author: WENTWORTH, Judge.

text:
    ALLSTATE INSURANCE CO., Appellant, v. Deborah Jane NABINGER, Mainsail Motel, Ronald B. and Jane Moussette, and I. R. Naran, Appellees.
    No. TT-377.
    District Court of Appeal of Florida, First District.
    March 5, 1981.
    Paul Smalbein of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, Joan H. Bickerstaff, Co-Counsel, Cocoa Beach, for appellant.
    Sylvan A. Wells, of Wells & Wells, P. A., Daytona Beach, for appellee/claimant Deborah Jane Nabinger.
    Frank Marriott, Jr., of Gosney, Cameron, Parsons & Marriott, P. A., Daytona Beach, for Mainsail Motel, I. R. Naran, Ronald B. and Jane Moussette, appellees.
   WENTWORTH, Judge.

This is an appeal from a workers’ compensation order directing appellant Allstate to pay temporary total disability, future medical and compensation benefits under its policy for employer Moussette. We reverse and remand because Moussette was not claimant’s employer at the time of the accident, and the order contains no findings or conclusions sufficient to apply estoppel or any other basis for liability.

The claim arose from the following chronology of events and specified only “Mainsail Motel” as employer:

1/1979 Claimant Deborah Jane Nabinger was hired as maid at Mainsail Motel, owned by Moussette.
1/17/79 Moussette sold Mainsail Motel to I. R. Naran. Moussette and Naran met with Allstate’s agent re transfer of insurance policies to Naran.
Moussette orally cancelled his workers’ compensation insurance, effective at closing on 1/17/79.
2/2/79 Claimant Nabinger slipped and fell on a stairway.
2/23/79 Claimant filed for workers’ compensation naming Mainsail Motel as her employer.
3/29/79 Allstate advised Moussette that their workers’ compensation policy was nontransferrable and Allstate would not honor any claims after date of sale.

Subsequently a workers’ compensation policy was issued by Allstate to Naran, but it was cancelled when the carrier discovered that Naran had failed to divulge the Na-binger claim on his application.

The deputy commissioner found that because Allstate failed to cancel the Mous-settes’ workers’ compensation insurance in accordance with § 440.42(2), Florida Statutes, the policy was in effect and provided coverage to Naran’s employee, Nabinger. Nanan filed a separate civil action for declaratory relief, breach of contract, and negligence against Allstate, still pending when the compensation order was entered.

Appellant Allstate presents the following issue:

WHETHER THE DEPUTY COMMISSIONER ERRED IN FINDING APPELLANT LIABLE FOR THE INDUSTRIAL INJURY OF APPELLEE NABINGER, WHEN THE CLAIMANT WAS NO LONGER AN EMPLOYEE OF ALLSTATE’S INSUREDS ON THE DATE OF HER ACCIDENT.

The order finds that on the date of accident the claimant was “in the employ of the employer herein, specifically, the Mainsail Motel which was, at the time, owned by Mr. Ishwar Naran.” (e. s.) On the issue of coverage the order recites:

Mr. Moussette stated that he was present during a conversation between himself, Mr. Manning, his insurance agent and an agent of ALLSTATE, and Mr. Naran immediately following the sale of the motel at which time he recalled Mr. Naran advising Mr. Manning that he wanted the existing insurance coverage with ALLSTATE continued during his ownership of the motel, but that a question was presented concerning the rating structure for workmen’s compensation insurance and that Mr. Manning indicated he would ' advise Mr. Naran subsequently concerning his question regarding the rates. Mr. Moussette indicated that it was his clear understanding that the insurance, including the workmen’s compensation insurance, would be continued by ALLSTATE INSURANCE COMPANY. Mr. Naran testified that immediately following the sale but prior to the alleged injury to the claimant, he conversed with Russell Manning as agent for the ALLSTATE INSURANCE COMPANY and was advised that the insurance in force and effect at the time inclusive of the workmen’s compensation insurance would be continued by ALLSTATE. Mr. Naran indicated that he did have a question concerning the rating policy of ALLSTATE and Mr. Manning advised him that he would answer the question, however, it was clearly Mr. Naran’s understanding that the workmen’s compensation coverage was to be provided by ALLSTATE INSURANCE COMPANY. Mr. Manning testified that in a conversation at the motel while Mr. Moussette was present along with Mr. Naran, he did, as agent for the ALLSTATE INSURANCE COMPANY, advise Mr. Naran that the general liability coverage would be provided by ALLSTATE, however, it was his recollection that Mr. Naran had specifically indicated to him that he did not wish to have ALLSTATE provide workmen’s compensation insurance.

The order contains no resolution of the recited conflicts in testimony but finds that Allstate’s policy provided coverage to claimant as Naran’s employee on 2/2/79, based solely on the fact that the policy “was not cancelled in accordance with ... F.S. 440.-42(2),” which states “No ... policy ... shall expire or be cancelled until ... 30 days have elapsed after a notice of cancellation” in accordance with prescribed rules.

Because the evidence established and the order recognized that claimant was not the Moussettes’ employee on the date of the accident, we are unable to agree that Allstate’s failure to cancel its contract with Moussette would as a matter of law provide coverage to claimant while working for another employer, i. e., Naran. We are referred to no such previous Florida construction of the statute, which has instead been invoked to continue coverage for employees of the former policyholder. Peninsular Fire Insurance v. King, 282 So.2d 672 (Fla. 1st DCA 1973). Failure the statutory notice might, however, be pertinent to a determination of estoppel based on consideration of all pertinent facts bearing on that doctrine. See Appleman, Insurance Law and Practice (Berdal ed.), § 4659, p. 410-412, note 25; Couch on Insurance 2d § 67.88.

We do not, because of the posture of the case on appeal, determine whether responsibility for the claim can be placed on Allstate on other grounds. The parties have presented no alternative argument for af-firmance of the award, and in view of the complex and conflicting evidence above noted we reverse and remand for such further proceedings, which may include additional evidence, as are consistent with our opinion on the point appealed.

ERVIN and SHAW, JJ., concur.


source: Caselaw Access Project

author: JOANOS, Judge.

license: Public Domain

text:
    MONTGOMERY WARD & CO., Appellant, v. Silvio PROVENZANO, Appellee.
    No. UU-68.
    District Court of Appeal of Florida, First District.
    March 5, 1981.
    Thomas M. Burke of Rumberger, Kirk & Caldwell, Orlando, for appellant.
    William F. Poole, IV of Poole & Heller, Orlando, for appellee.
   JOANOS, Judge.

This workers’ compensation appeal involves a lengthy procedural history which included two hearings on different aspects of the claimant’s injuries. The appellant/employer seeks review of the order which resulted from the latest hearing and argues that the deputy commissioner erred in three respects: (1) The claimant should not have been awarded additional medical treatment for orthopedic problems in light of the claimant’s falsification of his employment application by not disclosing a previous psychiatric condition; (2) An award of temporary total disability (“TTD”) was in error because no claim for such benefits was pending; and (3) Costs were incorrectly awarded to claimant without evidence of costs being submitted. We agree with the appellant that reversal is required on the last two points, but affirm the order as to the first point.

The history of this case began when the claimant broke his left leg in a work-related accident in 1975. The employer voluntarily paid 10% permanent partial disability (“PPD”) benefits, but in March of 1977, the claimant filed a claim seeking PPD benefits in excess of 10% and additional medical care. At the hearing on this claim, the claimant argued that he had developed psychiatric problems which were causally related to the accident. The deputy commissioner agreed and awarded temporary total disability (“TTD”) benefits based upon claimant’s psychiatric disability. This order was reversed by the IRC on the ground that the claimant had falsified his employment application by failing to reveal a previous psychiatric condition which was causally related to the psychiatric problems that resulted from claimant’s accident. IRC Order 2-3533 (1978). In July of 1979 the Florida Supreme Court denied certiorari. Provenzano v. Montgomery Ward & Co., Fla.App., 374 So.2d 100 (1979). About two weeks later, the employer filed a notice to controvert the claimant’s right to benefits of any kind, including the 10% PPD benefits previously accepted by the employer. A hearing was held on October 17, 1979 where the claimant requested that he be awarded additional medical care for his orthopedic problems as well as TTD benefits. The employer defended this claim on the grounds that no claim for TTD benefits was pending and that the claim was barred by the claimant’s falsified employment application.

The deputy correctly rejected the argument that the claimant’s failure to disclose a previous psychiatric condition on his employment application bars his claim for medical treatment of an unrelated orthopedic condition. The employer has urged that the rationale of Martin Co. v. Carpenter, 132 So.2d 400 (Fla. 1961) should be extended to prevent an employee from recovering workers’ compensation benefits without regard to the existence of a causal relationship between the injury and the false representations. This position is not supportable by Florida law. Martin and the cases under it have specifically required a finding of causal relationship. See Blaine v. Paks Food Store, 382 So.2d 132 (Fla. 1st DCA 1980); Georgetown Manor Furniture v. Smith, 281 So.2d 18 (Fla.1973). In this case there was no question that the claimant’s leg and hip injuries were not related to his prior psychiatric problem.

With regard to the employer’s other defense, the transcript of the October 17th hearing clearly shows that the deputy awarded TTD when no claim for TTD benefits was ever filed by the claimant. The claimant’s first request for TTD benefits was at the hearing. When the employer argued that no claim for TTD was pending, the claimant’s attorney admitted that he had not filed such a claim but would do so within a week and suggested that the hearing proceed on the claim for medical benefits only. Speaking to the employer’s counsel, the deputy remarked, “I think Fred [claimant’s attorney] says that he’s not going ahead with temporary total.” Claimant’s attorney then stated, “I don’t think I can to be very honest.” To further clarify the status of the TTD claim, the employer’s attorney told the deputy that he thought no evidence should be heard relating to TTD. The deputy responded, “We won’t.” The hearing then proceeded to determine the claimant’s entitlement to additional medical benefits.

