIZ, Appellant, v. BROWARD COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.
    No. WW-165.
    District Court of Appeal of Florida, First District.
    March 13, 1981.
    Robert S. Lyons, Fort Lauderdale, for appellant.
    Frank E. Maloney, Jr., Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a workers’ compensation order denying a claim for benefits for permanent partial disability in excess of the rating of llh% permanent partial disability of the body as a whole accepted by the employer/carrier.

Claimant twisted and injured his knees on June 29, 1977, while employed as an inspector at the Broward County Motor Vehicle Inspection Station. Eventually, claimant returned to work for the same employer, although he was placed on special duty whereby he did not have to move around as much as he did in his pre-accident position. As of the date of the hearing on the claim, claimant was working for the same employer and actually earning more than he had earned at the time of the accident.

Several physicians examined claimant and their reports were received in evidence by the deputy commissioner. Dr. Silver-stein was of the opinion that claimant had incurred internal derangement in both knees and as a result had a 10% permanent partial disability of the right lower extremity and a 5% permanent partial disability of the left lower extremity. He also expressed the disability resulting from the knee injuries in terms of disability to the body as a whole, and opined that claimant had a 7%% permanent partial disability to the body as a whole. In the opinion of Dr. Jones, claimant had a 15% permanent partial disability of the right knee, but no disability of the left knee.

The claim was for loss of wage earning capacity in excess of the 7V2% anatomically based on the body as a whole rating which had been accepted by the employer/carrier. Alternatively, a claim was made for an award based on the physician’s scheduled disability ratings. The claim was denied.

As to appellant’s first point on appeal, that the deputy commissioner erred in failing to award benefits for loss of wage earning capacity in excess of the 7V2% anatomic impairment rating, we affirm. It is true that an actual increase in wages is not determinative of the issue of loss of wage earning capacity, Guzman v. Surge Electric, Inc., 381 So.2d 287 (Fla. 1st DCA 1980). In the instant case, however, the deputy commissioner also based his determination on the finding that claimant now works mostly on his feet for eight hours a day, forty hours a week. This finding is supported in the record by competent substantial evidence.

We do find merit in appellant’s second point. He should have been awarded the more favorable of remedies as between the unscheduled and scheduled disability ratings. Farrens Tree Surgeons v. Winkles, 334 So.2d 569 (Fla.1976); C. F. Chemicals, Inc. v. Elwood, IRC Order 2-3712 (February 22,1979). Any combination of scheduled disability ratings chosen by the deputy commissioner would have resulted in appellant receiving more weeks of compensation than he would receive pursuant to the TWX> permanent partial disability of the body as a whole rating. The disability ratings of the left and right knees given by Dr. Silverstein would have yielded a total of thirty weeks of compensation under the schedule, as would Dr. Jones’ rating of the right knee. Another possibility would be an award taking into account both the rating by Dr. Jones of a 15% permanent partial disability of the right knee and the rating by Dr. Silverstein of a 5% permanent partial disability of the left knee. This combination would yield a total of forty weeks of compensation under the schedule. On this point, therefore, we reverse and remand to the deputy commissioner for recomputation of the permanent partial disability benefits due, with the more favorable of remedies, as between scheduled and unscheduled disability ratings, to be awarded.

McCORD and SMITH, JJ„ and LILES, WOODIE A. (Retired) Associate Judge, concur.


author: SMITH, Judge.

text:
    ARDMORE FARMS, INC., Associated Industries of Florida, and Risk Management Services, Inc., Appellants, v. Charlene R. SQUIRES, Appellee.
    No. WW-169.
    District Court of Appeal of Florida, First District.
    March 13, 1981.

      Keith A. Mann apd Joseph E. Smith of Miller & Cooper, Orlando; and Mary Ann Stiles, Tallahassee, for appellants.
    David A. Vukelja of Coble, McKinnon, Rothert, Bohner, Barkin & Godbee, Dayto-na Beach, for appellee.
   SMITH, Judge.

This is an appeal of a workers’ compensation order in which the deputy commissioner found that claimant had not yet reached maximum medical improvement and ordered the employer to pay temporary total disability for as long as she remains temporarily totally disabled. We have determined that the deputy commissioner erred in finding that claimant had not yet reached MMI and reverse.

Claimant suffered a work related back injury on September 11, 1979, when she slipped on wet steps and fell. Dr. Huster saw claimant on several occasions and as of October 15, 1979, he said claimant could return to work with a fifteen pound lifting limitation. On returning to work, claimant was only able to work for two days. After this effort, Dr. Huster saw claimant again, and although he reported he was not sure she would be able to return to any heavy lifting in the future, he was of the opinion she had reached MMI on November 29, 1979, with a 5% permanent partial disability of the body as a whole.

The only record medical opinion as to MMI is that of Dr. Huster. In opposition to that opinion are the statements of claimant that in her estimation her condition has not improved since the accident and she is unable to return to work due to pain in her neck, lower back, arms, and legs. Claimant’s testimony regarding her inability to work may be helpful in establishing that she has suffered a loss of wage earning capacity. However, we view the question whether a claimant has reached MMI, i. e., the point after which lasting improvement is not anticipated and the point at which temporary disability ends and permanent disability begins, as essentially a medical question, the most persuasive evidence of which is expert testimony. A claimant’s testimony may be considered on the question, but it cannot replace the treating physician’s expert opinion as to when temporary disability ends and permanent disability begins. Ocala Jai-Ali, Inc. v. Johnson, IRC Order 2-3783 (April 24,1979); Sunland Training Center v. Hicks, IRC Order 2-3443 (May 25, 1978) cert. denied 368 So.2d 1368 (Fla.1979); see also Beasley & Son, Inc. v. Norris, 379 So.2d 1316 (Fla. 1st DCA 1980).