After the hearing, the deputy awarded both TTD and medical benefits. In his order the deputy reasoned that the employer was not prejudiced by an ¿ward of TTD since the employer contested all compensation and the claimant’s application for hearing did request adjudication of permanent partial disability. According to the deputy, the fact that the employer was aware that PPD benefits were in dispute meant that the employer had adequate notice and opportunity to defend against disability benefits in general, whether temporary or permanent.

It is evident from the initial discussion at the hearing that the attorneys for both sides were given the impression by the deputy that temporary benefits were not at issue and that the hearing would be limited to the claimant’s entitlement to medical care. With this understanding of the nature of the hearing, the employer would have no reason to submit any evidence of the extent of the claimant’s disability or of the claimant’s employability. By awarding TTD benefits after he had agreed not to take any evidence on the subject, the deputy changed the rules after the game had already been played. The employer was clearly denied an opportunity to defend and was prejudiced by this denial. In Adams Packing Association v. Reeves, IRC Order 2-3139 (1977), the IRC reversed an award of TTD where the only issue at the hearing concerned the compensability of the claimant’s accident. See also Alterman Transport Lines v. Hawkins, IRC Order 2-3180 (1977), cert. denied 354 So.2d 978 (Fla.1977), where the IRC reversed an award of TTD stating that “the requirements of due process are not met when the JIC awards or denies benefits which have not been placed in issue.” In this case, TTD benefits were not at issue in the October 17th hearing, and the employer was prejudicially denied his due process right to present evidence in defense.

The final point raised by the employer is also meritorious. A review of the record reveals that the only evidence of costs was a physician’s testimony that his expert witness fee was $125. The deputy awarded $129 for an expert witness fee and $100.95 for other costs which were never adduced into evidence. Since the record supports only $125 in costs, the award should be reduced accordingly.

REVERSED and REMANDED for reconsideration consistent with this opinion.

McCORD and SHIVERS, JJ., concur.


text:
    STANDARD CONSTRUCTION & ASSOCIATES and Continental National American Insurance Group, Appellants, v. Henry B. KINSLER, Appellee.
    No. UU-195.
    District Court of Appeal of Florida, First District.
    March 5, 1981.

      Mark A. Olewinski, Orlando, for appellants.
    Edward H. Hurt of Hurt & Parrish, Orlando, Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellee.
   JOANOS, Judge.

In this worker’s compensation appeal, the employer and its carrier contest the deputy commissioner’s finding that the claimant was temporarily totally disabled (“TTD”) for a period of three months following the date of claimant’s work-related accident. We agree with the employer that the deputy erred, as a matter of law, in awarding TTD benefits.

While working as a mason’s assistant on July 27, 1979, the claimant broke out in a severe rash on his hands, forehead and back which the parties stipulated was caused by exposure to cement mix. The claimant received treatment for the rash at the emergency room and returned to work a week after the initial outbreak. He worked for about a week before he was laid off for non-accident related reasons, but his rash worsened and required another visit to the emergency room. Thereafter, the claimant applied for one job at a construction site but was not hired. In November the claimant started work again doing odd jobs and “cleanup work.”

Besides the two emergency room visits, the record does not reflect any other medical examination until October 17,1979 when the claimant was seen by Dr. Kohen, an allergy specialist. The doctor testified that the claimant’s rash was healed when he first saw the claimant. Although the claimant went to Dr. Kohen again on October 26, 1979, the record indicates that each of these visits was for the purpose of diagnosis, not treatment.

The deputy’s award of TTD is erroneous in two respects. First, she awarded TTD through a period of time when the claimant was working. It is illogical to conclude that a claimant is totally disabled during a period of time when the evidence shows that the claimant could and did work. Cling Electric, Inc. v. Jones, 376 So.2d 481 (Fla. 1st DCA 1979); Westinghouse Electric Corp. v. Williams, 379 So.2d 1032 (Fla. 1st DCA 1980). As a second ground for reversal, the record indicates that the deputy found the claimant to be TTD even when he was not suffering the effects of the rash. TTD is defined as the healing period during which the claimant is by reason of the injury totally disabled and unable to work. Concord Realty Corp. v. Romano, 159 Fla. 1, 30 So.2d 495 (Fla.1947). According to Dr. Kohen’s uncontradicted testimony, the claimant’s rash was healed by the time that the claimant came to the doctor on October 17, 1979; an award of TTD past that date could not be based on competent, substantial evidence.

As a final point, the employer correctly points out that reversal of the award of benefits will also require the deputy to reconsider the attorney’s fee award on remand. Sue Ann’s Capri Lounge v. Harhalos, 377 So.2d 989 (Fla. 1st DCA 1979).

REVERSED and REMANDED for reconsideration consistent with this opinion.

ERVIN and BOOTH, JJ., concur.

      . The employer also argued that even assuming that the claimant was temporarily totally disabled, the award of TTD was calculated incorrectly because no credit was given for a stipulated amount of TTD already paid or for the salary the claimant earned while working. The claimant conceded error on this point and we agree that the calculation was erroneous. This issue has been superseded, however, since we are requiring the entire TTD award to be reconsidered on remand.


author: PER CURIAM.

text:
    Judith Ellen CORDIER, Appellant, v. Kenneth William CORDIER, Appellee.
    No. VV-291.
    District Court of Appeal of Florida, First District.
    March 5, 1981.
    Robison R. Herrell and John S. Morse of Salem, Salem, Musial & Morse, Tampa, for appellant.
    George E. Day, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

We direct the court below to correct two minor errors in its final judgment dissolving marriage dated December 13, 1979, and filed April 8,1980. The first error involved paragraph number 17 in the judgment which states:

As to the costs, the court orders that the parties shall equally divide the costs of this action which shall include, filing fee, court reporter, deposition, and recording fees.

At the dissolution hearing on December 13, 1979, the parties, with the court's approval, only agreed to split the outstanding costs at the time of the hearing which consisted only of the costs of the court reporter. The husband, appellee, agreed to absorb his initial costs. Therefore, the order should be amended to provide that the parties shall equally divide the costs that were outstanding as of December 13, 1979.

The judgment also omitted to include in paragraph number 18 a $10 gold coin which was one of the items which possession was disputed by the parties at the hearing on December 13, 1979. At that hearing the court decided that all the disputed property should be divided equally between the parties. Therefore, the gold coin should be added to the list of items in paragraph number 18 of the judgment.

We have examined the remaining points urged for reversal and find them unavailing. Reversed in part, affirmed in part and remanded for further proceedings consistent with this opinion.

ERVIN, BOOTH and JOANOS, JJ., concur.


text:
    SAMBO’S RESTAURANT and American Home Assurance Company, Appellants, v. Patricia HORN, Appellee.
    No. WW-85.
    District Court of Appeal of Florida, First District.
    March 5, 1981.

      Bruce R. Raster of Pattillo, MacKay & McKeever, P. A., Ocala, for appellants.
    Victor J. Musleh of Musleh, Bond, Arnett, Atkins & Krehl, and Seymour H. Rowland, Jr., Ocala, for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Previously we reviewed the compensation order entered March 27, 1979, and remanded for clarification. Sambo's Restaurant, et al. v. Patricia Horn, 381 So.2d 330 (Fla. 1st DCA 1980). Pursuant to our opinion and mandate, the deputy commissioner entered an amended order under date of May 29, 1980, which we now have for review.

Unfortunately, the compensation order as amended appears to contain some scrivener’s or typographical errors as to the dates of disability, as otherwise there would be an overlap of periods during which claimant was found to have differing amounts of temporary partial disability. We discern from the record, with the help of counsel, what we believe to be the correct dates and we therefore modify the amended compensation order to provide for payment of temporary partial disability benefits at the rate of $64.80 per week for the period of time from October 23, 1978, to November 11, 1978, and for payment of temporary partial disability benefits at the rate of 12.48 per week for the period from August 21, 1978, to October 21,1978, and for the period from November 27, 1978, to January 24, 1979. That part of the amendment to the compensation order requiring the carrier to pay claimant temporary partial disability benefits subsequent to the date of the amended order remains somewhat confusing since it fails to specify either the extent of the disability or the rate of benefits. Accordingly, that portion of the amendment to the order is stricken without prejudice.

As thus modified, the amended compensation order is affirmed, but without prejudice to claimant’s right, upon remand, to seek an award of benefits to which she may be entitled subsequent to January 24, 1979, as well as attorney’s fees and costs (as to which jurisdiction was reserved in the original order).

AFFIRMED as modified.

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


text:
    FOWLER HARVESTING and Florida Farm Bureau Insurance Company, Appellants, v. Willie THOMPSON, Appellee.
    No. WW-297.
    District Court of Appeal of Florida, First District.
    March 5, 1981.

      Herbert A. Langston, Jr., and James M. Hess, of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appellants.
    Jesse F. Sparks, Jr., Orlando, for appellee.
   PER CURIAM.

The deputy commissioner ordered that appellee be paid temporary, total disability benefits until he reached maximum medical improvement. We amend the order to state that TTD benefits should continue until ap-pellee achieves MMI or is able to return to work. A claimant need not have reached MMI to cease being eligible for TTD benefits. National Airlines v. Rowley, 9 FCR 262 (1975); Publix Supermarkets v. Fitzhugh, 8 FCR 250, cert. denied, 294 So.2d 661 (Fla.1974).

The order appealed from is otherwise AFFIRMED.

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


text:
    John L. GOODELL et al., Appellants, v. K. T. ENTERPRISES, LTD., Appellee.
    No. TT-242.
    District Court of Appeal of Florida, First District.
    March 10, 1981.

      William H. Jeter, Jr., of Adams & Adams, Jacksonville, for appellants.
    No appearance for appellee.
   PER CURIAM.

Better Baked Foods, Inc. (Better Baked) appeals a judgment holding appellee is not liable to Better Baked as a third party beneficiary of a breached contract between appellee and Goodell. Goodell also appeals, advocating that instead of awarding him only his deposit on the contract, the trial court should have allowed Goodell “cover” under Section 672.712, Florida Statutes (1977). We agree with both contentions.

Goodell initially contracted with appellee to build a continuous belt conveyor system. The agreement provided that appellee would ship the unit to Better Baked and install it according to its direction. Tyler, appellee’s president, admitted knowing the conveyor was for Better Baked’s pizza freezing business. It was undisputed that the president of Better Baked discussed the design of the unit at length with Tyler. The record further indicates that in pre-contract negotiations, the sale was going to be directly with Better Baked. However, in the contract, Goodell indicated that “we” (obviously Better Baked and Goodell) had decided that Goodell would take title. Good-ell paid $10,900 as a deposit on the contract. However, as the trial court found, the conveyor built by appellee did not meet the specifications. When it became apparent that satisfactory modifications could not be made, Goodell sent a mailgram to appellee informing Tyler that “we” decided to cancel the contract. Goodell informed Tyler that if he returned the deposit money, the contract would be cancelled, and no other damages would be claimed. After approximately three weeks, Goodell sent another mailgram warning that if the deposit was not returned by December 15th, Goodell would “... sue for the deposit and for damages because of lost jobs, rent, extra expense because of delay, and the additional cost of another conveyor.” However, the deposit was not returned. Goodell bought another continuous conveyor belt which was installed about five months later at a cost of $12,820 over Goodell’s contract price. At trial, Better Baked presented evidence concerning its damages, including additional rental, overtime paid employees to fill orders for frozen pizzas, lost profits, and more.

The trial court found that Goodell was to purchase the equipment for use by Better Baked; that appellee breached the contract by failing to timely deliver and furnish the conveyor in compliance with the specifications; and that Goodell rescinded the contract and was entitled to return of his down payment with interest. The trial court ruled against Better Baked on the common law theory of third party beneficiary.

First, we think Goodell presented an unrebutted prima facie case for “cover” under Section 672.712 which provides:

(1) After a breach within the preceding section the buyer may “cover” by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller.
(2) The buyer may recover from the seller as damages the difference between the cost for cover and the contract price together with any incidental or consequential damages as hereinafter defined (s. 672.715), but less expenses saved in consequence of the seller’s breach.
(3) Failure of the buyer to effect cover within this section does not bar him from any other remedy.

There was no unreasonable delay in the purchase of the new unit because the unit had to be specially ordered. The unit clearly was bought as a substitute for appellee’s unit. The testimony showed that the new unit and the unit contracted for were of the same general type. We note that we do not consider that Goodell’s first mailgram waived his right to cover. First, return to the status quo obviously depended upon an immediate return of the deposit money. Further, as stated in Section 672.711:

(1) Where ... the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (s. 672.-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid:
(a) “Cover” and have damages under the next section as to all the goods affected whether or not they have been identified to the contract ...

Therefore, based upon the unrebutted proof at trial, we hold that Goodell is entitled to not only the return of his deposit money, but another $12,820, constituting the cost of cover.

We also find that appellee is liable to Better Baked as a third party beneficiary. As shown in the facts above, the precontract dealings of the parties, the contract itself, and the subsequent dealings between the parties show that the clear intent and purpose of the contract was to directly and substantially benefit Better Baked. See generally Marianna Lime Products Company v. McKay, 109 Fla. 275, 147 So. 264 (1933), stating the general law regarding third party beneficiaries. See also Flintkote Company v. Brewer Co. of Florida, 221 So.2d 784 (Fla.3d DCA 1969), cert. denied, 225 So.2d 920 (Fla.1969), where Brewer, a general contractor, was held entitled to bring suit against Flintkote as a third party beneficiary where Flintkote failed to deliver on a contract between it and Brewer’s subcontractor, although no contract existed between Brewer and Flint-kote.

Although we hold that the unrefuted evidence shows Better Baked is entitled to sue appellee for damages as a third party beneficiary, we decline to rule as to the amount of damages, if any, which should be awarded. The evidence in this regard is infused with factual determinations which should properly be made by the trial court.

Accordingly, the cause is REVERSED and REMANDED for entry of a final judgment not inconsistent with this opinion, to include a determination based upon the existing record of the amount of damages, if any, incurred by Better Baked.

McCORD, SHIVERS and JOANOS, JJ., concur.

      . Unfortunately, we have not been favored with a brief from appellee. This court granted appellee’s attorney permission to withdraw after we assured ourselves that reasonable means had been exhausted in an effort to notify appellee of the pending motion to withdraw.

      . Goodell owns some of Better Baked’s stock, is on the Board of Directors, and is the company attorney. Apparently he took title to the unit as security for a loan to Better Baked for expansion.

      .A meeting was held between Goodell, Better Baked and Tyler, concerning possible modifications. Subsequently, Better Baked told Goodell to cancel the contract.


author: SHIVERS, Judge.

text:
    GENERAL ELECTRIC COMPANY and Electric Mutual Insurance Company, Appellants, v. Sue OSBORNE, Appellee.
    No. UU-48.
    District Court of Appeal of Florida, First District.
    March 10, 1981.

      Robert E. Sheridan, of Jesse F. Sparks, P. A., Orlando, for appellants.
    David M. Hammond, of Meyers, Mooney & Adler, P. A., Orlando, for appellee.
   SHIVERS, Judge.

Employer/Carrier appeal a workers’ compensation order of modification finding that claimant has sustained a change of condition and awarding 75% permanent partial disability benefits of the body as a whole. We reverse in part and affirm in part.

Claimant sustained a compensable industrial injury on March 29, 1971, when she ruptured a disc in her back. An order was entered on February 4, 1975, finding that the claimant had a 15-20% permanent physical impairment and awarding permanent partial disability benefits of 50% of the body as a whole due to loss of wage-earning capacity. On February 15, 1979, claimant filed a petition for modification, alleging a change of condition since the entry of the previous order, and seeking benefits in excess of 50% permanent partial disability of the body as a whole. At the hearing below, she testified that her condition had deteriorated since 1975, resulting in another back operation in 1979, and the intensity of pain in her back had increased and was beginning to radiate into her left leg. Her treating physician basically corroborated the claimant’s testimony and opined that she now had a 25-30% anatomical impairment rating as a result of the accident.

The deputy commissioner found that claimant’s condition had changed since the earlier order and awarded 75% permanent partial disability benefits of the body as a whole based upon a loss of wage-earning capacity.

The deputy commissioner did not err in finding the claimant’s condition had changed. Section 440.28, Florida Statutes (1977), provides for a modification of a previous compensation order on the ground that the claimant’s condition has changed since the entry of the previous order. The change of condition provision is designed to afford relief to a claimant whose condition either becomes progressively worse when not anticipated by the original diagnosis or is the product of evidentiary factors not known at the time of the initial claim proceeding. Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla.1963); Soloff v. U-Totem, Inc., of Broward, 257 So.2d 31 (Fla.1972). The change of condition provision applies to those cases in which, at the time of the initial order, claimant failed to show the true extent of the injury either because it was not known or had not manifested itself in sufficient degree to be subject to proof. Hall v. Seaboard Maritime Corporation, 104 So.2d 384 (Fla. 1st DCA 1958); Italian Terrazzo and Mosaic Company, Inc. v. Mitchell, 8 FCR 68 (1973).

Here, claimant has sustained her burden of proving a change of condition. She testified that she has not sustained an injury or accident since entry of the original order in 1975. Since 1975, her condition has gradually worsened. The pain in the middle of her low back has begun to slowly radiate into her left leg. About one year after the previous order, she began having hard cramps and numbness in both legs. This numbness later developed into a “throbbing, aching pain” which required her to begin to take pain medication and subsequently led to further back surgery in 1979. Prior to the 1979 surgery, claimant’s treating physician testified that his examination of the claimant basically corroborated her complaints about her deteriorating condition. He testified that the 1979 surgery was related to the claimant’s industrial accident and previous back surgery in 1974. He opined that claimant presently has a 25-30% permanent physical impairment of the body as a whole. Previously, the original order found that claimant had a 15-20% permanent physical impairment of the body as a whole. Therefore, there is sufficient evidence to support the change of condition finding by the deputy commissioner. See, Scotty’s Carpet Service v. McGriff, IRC Order 2-3155 (1977), holding that there was sufficient evidence to support a finding of a change of condition where the claimant and the claimant’s physician agreed that claimant’s condition had deteriorated since the initial order.

However, there is insufficient evidence to support the finding that claimant’s disability has increased from 50-75% permanent partial disability of the body as a whole based upon loss of wage-earning capacity. Walker v. Electronic Products, 248 So.2d 161 (Fla.1971). Claimant testified that she has not worked and has made no attempt to obtain employment since 1974. In order to show a loss of wage-earning capacity, claimants must affirmatively demonstrate a good faith effort to obtain employment within their physical limitations. Mahler v. Lauderdale Lakes, 322 So.2d 507 (Fla.1975); Matera v. Gautier, 133 So.2d 732 (Fla.1961); Walker, supra. Therefore, the award of 75% permanent partial disability of the body as a whole based upon a loss of wage-earning capacity must be reversed because of the claimant’s failure to seek employment.

In light of this decision, the deputy commissioner’s award of attorney’s fees to claimant’s attorney must also be reversed and remanded for reconsideration. Although claimant’s attorney is entitled to a fee for obtaining the unappealed award of temporary total disability benefits for the claimant, the attorney fee award below was based, in part, upon the erroneous finding that the claimant sustained a loss of wage-earning capacity of an additional 25% since the previous order.

Accordingly, the appealed order is affirmed in part and reversed in part.

McCORD and JOANOS, JJ., concur.


text:
    DEPARTMENT OF OFFENDER REHABILITATION and Division of Risk Management, Appellants, v. Bertie Mae GODWIN, Appellee.
    No. UU-64.
    District Court of Appeal of Florida, First District.
    March 10, 1981.