The question of when a claimant reaches MMI should not be confused with the question of a claimant’s ability to return to work in some capacity, which is a mixed question involving both medical evidence and claimant’s own testimony. On this issue the deputy commissioner may disregard expert opinion. See Crowell v. Messana, 180 So.2d 329 (Fla.1965) and cases cited therein; Plantation Construction Co. v. Ayers, 385 So.2d 1138 (Fla. 1st DCA 1980) citing Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla.1959).

Implicit in the deputy’s finding that claimant was entitled to compensation for temporary total disability was the finding that she was unable to work. See Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981). Although the deputy commissioner was incorrect in finding claimant had not yet reached MMI, the record supports the finding she is unable to work for the period subsequent to MMI, and this opinion should not be read as precluding a finding that claimant is entitled to wage loss benefits subsequent to the date of MMI. In this case, however, the claim for wage loss benefits for the period from January until April, 1980, received by the employer’s servicing agent on May 2, 1980, was not ripe for adjudication at the May 14,1980, hearing which resulted in the order appealed. Therefore, the finding that claimant has not yet reached MMI is set aside and the case is remanded with directions to hold a hearing on the claim for permanent wage loss benefits, including in that determination the period in December, 1979, regarding which some wage loss benefits have been paid.

On cross appeal it is argued that it was error to hold claimant responsible for her own attorney’s fees. It is argued that under Section 440.34(2)(c), Florida Statutes (1979), claimant is entitled to an award of attorney’s fees because she prevailed on the issue of entitlement to additional benefits. Even if the basis for the TTD award had not been reversed, claimant would not be entitled to an award of attorney’s fees under Section 440.34(2)(c), Florida Statutes (1979). That section provides for recovery of attorney’s fees: “[i]n a proceeding where a carrier or employer denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability.” The employer in this case did not deny that an injury occurred for which compensation benefits are payable; in fact, benefits for temporary total disability had been paid from September 14, 1979, to October 14, 1979, and from October 19, 1979, to October 29, 1979, and upon claim being filed on January 31, 1980, some wage loss benefits were paid covering the period from November 29, 1979, to December 31, 1979.

We find no merit in the second point urged on cross appeal regarding the amount of attorney’s fees awarded. The order is affirmed insofar as it relates to attorney’s fees.

REVERSED and REMANDED in part and AFFIRMED in part.

McCORD, J., and LILES, WOODIE, A., Associate Judge (Ret.), concur.

      . The employer/servicing agent had responded to the first claim for wage loss benefits, dated January 31, 1980, and received February 5, 1980, by paying some wage loss benefits for the period from November 29, 1979, to December 31, 1979. At the pre-trial hearing, the employer indicated its intention to defend on the grounds all benefits had been paid and no hir-ther requests for wage loss benefits had been received. A second request for wage loss benefits was received by the servicing agent on May 2, 1980. Since the final hearing was held on May 14, 1980, the employer/servicing agent had not yet had a full opportunity to respond to the claim. See Section 440.20(4), (6), (7), Florida Statutes (1979).


text:
    METROPOLITAN DADE COUNTY, Appellant, v. Peter C. AYDELOTTE, Appellee.
    No. WW-340.
    District Court of Appeal of Florida, First District.
    March 13, 1981.
    Marilyn Strauss, Asst. Cty. Atty., Robert A. Ginsburg, Dade Cty. Atty., Miami, for appellant.
    Alfred D. Bieley, Miami, for appellee.
   PER CURIAM.

The employer appeals a workers’ compensation order which apparently awarded permanent partial disability (PPD) benefits based upon loss of wage earning capacity. We reverse in part and remand for clarification and further findings by the deputy.

Claimant sustained injuries in a compen-sable accident December 16,1978, for which the employer accepted a 10% permanent partial disability rating based upon anatomical impairment and paid PPD benefits for 17V2 weeks. Claimant sought PPD benefits in excess of that accepted by his employer contending he had sustained a loss of wage earning capacity in excess of his anatomical impairment as a result of his injuries. Following a hearing on the claim, the deputy entered an order finding that claimant had sustained an anatomical impairment of 10% of the body as a whole and “wage earning capacity impairment ... for additional 10% of the body” and ordered payment to the claimant of $125.00 per week for 35 weeks.

The employer argues, in part, that the order is facially inadequate to support an award based on loss of wage earning capacity, that the evidence is insufficient to support such an award, and that the deputy only intended an award of 15% permanent partial disability of the body as a whole.

Since we find the order ambiguous and lacking in sufficient findings of fact so as to preclude meaningful review, we reverse and remand. The order lacks a specific finding as to claimant’s percentage of permanent partial disability. We consider as inherently ambiguous the deputy’s finding of a wage earning capacity impairment of an “additional 10% of the body”. If this finding means that claimant suffered a diminution of wage earning capacity of 10%, then claimant was entitled to no further benefits. If, however, this finding means claimant suffered a diminution of wage earning capacity of 20%, then claimant would be entitled to benefits for 70 weeks. § 440.15(3)(u)(2), Fla.Stat. (Supp. 1978). Because we are unable to glean the deputy’s intent from the order, we find it impossible to review the employer’s contentions as to the propriety of the award of benefits based upon loss of wage earning capacity. Accordingly, the order, insofar as it awards compensation benefits to claimant, must be reversed and the cause remanded for reconsideration and clarification in light of this opinion, on the existing record. We also reverse and remand the award of attorney’s fees for reassessment in light of the total amount of benefits obtained for claimant by his attorney.

We have considered the employer’s contention that the deputy erroneously awarded future remedial medical care and medical transportation expenses. Since we find no prejudical error, we affirm that portion of the order. G. & S. Packing Co. v. Driggers, 382 So.2d 446 (Fla. 1st DCA 1980). Similarly, we find no prejudicial error in the admission into evidence, over objection, of claimant’s deposition. See, Ceco Corp. v. Banks, IRC Order 2-2386 (August 22,1973), cert. denied 289 So.2d 7 (Fla.1974); Brock v. McCrory’s, IRC Order 2-2154 (November 3, 1972). Contrast, Kundrick v. Nick Dell Aquila & Associates, IRC Order 2-3409 (April 24, 1978).

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

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

      .Section 440.15(3)(u), Florida Statutes (Supp. 1978) defines disability as “either physical impairment or diminution of wage-earning capacity, whichever is greater.” See generally, Suez Motel v. Brouwer, 388 So.2d 627 (Fla. 1st DCA 1980).

      . Claimant’s diminution of wage earning capacity would not exceed his anatomical impairment, and claimant had already received the compensation benefits due for 10% PPD.

      . The award would, of course, have to offset by the 17‘/2 weeks of benefits previously paid by the employer.


author: BOOTH, Judge. JOANOS, Judge,

text:
    KEN LONES LANDSCAPING and Middlesex Insurance Company, Appellants, v. J. B. TUCKER, Appellee.
    No. WW-360.
    District Court of Appeal of Florida, First District.
    March 13, 1981.

      George Kagan of Miller, Hodges, Kagan, Miami, for appellants.
    Mitchell J. Lipcon of Friedman & Lipcon, Coral Gables, for appellee.
   BOOTH, Judge.

This cause reoccurs following remand to the Deputy for reconsideration of a previous award of five percent permanent partial disability of the hand and 68 weeks of temporary total disability benefits. In Ken Lones Landscaping v. Tucker, 382 So.2d 1368 (Fla. 1st DCA 1980), this court ruled the disability should have been limited to scheduled compensation for disability of the thumb. This cause was also remanded for reconsideration of the award of 68 weeks of temporary total disability benefits, the court stating (382 So.2d at 1371):

Tucker’s own testimony established that he did work “a day here or a day there” during the time period from July 26, 1977, until November 16, 1978. Therefore, the Judge of Industrial Claims’ finding that Tucker was temporarily totally disabled during that period directly conflicts with the evidence. We remand for consideration on this point.

On remand, the Deputy awarded 50 percent permanent partial disability of the right thumb and 67 weeks of temporary total disability benefits.

On remand, the Deputy substantially increased the permanent partial disability award to the claimant from five percent of the right hand to 50 percent of the thumb. We affirm this award as within the province of the Deputy in consideration of the nature of the claimant’s employment, background and the Deputy’s own observation of claimant’s demonstrated disability. The award of temporary total disability benefits is reversed.

The facts showed that the accident occurred on July 3, 1974, when claimant, in the course of his employment as a landscape foreman, stuck the point of a yucca plant under his thumbnail. He missed no time from work for three years following the accident. Then, in July of 1977, surgery under local anesthetic was performed for removal of a squamous cell carcinoma under the thumbnail bed at the site of the old injury. Following a two-day stay in the hospital, claimant reported to work with his former employer, but learned that the business had closed down because his employer had suffered a heart attack. For 16 months thereafter, claimant was without regular employment. During that time, claimant testified he was not “released” by his doctor. He testified: “Everywhere I would go, they couldn’t hire me until the doctor released me. I don’t know if they figured they would have problems with the insurance company or whatever, because I was still under a doctor’s care.” Claimant also testified that, during the period of alleged total disability, he worked with “Doral,” a lawn maintenance company “a day here or a day there if he [Doral] got into a bind.” Claimant himself did not testify that he was unable to work, nor was there medical testimony indicating incapacity to work. There was no evidence of medical treatment being provided during the 16-month period in question; but, based on claimant’s testimony that he had not obtained a release from his doctor until November of 1978, the Deputy determined that date as the termination point of temporary total disability.

Temporary total disability is a period during which a claimant is totally incapacitated from performing work due to a compensable injury. There is no automatic correlation between the date of maximum medical improvement or medical release and the end of temporary total disability. Capacity to return to work is the critical point. Ability to return to work, as opposed to the actual securing of employment, marks the termination of temporary total disability. Florida Statutes § 440.15 provides benefits of sixty-six and two-thirds percent of the employee’s average weekly wage during the period of temporary total disability. Alpert pointing out that “this class of disability remains controlled by the disability concept rather than the so-called wage loss concept” states:

Because the wage loss and physical impairment benefits are both low and uncertain, it is to be expected that there will be significant impetus by many persons in the workers’ compensation system for longer periods of payment of temporary total disability.

In a number of recent decisions, this court has found it necessary to reverse unsubstantiated awards of temporary total disability. Monex Corporation v. Mercado, 379 So.2d 439 (Fla. 1st DCA 1980); Dade County School Board v. Walker, 379 So.2d 1026 (Fla. 1st DCA 1980); Mora v. Max Bauer Meat Packing, Inc., 378 So.2d 119 (Fla. 1st DCA 1980); Cling Electric, Inc. v. Jones, 376 So.2d 481 (Fla. 1st DCA 1979).

The order here, finding claimant’s testimony of work “a day here and a day there” the basis for eliminating one week out of 68 weeks of temporary total disability previously awarded, overlooks the basic requirement of temporary total disability, to-wit: lack of capacity to work. Here, there was no evidence, lay or medical, of lack of capacity to work after July of 1977. On the contrary, claimant demonstrated his ability to work and testified to his availability for employment with Doral when needed.