      R. Dennis Comfort and Anthony J. Salzman, of Jones & Langdon, Gainesville, for appellants.
    S. David Cox, Gainesville, for appellee.
   JOANOS, Judge.

The claimant/appellee in this workers’ compensation appeal had three accidents involving the same employer over a two and a half year period. The first took place on March 4, 1975 when the claimant fell and injured primarily her right knee. She filed a separate claim against the employer for the 1975 injury; the disposition of that claim is not a subject of this appeal. The claimant’s next two accidents allegedly occurred within one month of each other. On July 27, 1977, the claimant experienced upper back pain while lifting a patient, and on August 15, 1977, the claimant fell, apparently injuring her right knee and low back. When the claimant filed her claim seeking temporary and partial disability benefits, as well as medical expenses, she referred only to August 15, 1977 as the date of the accident although she did suggest that a “merger” of injuries had occurred. A hearing was held on this claim, and the deputy commissioner found that the claimant’s August 15th injuries were “superimposed on a prior injury.” The employer/appellant was ordered to pay temporary total disability (“TTD”) benefits from the date of the accident to September 6, 1978 and permanent total disability (“PTD”) benefits thereafter. The deputy also found that the claimant reached maximum medical improvement (“MMI”) on December 19, 1977. The employer appeals this order and raises several meritorious points.

One error in the order is the deputy’s inconsistent finding with regard to the breaking point between temporary and permanent disability. The deputy ordered payment of TTD until September 6, 1978 yet found that MMI was reached on December 19, 1977. It is a principle of Workers’ Compensation Law that except under unusual circumstances not present here, the date of MMI marks the end of temporary disability and the beginning of permanent disability. Corral v. McCrory Corp., 228 So.2d 900 (Fla.1969). Thus, the deputy’s award of TTD almost 10 months after the date he found for MMI is faulty.

The deputy’s determination on MMI is erroneous in another respect. In the record, the only evidence regarding December 19,1977, the date that the deputy found as MMI, is that it was the date when a physician wrote his report. In that report, the doctor stated that MMI occurred on November 17, 1977. Even the validity of the November date is questionable, however, because of contradictory notes written by the same physician and the claimant’s testimony that the December report was the result of a secretarial error. In any event, the inconsistent and unsupported findings made by the deputy necessitate a reconsideration of the MMI date which is based upon competent substantial evidence and which coincides with the end of temporary benefits and the beginning of permanent benefits.

As another issue raised on appeal, the employer argued that the deputy’s finding of PTD based on wage earning capacity loss was erroneous because the claimant failed to conduct an adequate job search after reaching MMI. Since we are remanding this case for redetermination of the MMI date, we cannot make a decision on the adequacy of the search or whether a job search was excusable under the circumstances. We do note, however, that the order was deficient for its failure to apply the facts of the case to any of the criteria set forth in Walker v. Electronic Products & Engineering, 248 So.2d 161 (Fla.1971). On remand, if the deputy determines that the claimant is entitled to an award based on loss of wage earning capacity, he should base that award upon those ultimate facts which support such a finding. Commercial Union Assurance Co. v. Hyman, 379 So.2d 456 (Fla. 1st DCA 1979).

The employer also contests the deputy’s finding that the claimant’s injuries were “superimposed on a prior injury” to cause permanent total disability. Initially, we note that the deputy’s order is unclear as to his meaning in making that finding. The deputy did not state what the “prior injury” was, whether and to what extent the unnamed prior injury resulted in any permanent impairment prior to the August 15th accident, or whether the claimant had previously been compensated for the prior injury. This last factor is particularly important since the record reveals that the claimant suffered several earlier work-related injuries with the same employer. Under § 440.15(5), Florida Statutes (1977), the employer should not be placed in the position of making double compensation payments. The claimant testified that she filed a claim for the 1975 accident with the same employer but her testimony regarding the disposition of that claim is vague. On remand, the parties should be afforded the opportunity to present more adequate evidence to determine the application of § 440.15(5). If the deputy determines that merger or apportionment under § 440.15(5) is appropriate, he should make that clear.

Two final points also require reconsideration by the deputy. First, the deputy incorrectly ordered the employer to pay for the claimant’s medical transportation at the rate of 17$ per mile when both parties stipulated that mileage should be awarded at the rate of 14$ per mile for travel before July 1,1979 and 17$ per mile for any travel after that date. Second, since there will be an alteration of the benefits awarded on remand, the attorney’s fee award should also be reconsidered.

REVERSED and REMANDED for reconsideration consistent with this opinion.

McCORD and SHIVERS, JJ., concur.


text:
    Vance ROBERTS, Appellant, v. GEORGIA-PACIFIC CORPORATION, Self-Insured, Appellee.
    No. UU-193.
    District Court of Appeal of Florida, First District.
    March 10, 1981.

      Thomas W. Davis, Gainesville, for appellant.
    Ause Brown, Gainesville, for appellee.
   JOANOS, Judge.

The claimant appeals a workers’ compensation order in which the deputy commissioner denied an award of attorney’s fees but awarded compensation for 25% permanent partial disability (“PPD”) to the claimant’s thumb. This order is challenged in two respects. First, the claimant argues that he is entitled to an attorney’s fee award because the employer did not pay compensation benefits within 21 days of notice of the claim, as required by § 440.-34(1) Florida Statutes (1977). Second, the claimant contends that the deputy erred in basing the disability rating on a scheduled injury to the thumb rather than the hand. We agree with both of the claimant’s arguments and reverse the deputy’s order.

The claimant’s work-related accident occurred on July 6, 1977 when a “wood chipper roller” weighing about 800 pounds fell on the claimant’s left hand. The nature of the injury is not disputed. Each of the physicians who testified agreed that the primary injury was a crushing of the joint at the base of the thumb. The claimant also fractured the first metacarpal bone (the cylindrical bone of the hand which supports the thumb) and lacerated the the-nar eminance (the muscles on the palm side of the hand which move the thumb). These injuries required hospitalization and surgery, which was performed by Dr. Martin. The doctor filed reports describing the injury and the treatments on July 18,1977 and October 14, 1977. In the last report, Dr. Martin stated that the claimant was discharged as cured on October 3rd and could return to work on October 4th. The report did not give a permanent impairment rating in the space provided, but sometime after the hearing began the doctor sent an amended report to the deputy which rated claimant as having a 30-40% permanent disability of the left hand.

The employer paid temporary total disability benefits until October 4th but did not commence payment of any permanent benefits. On October 21st, the claimant filed a claim seeking, among other things, a determination of his entitlement to temporary and permanent disability benefits. After receiving no response to the claim by the employer, the claimant’s attorney finally arranged for an evaluation of the claimant’s hand by Dr. Freed, an orthopedic physician, and the employer was notified on November 17th of the appointment with Dr. Freed. In a report dated December 7, 1977, Dr. Freed stated that in his opinion the claimant had suffered a 25% permanent impairment to the left thumb. On December 19th, the employer began payments based on 25% permanent impairment of the thumb. Later, however, the doctor wrote a note in which he gave the opinion that he anticipated the injury to the web space between the thumb and the index finger would lead to an impairment of the hand.

Due to the conflict between Dr. Martin’s and Dr. Freed’s ratings, the deputy requested that the claimant’s hand be examined by Dr. Carducci, an orthopedic surgeon. The doctor rated claimant as having a 20% permanent impairment of the thumb. Dr. Car-ducci arrived at this rating by use of orthopedic guides which emphasize loss of motion in the affected area but acknowledged that the claimant had sustained several injuries to the hand.

The claimant argues that attorney’s fees should have been awarded because the employer did not timely accept the claim. According to the claimant’s analysis, the employer had notice of a claim for permanent disability either when it received the reports filed by Dr. Martin in July and October of 1977 or when the claim was filed on October 21, 1977. In either case the employer’s acceptance on December 19, 1977 was well past the 21 day limit provided in § 4AQ34Q). The employer, on the other hand, argues that permanent disability is a medical fact and that it could not be on notice of any permanency until it was advised of such by a physician. Under this rationale, the employer contends that its first “notice of the claim” occurred when it received Dr. Freed’s rating of permanency on December 7, 1977.

The employer in its argument misconceives the purpose of the 21 day provision in § 440.34(1). The 21 day period gives the employer both the right and the duty to investigate the validity of the claim and the burden is on the employer to exercise that right once it receives sufficient information on which it can base an investigation. Davis v. Edwin M. Green, Inc., 240 So.2d 4 (Fla.1970); Latt Maxcy Corp. v. Mann, 393 So.2d 1128 (Fla. 1st DCA 1980). In this case, the employer was well aware of the nature and severity of the claimant’s injury since it received each of the hospital reports filed by Dr. Martin. Although the receipt of these reports did not operate to begin the running of the 21 day period, Sue Ann’s Capri Lounge v. Harhalos, 377 So.2d 989 (Fla. 1st DCA 1979), the filing of the claim specifically requesting a permanency determination did initiate the 21 day period and the employer’s duty to investigate. As the claimant points out, the employer’s investigation of the validity of a permanency claim could have entailed little more than a phone call to Dr. Martin. Instead, the employer chose to abdicate its duty to investigate forcing the claimant’s attorney to make arrangements for an evaluation by another physician. By waiting until it received the report from Dr. Freed, the employer placed the burden of investigation on the claimant. “[A]n employer cannot attempt to create a ‘wall of wilful ignorance’ around itself and then ‘voluntarily’ pay benefits when the wall has been breached by claimant’s attorney and thereby avoid payment of a fee to a successful attorney.” Colvin v. State, D. O. T., 311 So.2d 366 (Fla.1975) citing to Davis v. Edwin M. Green, Inc., 240 So.2d 4 (Fla.1970). See also Smith v. Dixie Packers, Inc., 384 So.2d 709 (Fla. 1st DCA 1980).