Accordingly, the order below is affirmed in part and reversed in part, and the cause remanded for such adjustment of the award of attorney’s fees as may be required by the decision herein.

ERVIN, J., concurs.

JOANOS, J., concurs specially with opinion.

JOANOS, Judge,

concurs specially.

I concur in the final result reached by the majority; however, I differ from the majority in the rationale for reversing the deputy’s award of 67 weeks of temporary total disability benefits. It is my view that the award should be reversed because the evidence presented was simply insufficient to meet the standard of competent and substantial evidence required to justify an award of temporary total disability.

I do not adhere to the majority’s apparent reasoning that there must be evidence of a physical or medical incapacity to work to justify the award. Disability is defined in § 440.02(9), Florida Statutes, as the “... incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” The statute requires that the “incapacity” resulted from the injury but does not limit its terms to physical or medical incapacity. In this case, if the evidence had sufficiently shown that despite an adequate job search, the claimant could not locate employment because employers would not hire him while he was still under a physician’s care I would have favored an affirmance of the deputy’s award. The claimant’s self-serving, unsupported vague statement to that effect, however, just did not meet the standard of proof required.

      . Alpert, Florida Workmen's Compensation, § 11-3.

      . Id. at 1979 Supp. at 23-24.


text:
    TALLAHASSEE COCA COLA BOTTLING COMPANY and Hartford Insurance Company, Appellants, v. Johnny L. PARRAMORE, Appellee.
    No. WW-472.
    District Court of Appeal of Florida, First District.
    March 13, 1981.
    H. George Kagan of Miller, Hodges & Kagan, Miami and B. Sternstein of McFar-lain, Bobo, Sternstein, Wiley & Cassedy, Tallahassee, for appellants.
    James N. McConnaughhay of McCon-naughhay & Roland, Tallahassee, for appel-lee.
   THOMPSON, Judge.

The appellants challenge a workers’ compensation Order, contending that the Deputy Commissioner (“the Deputy”) erred in finding that the claimant was temporarily totally disabled. We agree and reverse.

The claimant was injured in a work related accident in June 1977. He was examined by an orthopedic surgeon who diagnosed a possible back strain and advised him to stay off work for 2 or 3 days. Two weeks later he returned to work. In April 1978, ten months after the accident, the claimant was discharged from his employment due to repeated misconduct. From April 1978 to January 1980, the claimant did not work at a regular job and has not looked for work since he was discharged in April 1978. The first orthopedic surgeon saw the claimant again in April 1978 and in February 1979. No evidence of a herniated disc was found on the first or any of these subsequent examinations. On September 12, 1979, the claimant was examined by a second orthopedic surgeon who reported that he found no evidence of any organic back disease as a result of claimant’s injury and that the only objective finding was a limp. The doctor questioned whether it was a true limp or a feigned limp. On January 24, 1980, the claimant was examined by a third orthopedic surgeon. The doctor referred the claimant to a physical therapy service, but the claimant failed to follow this referral. According to the doctor, as of January 24,1980, maximum medical improvement (“MMI”) had not been reached. The doctor scheduled an appointment to examine the claimant after one month of therapy, but the claimant did not keep this appointment.

The Deputy subsequently found that the claimant was temporarily totally disabled from January 24, 1980. The Deputy determined that since that date, the claimant “has not been able to work because of pain.” However, there was no medical evidence that the claimant was unable to work. In fact, the medical evidence prior to the January 1980 examination affirmatively showed that the doctors could find no medical reason why the claimant could not work, and there was no reason given by the doctors that would excuse the claimant’s failure to make an adequate work search or effort to return to work.

In Walter Glades Condominium v. Morris, 393 So.2d 664, 665 (Fla. 1st DCA 1981), this court noted that “temporary total disability is the healing period during which the claimant is totally disabled and unable to work,” due to an injury. In this instance, the Deputy found that the claimant was temporarily totally disabled from January 24, 1980. However, there was no medical evidence that since that date he was unable to work. As such, he was required to make a conscientious effort to return to work before he could establish that he was in fact unable to work. Id.

As noted above, the claimant has not looked for work since April 1978. Nor does the record indicate that he has attempted to do any type of work since January 24,1980. In fact, at the April 1980 hearing, the claimant testified that he spends his time staying around the house. Sometimes he washes “a dish,” while at other times his friends will stop by and he will go fishing with them. The claimant testified that while he wants to go back to work, he has not attempted to do so, apparently because his back bothers him significantly. However, in the absence of medical evidence showing that he was unable to work, a claimant cannot establish temporary total disability merely by testifying that he did not attempt to return to work because he felt unable to, or because pain precluded him from trying. See Morris, 393 So.2d at 665.

The claimant has not made a conscientious effort to return to work and thus, under the facts herein, the Deputy erred in awarding him temporary total disability benefits. Moreover, this error is not negated by the fact that one doctor testified that MMI had not been reached, since such testimony “does not constitute a basis for an award of temporary total disability benefits.” Hercules Fence Distrib. v. Wooten, IRC Order 2-3450 (June 2, 1978). Accordingly, the Deputy’s Order is reversed.

SHIVERS and SHAW, JJ., concur.

       We also note that it is highly questionable that this doctor’s testimony constitutes competent substantial evidence, since his testimony was based on erroneous assumptions and “facts” unsupported by the evidence. See D’Avila, Inc. v. Mesa, 381 So.2d 1172, 1173 (Fla. 1st DCA 1980); Arkin Constr. Co. v. Simpkins, 99 So.2d 557, 561 (Fla.1957).


text:
    KENT ELECTRIC COMPANY, a corporation, Appellant, v. JACKSONVILLE ELECTRIC AUTHORITY, a corporation, Appellee.
    No. XX-10.
    District Court of Appeal of Florida, First District.
    March 13, 1981.
    Frederick B. Tygart, Jacksonville, for appellant.
    Dawson A. McQuaig, William Lee Allen, and David C. Carter, Jacksonville, for ap-pellee.
   PER CURIAM.

Appellant appeals from the trial court’s dismissal of appellant’s second amended complaint with prejudice. In that complaint, appellant alleged that appellant and appellee had entered into a written contract whereby appellant agreed to perform overhead electrical work for appellee and that appellee agreed to provide appellant with $1,500,000 of overhead electrical work during the contract period; that ap-pellee had breached the contract by providing only approximately $90,000 worth of overhead electrical work pursuant to the contract. The contract, which was attached to the second amended complaint, provides that appellant would do work required for the total sum “not to exceed ONE MILLION FIVE HUNDRED THOUSAND and no/100 DOLLARS.” The contract language does not support appellant’s assertion that appellee had agreed to provide appellant $1,500,000 worth of work, but only shows that appellant had contracted with appellee to perform work “not to exceed” that amount. Obviously, $90,000 worth of work does not exceed $1,500,000.

Inconsistency between the general allegations of material facts in a complaint and specific facts revealed by the exhibit attached to it has the effect of neutralizing each allegation, rendering the pleading objectionable. Padgett v. First Federal Savings & Loan Association, 378 So.2d 58 (Fla. 1st DCA 1979); and Harry Pepper and Associates, Inc. v. Lasseter, 247 So.2d 736 (Fla.3d DCA 1971). See Rule 1.130(b), Florida Rules of Civil Procedure.

The trial court did not err in dismissing the second amended complaint, but we consider that appellant should be given one more opportunity to amend so that the ambiguity between the exhibit and the complaint could be cleared up, if possible.

Affirmed in part and reversed in part with directions to allow appellant to file a third amended complaint.

McCORD and LARRY G. SMITH, JJ., and WOODIE A. LILES (Retired), Associate Judge, concur.


text:
    Joseph McCANTS, Appellant, v. STATE of Florida, Appellee.
    No. XX-94.
    District Court of Appeal of Florida, First District.
    March 13, 1981.
    Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

McCants appeals the judgment and sentence rendered below, finding him guilty of resisting arrest with violence, alleging the trial court failed to order a competency hearing. We agree with appellant and reverse.

During appellant’s trial, he appeared as a witness in his own behalf. A thorough review of the record on appeal shows McCants as incoherent and irrational throughout his trial. When asked to swear on the Bible, appellant responded: “That’s the Gideon Bible? They were raging battle and said with ya’ll effect and clapped with their hands and left handed war, I don’t remember and get somebody else.”

When asked to give his rendition of the incident resulting in his arrest, appellant responded:

I said, “Boy, you are something else.” I said, “you mess around, I don’t know who she was. I told you Friday night who she was, the cashier or the proprietor or whoever was running the place, you know.” And any way she had a black, she was black and blonde. I just look at her, you know. So, he said something. I said, “Yeah, Bill.” (Defendant loudly laughing) “I heard you ain’t as good as you use to be.” I guess I must have made him angry. I said, “Man, you ain’t, you know the best way.” (Defendant, loudly laughing and making mannerisms with his hands) But, that was over with, you know. He had been over there quite a while and as far as speaking English dialect and breaking down to the time the English about to go to war. Okay, the flag made mad like that and red like our flag. We still like America. You know we kicked each other around and came to. So, they were coming up to fight each other, you know, and they were saying— (Defendant singing) You know, they stopped. They said (Defendant singing). You know, they and you know they were getting ready to get down and taking off and say, “Mine is mine, and yours is mine.” Why they come in tonight. From whence came this. Okay, like trolls they were talking rods and nops and bobs and elbows and shooting — (Defendant talking incoherently) — and pass them over and in the side. (Defendant pounding on table top) And be over in an hour. So, Sagen said, “We are all religious, let’s return home.” And black queen Katherine said our queen is Cumberlaine and chamberlight. There is a place that says Cámelot came in the castle and that was someone loved to hear, you know, and truly tried right pors and poet, everything doesn’t rhyme. I was thinking about a friend and no matter where he went he always be thinking of me.

His other testimony was equally nonsensical. The record reflects that throughout appellant’s trial he laughed, made obscene gestures, sang, tried to leave the courtroom, jumped up from the witness stand, and even tried to take the top off the witness stand.

The jury returned a guilty verdict, but recommended appellant receive psychiatric help, to which the trial court agreed.

In Lane v. State, 388 So.2d 1022 (Fla.1980), the Supreme Court, in discussing competency to stand trial, stated: “[T]he law is now clear that the trial court has the responsibility to conduct a hearing for competency to stand trial whenever it reasonably appears necessary, whether requested or not, to ensure that a defendant meets the standard of competency set forth in Dusky.”

The Florida Supreme Court, in Lane, supra, cited Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), and agreed that even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competency to stand trial. 420 U.S. at 180-181, 95 S.Ct. at 908.

This court recognizes the Lane holding that intentional action by a defendant does not avoid or eliminate the necessity of applying the test of whether a defendant has sufficient present ability to assist counsel with his defense and to understand the proceedings against him. However, after a thorough examination of the record in this case, it is clear that there is considerable doubt concerning appellant’s present competency at the time of trial.

Accordingly, we vacate the judgment below and remand for a new trial at which time the trial court shall give appellant a pre-trial hearing to determine mental competency.