The next argument raised by the claimant concerns the validity of the permanent impairment rating to his thumb despite the uncontested recognition of injuries to his hand. The claimant contends that he is entitled to have a rating based upon the injuries he received to the highest (in terms of percentage compensation) scheduled part. This contention is consistent with the theory that when a scheduled injury produces a disability or incapacity in a non-scheduled portion of the body, the claimant should be rated for the body as a whole rather than the legislative prescription for scheduled injuries. Mobley v. Jack & Son Plumbing, 170 So.2d 41 (Fla.1964). We see no reason why this rule should not be applied to differentiate between the various levels of scheduled injuries.

This case is directly analogous to the circumstances in Jewell v. Wood, 130 So.2d 277 (Fla.1961) where the court expressly rejected the employer’s argument that while the claimant’s injury was to be an unscheduled area (the shoulder), it resulted in a disabling effect to a scheduled member (the arm) and should receive a scheduled rating. The court concluded that since the tendon at the shoulder joint was torn, the rating should be based upon that unscheduled injury. The employer in this case is making essentially the same argument that was rejected in Jewell. The evidence has shown conclusively that the claimant received serious injuries to his hand and despite the fact that the hand injuries had primary impact on the thumb, the rating should have been given for the highest scheduled member which was impaired. Incidentally, we note that it would be an unusual occurrence if an injury to the hand did not result in some disablement to one of the digits of the hand.

REVERSED AND REMANDED for reconsideration consistent with this opinion.

ERVIN and BOOTH, JJ., concur.

      . That section, as it read on the date of the claimant’s accident, provided that an employer is liable for attorney’s fee when the employer “shall decline to pay a claim on or before the 21st day after they have notice of same ..


author: LILES, WOODIE A. (Retired), Associate Judge. THOMPSON, Judge,

text:
    Joel Robert WITMER, Appellant, v. STATE of Florida, Appellee.
    No. VV-320.
    District Court of Appeal of Florida, First District.
    March 10, 1981.

      Stephen L. Gorman, of Gorman & Matthew, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   LILES, WOODIE A. (Retired), Associate Judge.

This is an appeal from a conviction for extortion. We reverse because the trial court erred by allowing the State to call a rebuttal witness, who was not listed in discovery pursuant to Florida Rule of Criminal Procedure 3.220, without conducting an appropriate inquiry into the circumstances surrounding the State’s noncompliance. The record clearly reveals that the State failed to list its rebuttal witness. It also reveals that Appellant’s attorney had been furnished police reports by the State some time before the trial. These reports show that the rebuttal witness and several other persons filed complaints alleging that the Appellant had made prior similar threats against these parties. The record also reveals that the prosecutor did not anticipate calling the rebuttal witness and, in fact, told Appellant’s attorney that he was not going to call her or any of the other complainants. It was only after the Appellant took the stand on his own behalf and testified that he made no threats to others that the State made an attempt to locate and call this particular rebuttal witness. Appellant’s attorney timely objected to the State’s calling of this witness on the grounds that the prosecution had represented it would not call this witness and that he, the defense counsel, had not had the opportunity to depose this witness. The State contended that the name of the rebuttal witness did not have to be listed in response to the Appellant’s demand for discovery. Adopting the State’s contention, the trial court overruled the Appellant’s timely objection, denied his motion for mistrial, and permitted the witness to testify.

Contrary to the contention of the State, rebuttal witnesses, the necessity for whom the State can reasonably anticipate, are included within the ambit of Florida Rule of Criminal Procedure 3.220. See, e. g., Lucas v. State, 376 So.2d 1149 (Fla.1979); Hardison v. State, 341 So.2d 270 (Fla. 2nd DCA 1977); Rowan v. State, 252 So.2d 851 (Fla. 3rd DCA 1971). While the failure to list a rebuttal witness does not automatically prohibit the use of the witness, it is obligatory for the trial court to make an inquiry to determine whether noncompliance with this rule would result in harm or prejudice to the defendant. Lucas, at 1151; Richardson v. State, 246 So.2d 771 (Fla. 1971). However, the trial judge erroneously based his denial of the Appellant’s objection and motion for mistrial on the fact that rebuttal witnesses are not covered by this rule. When the trial judge so labors under a misapprehension of law, it is difficult to conclude that a sufficient Richardson inquiry has been made, much less that non-prejudice to the Appellant has been shown. It is “... essential that the circumstances establishing the nonprejudice to the defendant affirmatively appear in the record.” Richardson, at 775. [Emphasis supplied] Further, we think that prima facie prejudice has been demonstrated, for how could the defendant in an extortion case be more prejudiced than by the prosecutor leading counsel to think that there would be no Williams type evidence from a rebuttal witness and then calling that witness on the ground that the prosecutor was “surprised” by the defendant’s denial of various similar threats? Perhaps a recess and deposition was necessary. Perhaps a brief interview would have sufficed. We, however, cannot speculate as to what degree of inquiry was appropriate for this case and thus feel compelled to remand for a new trial.

REVERSED AND REMANDED for further proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., J., concurs.

THOMPSON, J., dissents with opinion.

THOMPSON, Judge,

dissenting.

I dissent. I would affirm the conviction.

While Fla.R.Crim.P. 3.220 does require that the name of a rebuttal witness be furnished in discovery, the failure to list a rebuttal witness is not error if the trial court makes an adequate inquiry and determines that such failure does not result in harm or prejudice to the defendant. Lucas v. State, 376 So.2d 1149 (Fla.1979). An adequate inquiry was made herein to determine whether the defendant would be harmed or prejudiced by permitting the witness to testify, and this inquiry affirmatively showed that the defendant would not be harmed. There are approximately nine pages of the record relating to the question of whether the rebuttal witness should be permitted to testify. The record reveals that the defendant’s attorney had been furnished copies of police reports by the State quite some time before trial. These reports showed that the rebuttal witness, along with several other persons, had filed complaints alleging that the defendant had made prior similar threats to those parties. The defendant’s attorney knew the names of these people and knew that they could testify as to prior similar acts. The rebuttal witness only testified as to a prior similar act and the substance of this testimony had been known by defendant’s attorney for some time. The majority contends that it was extremely prejudicial to permit the rebuttal witness to testify under these circumstances and that perhaps a recess and a deposition were necessary but in any event the brief interview of the witness was required. However, the court could have granted a month long continuance and permitted any number of depositions and the defendant would have been no better off, nor his attorney any better prepared to defend against the charge than he was at the time the witness was permitted to testify. The defendant’s attorney already knew what the witness could testify to in this appeal and has not argued that he was in any way surprised by her testimony.

Admittedly the trial judge permitted the witness to testify on an erroneous statement of law but if he reached the correct decision to let the witness testify for the wrong reason his decision should be affirmed. Stuart v. State, 360 So.2d 406 (Fla. 1978); Stone v. Rosen, 348 So.2d 387 (Fla. 3d DCA 1977).

Richardson merely requires that circumstances establishing non-prejudice to the defendant affirmatively appear in the record. It is not necessary that the trial judge use the magic words that he will now conduct a Richardson inquiry before permitting a witness to testify. It is only necessary that the record reveal affirmatively that there is no prejudice to the defendant. The record in this case affirmatively reveals that neither depositions nor any other actions by defendant’s attorney could have enabled him to be better prepared and that the failure to formally list the rebuttal witness’ name in no way prejudiced the defendant in the preparation of his defense.

The state had told the defendant’s attorney that it did not plan on using the witnesses as to prior threats and the state did not anticipate the necessity for them at trial. When the defendant took the stand and testified that he had made no other threats, the state was able to find one witness to rebut this testimony. Only if the defendant took the stand and testified that he made no other threats thinking that he could do so without fear of contradiction would there be any prejudice to the defendant in letting the witness testify. This prejudice, however, would not be a result of failure to comply with Richardson, but would be a result of an attempt by the defendant to take advantage of the state’s representation that the witnesses would not be called.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


author: MILLS, Chief Judge.

text:
    BEKINS MOVING & STORAGE and Consumer Claims Agency, Appellants, v. Robert GALLOWAY, Reeves Transportation and Transport Insurance Company, Appellees.
    No. WW-236.
    District Court of Appeal of Florida, First District.
    March 10, 1981.
    Thomas J. Tansey, III, Fort Lauderdale, for appellants.
    Eugene N. Betts, P. A., and A. J. Beisler, III, of Anthony J. Beisler, P. A., Fort Laud-erdale, for appellees.
   MILLS, Chief Judge.

Appellants in this workers’ compensation case raise three points on appeal, only one of which merits comment.

The recitations in the order of the Deputy Commissioner make clear the fact that he overlooked the testimony of appellant’s witness regarding a similar employee for purposes of determining average weekly wage. The order omits the name of this witness in its list of witnesses, states that the employer “was unable to produce evidence of a similar employee,” and further states that the determination of average weekly wage was based on the claimant’s testimony because it was the only evidence before him.

Accordingly, we reverse and remand to the Deputy Commissioner for reconsideration of the average weekly wage in light of the testimony of Hermelio Marin. This remand is not to be construed as a comment on weight to be given Marin’s testimony or as a determination of whether the employee was “similar.” The order appealed from is, in all other respects, AFFIRMED.

ROBERT P. SMITH, Jr. and WENT-WORTH, JJ., concur.


text:
    Javier Aparicio MOREJON, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-359, 77-369.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Javier Morejon brings these consolidated appeals from a conviction and sentence for first degree murder, four counts of attempted first degree murder, and revocation of probation in two other prior cases.

The defendant was indicted in December, 1975 for first degree murder and attempted first degree murder, growing out of an incident, at the school where the defendant was a student, involving the defendant going through the school shooting at and hitting several victims. On December 12, 1975 the defendant was adjudicated incompetent and thereupon committed to the Division of Mental Health, but thereafter adjudicated competent at hearings conducting on August 27, and November 8, 1976. A jury trial resulted in a life sentence (minimum of 25 years) on Count I and 30-year consecutive terms of imprisonment on Counts II through V, respectively. Also, probation was revoked in two prior cases and the defendant was sentenced to 15 years in each case, which sentences were to be served prior to the beginning of the sentences imposed at trial; the sentences were all to be “at hard labor”.