SHIVERS, SHAW and THOMPSON, JJ., concur.

      . Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).


author: DANIEL S. PEARSON, Judge.

text:
    Andrew THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1037.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We affirm Thomas’ conviction. The trial court correctly denied Thomas’ motion to suppress the fruits of a burglary found during a search of Thomas’ person.

The arresting officers believed that the circumstances, at most, justified an arrest for loitering and prowling and, incident to an arrest on that charge, conducted a search of Thomas. Even if, as Thomas suggests, an arrest on that charge was unlawful because the officers immediately upon stopping Thomas gave him Miranda warnings, which arguably inhibited him from dispelling the officers’ concern, see Section 856.021, Florida Statutes (1977); State v. Ecker, 311 So.2d 104 (Fla.), cert. denied sub nom., Bell v. Florida, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975), there existed, notwithstanding the officers’ mistaken and contrary belief, probable cause to arrest Thomas on a charge of burglary. See, e. g., Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Where, by objective standards, probable cause to arrest for a certain offense exists, the validity of an arrest does not turn on the fact that an arrest was effected on another charge. Chaney v. State, 237 So.2d 281 (Fla. 4th DCA 1970), cert. denied, 403 U.S. 904, 91 S.Ct. 2205, 29 L.Ed.2d 680 (1971); United States v. Ullrich, 580 F.2d 765 (5th Cir. 1978). Moreover, given the existence of probable cause to arrest Thomas for the offense of burglary, the validity of the search of Thomas is unaffected by the fact that the search preceded his formal arrest on that charge. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Dixon v. State, 343 So.2d 1345, 1347 n. 3 (Fla. 2d DCA 1977).

AFFIRMED.


text:
    Angelica FERNANDEZ, as Personal Representative of the Estate of Adalberto Fernandez, Deceased, Appellant, v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee.
    No. 79-1865.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellant.
    Lane, Mitchell & Harris and Byron B. Mathews, Jr., and David R. Canning, Miami, for appellee.
    Before HUBBART, C. J„ and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Prudential Insurance Co. of America v. Bellar, 391 So.2d 737 (Fla. 4th DCA 1980); see Roskell v. Prudential Insurance Co. of America, 529 F.2d 1 (10th Cir. 1976); Wilson v. Prudential Insurance Co. of America, 528 P.2d 1135 (Okl.Ct.App.1974).


text:
    Luis Alberto OLIVO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2288.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Bennett H. Brummer, Public Defender and Joseph C. Segor, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Antone v. State, 382 So.2d 1205 (Fla.1980).


text:
    Peter B. SOBEL and Maxine Sobel, Appellants, v. MIAMI DAILY NEWS, INC., a Florida Corporation, d/b/a The Miami News and Bill Douthat, Appellees.
    No. 80-212.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Peter B. Sobel, in pro. per.
    Joseph P. Averill, Miami, for appellees.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975).


text:
    T.E.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-665.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Bennett H. Brummer, Public Defender and Gisela Cardonne, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and NESBITT, JJ.
   PER CURIAM.

Affirmed. Doerr v. State, 383 So.2d 905 (Fla.1980); K.P. v. State, 327 So.2d 820 (Fla. 1st DCA), cert. discharged sub nom. Porter v. State, 340 So.2d 1163 (Fla.1976); § 39.01(8), Fla.Stat. (1979).


text:
    SUN BANK OF MIAMI, Appellant, v. E. C. ERNST, INC., Appellee.
    No. 80-743.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.

      Fowler, White, Burnett, Hurley, Banick & Strickroot and Harold L. Ward, Miami, for appellant.
    Rosenberg, Rosenberg, Reisman & Glass and James E. Glass, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The final judgment under review is affirmed on the basis that appellant’s right of set-off was negatived by: (a) the non-mutuality of claims, Everglade Cypress Co. v. Tunnicliffe, 107 Fla. 675, 148 So. 192 (1933); (b) the characterization of the account as an account for a special purpose, Tunnicliffe v. Sears, 107 Fla. 669, 148 So. 197 (1932); Coyle v. Pan American Bank of Miami, 377 So.2d 213 (Fla. 3d DCA 1979); Bank of West Orange v. Associates Discount Corp., 197 So.2d 858 (Fla. 4th DCA), cert. denied, 201 So.2d 556 (Fla.1967); and (c) the knowl-. edge of appellant that the disputed funds were deposited by appellee rather than appellant’s debtor, 4715 Realty Corp. v. Central Bank and Trust Co., 301 So.2d 792 (Fla. 3d DCA 1974); Central Bank and Trust Co. v. Shipman, 127 So.2d 706 (Fla. 3d DCA 1961).

Affirmed.


text:
    The STATE of Florida, Appellant, v. Anthony Walter CAPPETTA, Appellee.
    No. 80-1030.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.

      Janet Reno, State Atty., and Theda R. James, Asst. State Atty., for appellant.
    A. John Goshgarian, Miami, for appellee.
    Before HUBBART, C. J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The order under review which dismisses the state’s new information filed subsequent to, and in purported compliance with, our decision reversing the defendant’s prior conviction in this cause, Cappetta v. State, 380 So.2d 1303 (Fla. 3d DCA 1980), is reversed and the cause is remanded to the trial court for further proceedings upon a holding that: (a) the said information was not barred by double jeopardy because the defendant’s prior successful appeal in this cause waived any subsequent claim of double jeopardy against the filing of the new information herein, Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); State ex rel. Cacciatore v. Drumbright, 116 Fla. 496, 156 So. 721, 725 (1934); and (b) the said information was not barred by a speedy trial claim as the state was not obliged to obtain an extension of the speedy trial limits set by Fla.R.Crim.P. 3.191, pending the defendant’s prior appeal in this cause, and said time limits were in no way running during the pendency of said appeal. See Fla.R.Crim.P. 3.191(d)(2), (g).