The appellant contends: (1) That the evidence was not sufficient to support a finding that he was presently competent to stand trial, and that the judge placed the burden of proof on the wrong party. (2) That it was error not to grant a mistrial and to permit evidence to be introduced that the defendant was a drug dealer and a thief, in that such evidence concerned another distinct crime committed by the defendant. (3) That it was error to permit testimony to be introduced concerning the defendant’s religious beliefs and to deny a motion for mistrial after a witness testified that the defendant was the follower of a particular religion in Cuba and that in his own mind (i. e., the mind of the witness) religion “... has a big relation to this whole deal”. (4) That it was error to sentence the defendant to 15-year consecutive sentences on probation violations where the order granting probation limited the potential sentence to three years, citing Troupe v. Rowe, 283 So.2d 857 (1973). (5) That the term “hard labor” should be stricken from all sentences. See: Page v. State, 376 So.2d 901 (Fla.2d DCA 1979).

We find no merit in any of the appellant’s points, except the last, for the following reasons: (1) There was no error in finding the defendant competent to stand trial. Although the record in the trial court indicates a split of opinion from the medical witnesses concerning the defendant’s legal competency to stand trial, the record does support the trial court’s determination that the preponderance of the evidence established that the defendant was legally competent to stand trial. Pressley v. State, 261 S.2d 522 (Fla.3d DCA 1972); Julious v. State, 271 So.2d 807 (Fla.3d DCA 1973); Rojas v. State, 296 So.2d 627 (Fla.3d DCA 1974). (2) There was no error in admitting into evidence testimony that the defendant was a drug dealer, nor was it error to refuse to grant a mistrial with regard to this matter. The testimony was offered, not to show the defendant’s bad character or criminal propensities but, rather, to show the defendant’s state of mind at the time he committed the crimes. Williams v. State, 110 So.2d 654 (Fla.1959); Gordan v. State, 288 So.2d 295 (Fla. 4th DCA 1974); Blake v. State, 336 So.2d 454 (Fla.3d DCA 1976). (3) There was no error in admitting testimony concerning the defendant’s “religious” beliefs and in denying a mistrial predicated thereon. The testimony of a witness to the effect that the defendant had stated that men should settle their differences “in blood” was relevant as probative of the defendant’s motive, intent or state of mind. Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948); Williams v. State, supra; Mackiewicz v. State, 114 So.2d 684 (Fla.1959). (4) There was no error in the 15-year consecutive sentences imposed upon the revocation of the defendant’s probation. As stated in the case of State v. Segarra, 388 So.2d 1017 (Fla.1980), “When a defendant pleads guilty pursuant to a plea bargain and the court places him on probation, if he violates his probation the court can sentence him to a term in excess of the provisions of the original bargain”. (5) As to the sentence at “hard labor”, this was clearly erroneous. Dawson v. State, 360 So.2d 57 (Fla.3d DCA 1978); Flaugher v. State, 373 So.2d 385 (Fla. 4th DCA 1979); Page v. State, 376 So.2d 901 (Fla.2d DCA 1979).

We therefore strike from each of the sentences the words “at hard labor”, and affirm the conviction and sentences as modified.

Affirmed as modified.

      . See: Hartford Fire Insurance Company v. Brown, 60 Fla. 83, 53 So. 838 (1910), pages 90, 91; Compare, Gulf Heating and Refrigeration Company, Inc. v. Iowa Mutual Insurance Company, 193 So.2d 4 (Fla. 1966).

      . Furthermore, an amended order on the defendant’s probation (December 21, 1970) contains no such three-year sentencing cap.


author: FERGUSON, Judge.

text:
    Morris LAPIDUS, Appellant, v. ARLEN BEACH CONDOMINIUM ASSOCIATION, INC., Arlen Realty & Development Corp., et al., Appellees.
    No. 80-558.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and Todd A. Cowart, Miami, for appellant.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Byron G. Petersen, Miami, for appellees.
    Before HENDRY and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

By interlocutory appeal, third party defendant Morris Lapidus, challenges an order entered by the lower court denying his motion to compel arbitration. We elect to treat the interlocutory appeal as a petition for common law certiorari for the following reasons: (a) there is a strong public policy favoring arbitration, Fenster v. Makovsky, 67 So.2d 427 (Fla.1953); Arrieta v. Volkswagon Insurance Co., 343 So.2d 918 (Fla. 3d DCA 1977); (b) denial of a right to arbitration may not be adequately remedied by appeal, see, e. g., Morton Z. Levine and Associates, Chartered v. Van Deree, 334 So.2d 287 (Fla. 2d DCA 1976) (purpose of arbitration is to avoid litigation); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); and (c) permitting parties to litigate the dispute in court instead of proceeding to arbitration, if there is a right of arbitration, constitutes a departure from the essential requirements of law. Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980). We have jurisdiction pursuant to Fla.R.App.P. 9.100.

Florida courts recognize that a party’s contractual right to arbitration may be waived by actively participating in a lawsuit or taking action inconsistent with that right. Klosters Rederi A/S v. Arison Shipping Company, 280 So.2d 678 (Fla.1973); Ojus Industries, Inc. v. Mann, 221 So.2d 780 (Fla. 3d DCA 1969). Filing an answer without asserting the right for arbitration acts as waiver, King v. Thompson & McKinnon, Auchincloss Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1977); as does initiating legal action without seeking arbitration, Seville Condominium v. Clearwater Development Corp., 340 So.2d 1243 (Fla. 2d DCA 1976) and counterclaiming without raising the issue of arbitration, Mike Bradford & Co. v. Gulf States Steel Co., 184 So.2d 911 (Fla. 3d DCA 1966).

Although Florida courts have not ruled directly on point, other jurisdictions have held that moving for summary judgment results in a waiver of any right to arbitration. See Applicolor, Inc. v. Surface Combustion Corp., 77 Ill.App.2d 260, 222 N.E.2d 168 (1966); Board of Education v. Mancuso Brothers, 25 Misc.2d 122, 204 N.Y.S.2d 410 (N.Y.Sup.Ct.1960). See also 98 A.L.R.3d 767.

A party who contests the merits of a claim by filing a motion for summary judgment accepts the judicial forum. She may not consistently later claim that only the arbitral forum is satisfactory. See, e. g., De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 362 N.Y.S.2d 843, 846 (N.Y.Ct.App.1974). Where, as here, the issue of waiver is placed before the trial court, the court could reasonably find that by filing a motion for summary judgment, Lapidus manifested an acceptance of the judicial forum and waived any right he may have had with respect to arbitration. Accordingly, finding that the trial court did not depart from the essential requirements of law, we deny the petition for writ of certiorari.

Certiorari denied.

      . Fla.R.App.P. 9.040(c).


text:
    Feliz MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 80-879.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Gilmour, Morgan & Rosenblatt, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Bernhardt v. State, 288 So.2d 490 (Fla.1974); Wheeler v. State, 344 So.2d 630 (Fla.2d DCA 1977); Couch v. State, 341 So.2d 285 (Fla.2d DCA 1977). See Machado v. State, 363 So.2d 1132 (Fla.3d DCA 1978).


text:
    Jethro PITTS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1155.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Appellant was placed on probation in prosecutions under two case numbers, each case containing two counts. In a subsequent revocation proceeding, the trial court entered a judgment and sentence for both cases; however, rather than sentence appellant under case number 78-5646 for two counts of second degree grand theft, the court inadvertently entered judgment and sentence under that case number for the counts contained under the other case number (78-8224): sale or delivery of controlled substance and second degree grand theft. Judgment and sentence were properly entered under the latter case number. We vacate the judgment and sentence entered under case number 78-5646, and remand for resentencing.

Appellant’s other argument is without merit.

Judgment and sentence vacated, in part, and case remanded.


text:
    Randy FUSSELL, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1165.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Peter Kutner and Henry R. Carr, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Bernhardt v. State, 288 So.2d 490 (Fla.1974); Byrd v. State, 390 So.2d 145 (Fla.3d DCA 1980); Cioeta v. State, 367 So.2d 718 (Fla.3d DCA 1979).


text:
    FORD MOTOR COMPANY, Appellant, v. Dorothy HERMAN et al., Appellees.
    No. 80-1228.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Mershon, Sawyer, Johnston, Dunwody & Cole and Edward T. O’Donnell, Miami, for appellant.
    Maguire & Friend, Miami, for appellees.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

This is an appeal by the defendant from an order of the Circuit Court in Dade County granting plaintiff a new trial following a jury verdict in favor of defendant. The trial court’s order was based on (1) the defendant’s failure to supply the name and opinions of its expert witness in response to the plaintiffs’ expert witness interrogatories and (2) the court’s refusal to allow the plaintiff to cross-examine the witness during trial relative to a memorandum written by a Ford engineer.

We have carefully considered appellant’s contentions on appeal in the light of the record and briefs and have concluded that appellant has failed to show that the trial court abused its discretion in granting a new trial. No reversible error having been demonstrated, the order appealed is affirmed.

Affirmed.


text:
    Guy Richard WEIRICH, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1414.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Andrew M. Tobin, Tavernier, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See: Evans v. State, 364 So.2d 93 (Fla.3d DCA 1978).

SCHWARTZ, J., dissents.


author: BASKIN, Judge.

text:
    Kenny THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    Case No. 79-1487.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Bennett H. Brummer, Public Defender and Dana R. Stoker, Spec. 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.
   BASKIN, Judge.

Upon review of the order entered by the trial court revoking defendant’s probation, we hold that the evidence supported the trial court’s ruling that defendant violated his probation by the commission of a burglary.

The state has conceded, however, that the evidence of defendant’s ability to pay costs of supervision was insufficient. Byrd v. State, 390 So.2d 145 (Fla. 3d DCA 1980). We therefore order the court’s finding that defendant violated condition 9 be stricken.

Affirmed as modified; remanded with directions.


text:
    NEISNER BROTHERS, INC., a New York Corporation, Appellant, v. PALM CORPORATION, a Florida Corporation, Melvin R. Homer and Jerome B. Homer, Appellees.
    No. 80-1881.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Baskin & Sears and Michael T. Greif and Charles Lubitz, Miami, for appellant.
    Lapidus & Stettin and Robert P. Frankel, Worley & Gautier and Henry H. Harnage, Miami, for appellees.
    Before BARKDULL, HENDRY and NESBITT, JJ.
   PER CURIAM.

Neisner Brothers (Neisner) appeals from a non-final order of the trial court which granted partial summary judgment in favor of the appellees. We have jurisdiction.

Palm Corporation (Palm) is the owner of Sunny Isles Shopping Center. Appellant Neisner is a tenant of the center by virtue of a 1957 lease which Neisner executed with Palm’s predecessor in interest. In 1978 Palm entered into an agreement with Jerome and Melvin Homer to lease a portion of the shopping center parking lot on which to build a restaurant. Neisner objected to this proposed construction as violating a provision of its lease. Palm then filed this suit seeking a declaration of its rights under the two agreements.

The Homers, joined by Palm, moved for partial summary judgment alleging that the 1978 agreement did not violate the Neisner lease. The trial court granted the motion concluding that Neisner, while entitled to 300 parking spaces within 1,000 feet of its store, had no right to prevent the proposed construction which would affect neither the amount nor the location of these spaces. We disagree and reverse.

At the heart of this controversy is the meaning of paragraph 1(c) of the Neisner lease, which provides in relevant part:

No changes shall be made to the location of Tenant’s store ... or to the parking area, without the Landlord first obtaining the written consent of the tenant, [e. s.]

The plain language of this paragraph required Palm to obtain Neisner’s written consent before making any alterations in the parking lot. Clearly, the erection of a restaurant in the middle of the lot will “change” the parking area. It is conceded that no written consent was obtained from Neisner prior to the execution of the lease agreement between the Homers and Palm. By failing to give effect to this provision of the lease, the trial court varied the terms of the agreement. Where, as here, a contract term is explicit and unambiguous, it must be accorded its plain meaning. Pafford v. Standard Life Ins. Co. of Indiana, 52 So.2d 910 (Fla.1951); Bared v. Cobo, 379 So.2d 666 (Fla. 3d DCA 1980).

In so ruling we note a similar decision in a sister state based on a lease provision substantially the same as paragraph 1(c): Food Fair Stores, Inc. v. Jackson Heights Shopping Center, Inc., 55 Misc.2d 205, 284 N.Y.S.2d 814, aff’d mem., 28 A.D.2d 1207, 285 N.Y.S.2d 1009 (1967). Additionally, we are impressed with the analysis of a comparable situation in the case of Walgreen Co. v. American National Bank & Trust Co. of Chicago, 4 Ill.App.3d 549, 281 N.E.2d 462 (1972), where the court treats the broader implications peculiar to this form of lease agreement.

Accordingly, the partial summary judgment under review is reversed and the cause remanded with directions to enter judgment on this issue in favor of appellant Neisner.

Reversed and remanded with directions.

      . Fla.R.App.P. 9.130(a)(3)(C)(iv).

      . Paragraph 10(a) of the Neisner lease.


text:
    Freida GORDON, Appellant, v. KING DAVID HOTEL CORP., The City of Miami Beach, and the State of Florida Department of Transportation, Appellee.
    No. 80-1993.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Neil Chonin, Miami, and Kathleen Phillips, for appellant.
    James Dougherty, Miami, Jesse W. Miller, Hialeah, William H. Peeples, South Miami, for appellee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Leialoha v. City of Jacksonville, 64 So.2d 924 (Fla.1953).


text:
    Michael F. BARNETT, Appellant, v. Adriana C. BACARDI, Appellee.
    No. 80-2384.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Sheldon Yavitz, Miami, for appellant.
    No appearance, for appellee.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

The trial court granted a temporary injunction but did not require the posting of a bond [there was no attempt to come within the exception to this rule. See: Santona-Nervia Corporation v. Publix Market, Inc., 146 So.2d 394 (Fla. 3d DCA 1962); Hoffman v. White, 235 So.2d 43 (Fla. 4th DCA 1970); Fla.R.Civ.P. 1.610(b).] Upon a motion to dissolve, the trial court refused to dissolve the temporary injunction. This appeal ensued. We reverse.

Except in limited circumstances, which are not present in this case, a temporary injunction may not be issued without the posting of a bond. La Gran Familia, Inc. v. Cuba Pharmacy, Inc., 349 So.2d 769 (Fla. 3d DCA 1977); Crow, Pope & Carter, Inc. v. James, 349 So.2d 827 (Fla. 3d DCA 1977).

Therefore, the order refusing to dissolve the temporary injunction be and the same is hereby reversed and the matter remanded to the trial court with directions to grant the motion to dissolve and terminate the temporary injunction.

Reversed and remanded with directions.


text:
    Warren Mitchell BELL, Appellant, v. The STATE of Florida, Appellee.
    No. 77-861.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and DANIEL S. PEARSON, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on February 14, 1978 (354 So.2d 1266) reversing the judgment and sentence of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment dated January 8, 1981, 394 So.2d 979, now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the judgment of this court filed February 14, 1978 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment and sentence of the trial court is reinstated and the cause is remanded with directions for further trial court proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the criminal court (Rule 9.400(a) Florida Rules of Appellate Procedure).


text:
    MERCURY MOTOR EXPRESS, INC., Appellant, v. Patricia Lynn SMITH, etc., Appellee.
    No. 78-1710.
    District Court of Appeal of Florida, Third District.
    March 10, 1981.
    Papy, DuVal, Poole & Usich and Sheridan K. Weissenborn, Coral Gables, for appellant.
    Headley & Headley, Daniels & Hicks and Marc Hicks, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on May 22,1979 (372 So.2d 116) affirming the final judgment of the Circuit Court of Dade County, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion, 393 So.2d 545, and judgment filed January 22, 1981 and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on July 30,1979 is withdrawn, the judgment of this court filed May 22, 1979 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the final judgment of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedures).


text:
    Harold E. COWICK, Petitioner, v. Louie WAINWRIGHT, Respondent.
    No. UU-408.
    District Court of Appeal of Florida, First District.
    March 11, 1981.

      Harold E. Cowick, in pro. per., for petitioner.
    No appearance for respondent.
   PER CURIAM.

Petitioner complains of the conditions and treatment he endured while confined in the Leon County jail as a pretrial detainee. While the offensive conditions described, if true, might sufficiently establish due process violations of a constitutional magnitude, compare Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), we find petitioner’s own admission that he has been transferred from the Leon County jail to the Union Correctional Institution at Rai-ford following his conviction and sentence and thus is no longer subject to the jail conditions precludes habeas corpus relief. There is no showing that the conviction and sentence against petitioner was invalid. Accordingly, the petition for writ of habeas corpus must be denied.

SHIVERS, SHAW and THOMPSON, JJ., concur.


text:
    Leon HOLSTON, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. VV-73.
    District Court of Appeal of Florida, First District.
    March 11, 1981.
    Leon C. Holston, pro se, for petitioner.
    Malcolm S. Greenfield, Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for respondent.
   WENTWORTH, Judge.

Petitioner asserts that the Florida Parole and Probation Commission failed to establish a proper presumptive parole release date as mandated by Chapter 947, Florida Statutes, when it set petitioner’s release date at “life.” We agree.

The commission is not, of course, a sentencing court. It is charged with the responsibility of making sensitive decisions as to when release on parole is appropriate, based on objective parole criteria. An inmate entitled to such consideration is entitled to a binding presumptive parole release date as mandated by clear legislative language. Battis v. Florida Parole and Probation Commission, 386 So.2d 295 (Fla. 1st DCA 1980). “Date” is defined as “a statement or formula affixed (as to a piece of writing, inscription or coin) that specifies the time (as day, month and year) .... The point of time at which a transaction or event takes place or is appointed to take place; a given point of time.” Webster’s Third New International Dictionary (unabridged) (1967), at p. 576. We conclude that “life” is not an objective “date” either as defined in common usage or as required by context in Chapter 947.

By its own rule, the commission may establish a presumptive parole release date falling far beyond the sentence term imposed by the trial court. Rule 23-19.-02(2)(e), Florida Administrative Code. Thus, a release date so distant as to be beyond a life expectancy may be proper for an inmate currently incarcerated if his criminal history so warrants. Such a date would appear to be within the legislative intent as expressed in the Objective Parole Guidelines Act.

The Florida Parole and Probation Commission is directed to establish for petitioner a defined and particular binding presumptive parole release date within 45 days, if such has not already been established.

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

      . The Commission has made no showing of a rational basis for using “life” rather than a particular date, other than counsel’s assertion that “nothing in Florida law posits a specific condition which requires a specific date for parole .... ” The law does, however, mandate a “date,” and, in the absence of evidence of an intent to use the term in an unusual sense, no express legislative definition should be required for an apparently unambiguous word.


text:
    Glenn SWICEGOOD, Appellant, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. VV-306.
    District Court of Appeal of Florida, First District.
    March 11, 1981.

      R. Lee Smith, of Smith, Davenport, Bloom & Harden, Jacksonville, for appellant.
    H. Reynolds Sampson, General Counsel, and Margaret Ray Kemper, of the Department of Transportation, Tallahassee, for ap-pellee.
   ON MOTION TO DISMISS

PER CURIAM.

On October 3, 1980, appellee filed a motion to dismiss this appeal on the grounds that appellant’s initial brief should have been served on or before July 25,1980, had not been served, and no extensions of time had been granted or requested. We issued an order directing appellant to show cause within ten (10) days why appellee’s motion should not be granted. The response, which was filed after the ten-day time limit had expired, is as follows:

Appellant requests that this Court deny the Motion to Dismiss the Appeal in that the delay is in no part attributable to Appellant. The Appeal was taken in good faith and is not frivolous, but to the contrary, with substantial basis. Furthermore, no parties have been prejudiced by the delay.