Reversed and remanded.


text:
    Percy PAYNE, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1240.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Percy Payne, in pro. per.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The judgment of conviction and sentence under review is reversed and the cause is remanded to the trial court with directions to award the defendant Percy Payne a new trial upon a holding that: (a) the trial court committed reversible error when, in response to a jury request made during the jury’s deliberations, the trial court sent to the jury, over a defense objection, the written standard jury instruction on premeditation without also sending the entire written instructions to the jury as requested by the defense, Morgan v. State, 377 So.2d 212 (Fla. 3d DCA 1979); Faulk v. State, 296 So.2d 614 (Fla. 1st DCA 1974); Fla.R. Crim.P. 3.400(c); (b) the balance of the defendant’s points on appeal do not present reversible error.

Reversed and remanded for a new trial.


text:
    James MERRILL and Martha Merrill, his wife, Appellants, v. Joseph G. PACKARD, Randle Eastern Ambulance Service, Inc., et al., Appellees.
    No. 80-1303.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Deutsch & Blumberg and Edward R. Blumberg, Miami, for appellants.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Claudia B. Greenberg, Miami, for appellees.
    Before HENDRY, DANIEL S. PEARSON and FERGUSON, JJ.
   DANIEL S. PEARSON, Judge.

We affirm the summary judgment which found that an Ambulance Attendants Errors and Omissions Policy issued by Jefferson Insurance Company, insuring Randle Eastern Ambulance Service and its employees, did not cover injuries suffered by Mr. Merrill arising from a collision between a Randle Eastern ambulance in which Merrill was a passenger and another vehicle. We hold that (1) the errors and omissions policy obtained by Randle Eastern, pursuant to a contract with Dade County, to cover professional malpractice of its ambulance attendants (as distinct from a separate automobile liability insurance policy obtained from another insurer to cover negligent operation of Randle Eastern’s vehicles and which policy, in fact, covered the accident in which Mr. Merrill was injured) did not, due to a clause excluding coverage for bodily injury arising out of the operation of any automobile operated by Randle Eastern, provide coverage to the Merrills; and (2) an ambulance, being, inter alia, a self-propelled wheeled vehicle designed for the transportation of persons on streets and roadways, see Loftus v. Pennsylvania Life Insurance Company, 314 So.2d 159 (Fla. 4th DCA 1975); Seaford v. Nationwide Mutual Insur ance Company, 253 N.C. 719, 117 S.E.2d 733 (1961); Annot., Accident Insurance “Automobile” — “Car,”38 A.L.R.2d 867 (1954); see also Annot., Uninsured Motorist Provision— “Automobile,” 65 A.L.R.3d 851 (1975), unambiguously falls within the generic and ordinary meaning of the term automobile absent record evidence that the ambulance was designed to be used, and used, other than as an automobile, compare Martin v. Nationwide Mutual Fire Insurance Company, 235 So.2d 14 (Fla. 2d DCA 1970) (a “jeep,” hand-built by the insured for use in roaming the pasture lands of a farm, but without the capacity to be legally and safely driven on public highways, is not an automobile) or absent other policy definitions which mandate a contrary conclusion, compare Hodges v. National Union Indemnity Company, 249 So.2d 679 (Fla.1971) (a Chevrolet El Camino, indisputably used to haul business-related materials, as “truck type not used in business or for commercial purposes”).

Affirmed.


text:
    In re ESTATE of John Robert LOMAX, Sr. John Robert LOMAX, Jr., Appellant, v. Laura Lomax RAYTHWICK, individually and as personal representative of the Estate of John Robert Lomax, Sr., deceased, Tressa Ann Hipple, Robert Allen Lomax, Debra Lynn Best, and Elinor Wilson Lomax, Appellees.
    No. 80-1360.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Swope, Stobs & Koltnow and Donald W. Stobs, Jr., Miami Shores, for appellant.
    Bergman & Jacobs and Mark A. Jacobs, North Miami Beach, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The order under review denying appellant’s petition for revocation of probate, which asserted that his father’s will was procured by undue influence, is affirmed upon a holding that even if, arguendo, Laura Raythwick, the decedent’s sister and a person active in procuring the contested will, be deemed to have occupied a confidential relationship with the decedent and, by virtue of a devise in her favor of a one-sixth share of her brother’s estate, be deemed to be a substantial beneficiary, thereby raising a presumption of undue influence, there is ample evidence to support the trial court’s finding that (1) there was a reasonable explanation for Laura’s active role so as to satisfy her burden of coming forward to rebut this presumption, and (2) it does not otherwise clearly appear from the record before us that the decedent’s will was procured by undue influence. See In re Estate of Carpenter, 253 So.2d 697 (Fla.1971).

Affirmed.

      . Appellant initially challenged the will on the additional ground that his father lacked testamentary capacity, but has abandoned that ground on appeal.


text:
    The STATE of Florida, Appellant, v. Dwight WILLIAMS, Appellee.
    No. 80-1402.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Janet Reno, State Atty., and Stephen V. Rosin, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender, and Michael Zelman, Asst. Public Defender, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The trial court, finding that the pistol was not concealed within the meaning of Section 790.001(2), Florida Statutes (1979), granted Williams’ motion to dismiss filed under Florida Rule of Criminal Procedure 3.190(c)(4). We reverse the order of dismissal and remand the cause with directions to reinstate the information.