Appellee replied to the response stating that “[ajppellant’s failure to offer any explanation for its failure to timely prosecute this appeal or seek an extension of time warrants dismissal”. We agree.

Although we have been reluctant to dismiss an appeal solely for failure to comply with the appellate rules, where there has been a flagrant disregard of the rules and appellant has been afforded an opportunity to explain the reasons for noncompliance but does not do so, dismissal is justified. Winstead v. Adams, 363 So.2d 807 (Fla. 1 DCA 1978); Akin v. Harvey, 283 So.2d 872 (Fla. 1 DCA 1973).

Therefore, this appeal is dismissed.

MILLS, C. J., and BOOTH and LARRY G. SMITH, JJ., concur.


author: THOMPSON, Judge.

text:
    POOLE & KENT COMPANY and Reliance Insurance Company, Appellants, v. Norman ASBELL, Appellee.
    No. VV-485.
    District Court of Appeal of Florida, First District.
    March 11, 1981.

      Harold C. Knecht, Jr., Coral Gables, for appellants.
    Anthony J. Scremin, Miami, for appellee.
   THOMPSON, Judge.

This is an appeal and cross-appeal from a workers’ compensation Order. We affirm in part and reverse in part.

On appeal, the appellants argue that the Deputy Commissioner (“the Deputy”) erred in finding that the claimant suffered a compensable aggravation of a pre-exist-ing coronary condition. After carefully reviewing the record herein, we have determined that there is competent substantial evidence to support the Deputy’s finding, and therefore, that finding is affirmed.

The appellants also argue that the Deputy erred in reserving jurisdiction to rule on the issue of the claimant’s loss of wage earning capacity. We agree and reverse.

The Deputy determined that the claimant suffered a 5% anatomical permanent partial disability (“PPD”) attributable to his 1978 accident. However, the Deputy failed to rule on the issue of whether, under § 440.15(3)(c), Fla.Stat. (Supp.1978), the claimant’s loss of wage-earning capacity exceeded his 5% anatomical PPD. The Deputy reserved jurisdiction to rule on this issue, explaining that the claimant had not conducted a meaningful job search. The Deputy had no authority to reserve jurisdiction to rule on this issue, which was properly noticed and ready for adjudication. See Coe v. Kentucky Fried Chicken, 393 So.2d 1156 (Fla. 1st DCA 1981); see also Garitson v. Rifenburg, 380 So.2d 1311 (Fla. 1st DCA 1980). The claimant failed to demonstrate that his loss of wage-earning capacity exceeded his anatomical impairment, and therefore, his claim for disability compensation based on loss of wage-earning capacity must be denied nunc pro tunc as of the date of the Deputy’s Order. See Coe, 393 So.2d 1156.

On cross-appeal, the claimant contends that the Deputy erred in not assessing penalties and/or interest payments against the appellants. As for the Deputy’s non-assessment of interest, we reverse. If an employer/carrier unsuccessfully controverts a claim, an award of interest on the amount of benefits that should have been paid is automatic. See Top of the Home Restaurant v. Mourino, IRC Order 2-3490 (July 26, 1978); Parker v. Brinson Constr. Co., 78 So.2d 873, 875-76 (Fla.1955).

As for the Deputy’s non-assessment of penalties, we affirm. Sections 440.20(5) and (6) (Supp.1978) clearly provide that penalties are not appropriate where an employer/carrier files a notice to controvert or a notice of appeal. Such notices were filed herein.

The claimant also contends that there was a scrivener’s error in the Deputy’s Order which deprived the claimant of two (2) months of temporary total disability (“TTD”) benefits. The appellants have conceded that if the claimant has suffered a compensable injury (which he has), a scrivener’s error was made. Moreover, the nature of this error is obvious. Accordingly, we modify the Deputy’s Order so that the claimant will receive TTD benefits for the period of time from October 26, 1978 to December 12, 1979.

Finally, we note that the claimant has raised one other issue regarding a medical bill that was received by the claimant subsequent to the date that the Deputy entered his Order. However, since the Deputy has not ruled on whether this bill should be paid by the appellants, this court cannot consider the claimant’s last issue.

The Deputy’s Order is affirmed in part and reversed in part, and this cause is remanded for proceedings consistent with this opinion.

SHIVERS and SHAW, JJ., concur.


text:
    Allan SHAD, Appellant, v. STATE of Florida, Appellee.
    No. WW-227.
    District Court of Appeal of Florida, First District.
    March 11, 1981.
    Richard B. Davis, Jr., Jasper, Larry Byrd of Ginsburg, Byrd, Jones & Pflaum, P. A., Sarasota, for appellant.
    Jim Smith, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   OWEN, WILLIAM C., Jr. (Retired), Associate Judge.

Defendant appeals from his conviction of attempted possession of more than one hundred pounds of cannabis with intent to sell. We reverse.

The State’s case against the Defendant established that on March 31, 1978, at approximately 2:30 a. m., an agricultural inspector pursued a pick-up truck with a camper top which passed his station without stopping. The truck was subsequently stopped by the agricultural inspector, who opened the camper top from the rear with the driver’s permission. Upon opening the camper top, he detected the marijuana-like odor emanating from the rear of the truck. His inspection thereafter disclosed several wrapped bales of marijuana concealed under a blanket, on top of which were clothes belonging to the Defendant, who was a passenger.

Constructive possession, upon which the State’s case necessarily rested, exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over the controlled substance. Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976). Since the Defendant did not have exclusive control of the truck, the prosecution’s burden was to prove that he had constructive possession of the marijuana by virtue of joint control of the truck with knowledge of its contents. Pacheco v. State, 386 So.2d 1308 (Fla. 1st DCA 1980); Doby v. State, 352 So.2d 1236 (Fla. 1st DCA 1977). The State contends that the presence of Defendant’s clothes in the rear of the truck, coupled with the strong odor of marijuana emanating from the rear of the truck when the camper top was opened, supports a reasonable inference that the Defendant placed his clothes in the rear of the truck and, in so doing, necessarily detected the presence of marijuana. This in turn supports the further inference that he had knowledge of its presence in the vehicle. Without agreeing, we presuppose his knowledge of its presence in reaching our disposition of the case. Given the Defendant’s knowledge of the presence of the cannabis, the State nonetheless had the burden to prove also that he had the ability to maintain control over the contraband or reduce it to his possession. Daudt v. State, 368 So.2d 52 (Fla. 2nd DCA 1979). Nothing in the State’s case could fairly and reasonably support an inference tending to prove this element of constructive possession. Therefore, we hold that it was error to deny his motion for judgment of acquittal at the close of the State’s case and renewed at the close of all of the evidence. Our disposition on this point makes it unnecessary for us to consider or pass upon other attacks made on the sufficiency of the evidence or the other points raised on appeal.

REVERSED AND REMANDED with instructions to discharge the Defendant.

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

      . A jury verdict of attempted possession of more than five grams of cannabis with intent to sell was also returned against the defendant. Since this charge is a lesser-included offense of attempted possession of more than one hundred pounds of cannabis with intent to sell, the trial judge appropriately did not adjudicate the defendant guilty of or sentence him for the lesser-included offense. See Purvis v. State, 370 So.2d 32 (Fla. 2nd DCA 1979).

      . Defendant testified that friends had arranged for him to get a ride north with a person then unknown to him and that, when the driver of the pick-up arrived at the place where Defendant was staying, he gave his clothes, on a hanger, to the driver who put them in the rear of the truck, Defendant leaving the house several minutes later and walking directly to the cab section of the truck. This testimony was corroborated by another witness.


text:
    William E. McGUIRE, Appellant, v. SPINOZA, INC., and Highlands Insurance Company, Appellees.
    No. WW-273.
    District Court of Appeal of Florida, First District.
    March 11, 1981.
    Bruce A. Campbell of Barrs, Melendi, Williamson & Levens, Tampa, for appellant.
    John J. O’Riorden and Alex P. Lancaster of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for appellees.
   MILLS, Chief Judge.

McGuire, claimant in a workers’ compensation action, appeals the deputy commissioner’s order which ruled his claim for additional medical treatment was barred by the statute of limitations. We reverse.

The original order of compensation was entered in January, 1977, and awarded permanent partial disability benefits. The claimant appealed to the Industrial Relations Commission, which affirmed the award in February, 1978. The carrier wrote McGuire a check on January 19,1977, in the amount of $5,120.00, representing full payment of compensation for permanent partial disability. However, the check was never cashed. Instead, McGuire filed an application for hearing in August, 1978, for “past-due benefits,” among other things. On October 18, 1978, the carrier wrote another $5,120.00 check to McGuire.

If McGuire’s claim was filed within two years of the date of the last payment of compensation, it was not barred by the statute of limitations. Section 440.19(2), Florida Statutes. The check dated October 18, 1978, was a payment of compensation. Therefore, the deputy erred in finding the statute had run on this claim which was filed January 4, 1980.

Citing Brown v. Giffen Industries, Inc., 281 So.2d 897 (Fla.1973), the carrier argues that the October 18 check was merely a “replacement” payment for the check previously issued and therefore does not affect the limitations period. However, Brown involved a claimant who was attempting to revive an already-expired limitations period, contrary to the well-settled principle that benefits voluntarily provided will not re-activate the limitations clock. See Miller v. Brewer Co. of Florida, Inc., 122 So.2d 565 (Fla.1960). The Brown court was also troubled that the claimant had waited more than three years from the issuance of the first check before filing a claim for the monies due. McGuire’s application for hearing on past-due benefits was filed within six months of the IRC’s affirmance and clearly within the two-year period.

Accordingly, the deputy’s order is reversed and we remand this case for further proceedings consistent with this opinion.

WENTWORTH, J., and BEVERLY, VIRGINIA Q., Associate Judge, concur.