The State’s sworn traverse specifically denied the averments in Williams’ motion that the “pistol was sticking out from under the front seat” and “was visible to the officer,” and affirmatively set forth that “after the defendant reached under the front of the driver’s seat and pushed an unknown object back, [t]he officer then observed a .22 caliber pistol come from under the back of the driver’s seat and come into view at the rear .... ” (emphasis supplied). This traverse manifestly established a pri-ma facie case of guilt against the defendant. State v. Riocabo, 372 So.2d 126 (Fla. 3d DCA 1979); State v. Sellers, 281 So.2d 397 (Fla. 2d DCA 1973). See also Oliver v. State, 393 So.2d 1191 (Fla. 3d DCA 1981); Compare Powell v. State, 369 So.2d 108 (Fla. 1st DCA 1979); Christian v. State, 303 So.2d 405 (Fla. 3d DCA 1974); State v. Day, 301 So.2d 469 (Fla. 1st DCA 1974) (in all of which the weapon was immediately visible). Under these circumstances, denial of the motion to dismiss was mandated. Fla.R. Crim.P. 3.190(d); State v. Merritt, 394 So.2d 531 (Fla. 3d DCA 1981); State v. Whitehead, 353 So.2d 900 (Fla. 3d DCA 1977).

Reversed.

      . This section defines a concealed firearm as “any firearm ... when the same is carried on or about a person in such a manner as to conceal said firearm from the ordinary sight of another person.”

      . It is axiomatic that in every prosecution for carrying a concealed firearm there has come a point in time when the firearm became visible. The distinction in the cases lies in whether the weapon would be immediately visible to ordinary sight (not concealed) or later becomes disclosed (concealed). In the present case, one can readily infer from the confluence of the statements in the traverse that the object was at first “unknown,” and that the officer saw it “come from under” and “come into view,” that the firearm was not initially visible to the officer by the use of ordinary sight. In a motion under Rule 3.190(c)(4), all inferences are resolved against the defendant and in favor of the State. State v. Upton, 392 So.2d 1013 (Fla. 5th DCA 1981).


text:
    The STATE of Florida, Appellant, v. Vivian Caridad HERNANDEZ-PIEDRA, Appellee.
    No. 80-1608.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Janet Reno, State Atty. and Stephen V. Rosin, Asst. State Atty. and Russell R. Kil-linger (Legal Intern), for appellant.
    Frank A. Rubino, Miami, for appellee.
    Before HENDRY, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

We reverse the dismissal of the state’s case (for failure of state’s witnesses to appear for deposition) on the authority of our decision on the identical point. Gerstein v. Durant, 348 So.2d 405 (Fla. 3d DCA 1977).

Reversed.


text:
    Antonio GONZALEZ and Sklar Construction, Inc., Appellants, v. Sam ROSENBLATT, Appellee.
    Nos. 80-1747, 80-1768.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellants.

      Ferrell & Ferrell, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. McCabe v. Watson, 225 So.2d 346 (Fla. 3d DCA 1969), cert. disch., 232 So.2d 739 (Fla.1970).


text:
    Thomas Albert PANNIER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-407.
    District Court of Appeal of Florida, Third District.
    March 17, 1981.
    Thomas Albert Pannier, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. See, Pannier v. State, 384 So.2d 44 (Fla. 3d DCA 1980).

Affirmed.


author: ORFINGER, Judge.

text:
    James Morgan TINDALL, Appellant, v. STATE of Florida, Appellee.
    No. 80-33.
    District Court of Appeal of Florida, Fifth District.
    March 18, 1981.

      Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

Appellant, convicted by a jury of grand theft, contends that the trial court erred in overruling his objection to certain testimony and denying his motion for mistrial. We agree and reverse.

A police officer testified for the State that he interviewed appellant shortly after his arrest, and he was asked:

Q: Did you read him his rights?
A: Yes, sir.
Q: Did he talk to you at all?
A: Oh yes, yes.
Q: Did he make any statements to you?
A: No, sir. Nothing as far as admissions.

Appellant objected and moved for mistrial on the grounds that this was an impermissible comment on his right to remain silent.

Any testimony concerning appellant’s silence when detained by the police is constitutionally prohibited, and constitutes reversible error without regard to its prejudicial effect. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L. R.3d 974 (1966). The objection was proper and the motion for mistrial should have been granted. Clark v. State, 363 So.2d 331 (Fla.1978); Washington v. State, 388 So.2d 1042 (Fla. 5th DCA 1980); Harris v. State, 381 So.2d 260 (Fla. 5th DCA 1980).

The State contends that the context of this testimony indicates that appellant did make certain statements, although not concerning admissions, so the officer’s testimony is not improper. The fact that appellant might have talked to the officer about some irrelevant matter such as the weather does not bootstrap the impermissible testimony to the level of propriety. In the context of the testimony here, the comment could serve no purpose other than to highlight the defendant’s silence about the crime for which he was charged.

The judgment of conviction is reversed and the cause is remanded for a new trial.

REVERSED and REMANDED.

FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.

      . The State made no attempt to introduce evidence of the conversation, so the record does not reflect what was said. We must therefore conclude that it was an irrelevant conversation since the burden of proof is on the State. We must also assume that the prosecutor knows in advance what the answer to this question will be; when it is thus answered in the negative and nothing else follows, it seems unlikely that it was asked for any purpose other than to highlight appellant’s silence.

      . Similar comments are characterized as improper in: Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Pinkney v. State, 351 So.2d 1047 (Fla. 4th DCA 1977); Eck v. State, 354 So.2d 459 (Fla. 4th DCA 1978); Knight v. State, 374 So.2d 1065 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 642 (1980).