text:
    Charles BOHANNON, d/b/a the Sewing Center and Florida Insurance Guaranty Association, Appellants, v. The SINGER COMPANY, a foreign corporation, David M. Kennedy and Joanne Kennedy, his wife, and William Newsome, Appellees.
    No. 83-605.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1983.
    Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller & Lamb, P.A., St. Peters-burg, for appellants.
    Michael J. Chutz and Donald V. Bulleit of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellee Singer Co.
   PER CURIAM.

Affirmed. See Houdaille Industries, Inc. v. Edwards, 374 So.2d 490 (Fla.1979).

BOARDMAN, A.C.J., and RYDER and DANAHY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michele HESS, a minor, By and Through her parents and next friends, Don HESS and Connie Tippett, and Don Hess and Connie Tippett, individually, Petitioners, v. METROPOLITAN DADE COUNTY, Respondent.
    No. 83-2061.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1983.
    Holland & Knight and Julian Clarkson and Richard Nichols and Andrea Simonton, Miami, for petitioners.
    Robert A. Ginsburg, Dade County Atty., and James A. Jurkowski, Asst. County Atty., for respondent.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Michele Hess and her parents seek to invoke this court’s original mandamus jurisdiction pursuant to article V, section 4(b)(3), Florida Constitution (1980), and Florida Rule of Appellate Procedure 9.100. This action stems from a judgment awarded petitioners in the total amount of $365,-400 plus costs in a negligence action against Dade County. The county satisfied the judgment to the extent authorized by section 768.28(5), Florida Statutes (1981), by making payment of $100,000 to the petitioners. Thereafter the Legislature of the State of Florida enacted chapter 83-393, 1983 Fla.Laws 117, directing payment by the county of an additional sum of $270,-329.95 to satisfy the total judgment. The county refused to pay the additional sum.

A writ of mandamus will be granted only when there is no other adequate remedy available to a petitioner. Shevin ex rel. State v. Public Service Commission, 333 So.2d 9 (Fla.1976); State ex rel. Long v. Carey, 121 Fla. 515, 164 So. 199 (1935); School Board of Lee County v. Malbon, 341 So.2d 523 (Fla. 2d DCA 1977); Laundry Public Health Committee v. Board of Business Regulation, 235 So.2d 346 (Fla. 1st DCA 1970). Because there are other adequate remedies available to the petitioner we decline to issue the writ. In so doing we do not reach the merits of the petition, but hold only that the availability of alternative relief precludes resort to the extraordinary writ of mandamus in this court. See Carey.

Petition denied.


author: NIMMONS, Judge.

text:
    Freddie Lee ATKINS, Appellant, v. GREENHUT CONSTRUCTION COMPANY, and United States Fidelity and Guaranty Company, Appellees.
    No. AK-194.
    District Court of Appeal of Florida, First District.
    Nov. 23, 1983.
    Rehearing Denied April 5, 1984.
    See also, 388 So.2d 1121.

      Thomas W. Davis of Barton, Cox & Davis, Gainesville, for appellant.
    Jack A. Langdon of Jones & Langdon, Gainesville, for appellees.
   NIMMONS, Judge.

Atkins appeals the deputy commissioner’s order denying his request for modification of a previous compensation order entered on August 1, 1979. Claimant sought temporary total or temporary partial disability and other benefits. We affirm in part and reverse in part.

Atkins, a manual laborer, was injured in a compensable accident on November 15, 1977. He sustained an injury to his right hand as he was assisting in wrapping cables around a tractor so that it could be lifted and loaded onto the back of a truck. As the tractor was lifted, Atkins’ hand was crushed when it was caught between the tractor and cable causing him to be lifted off the ground. The hand failed to heal properly and a mass of tissue grew over the injured area. This mass was first surgically removed by Dr. Shaw in 1978.

Atkins later came under the care of Dr. Furlow, a plastic and reconstructive surgeon, who assigned a permanent impairment rating of 14% of the arm. He diagnosed Secretan’s Disease and recommended against further surgery.

The initial hearing on the accident was held July, 1979, at which time it was stipulated that the accident was compensable under the workers’ compensation law. The employer/carrier accepted Atkins as permanently partially disabled to the extent of 14% of the arm. At the initial hearing, Atkins claimed entitlement to a rating greater than 14% of the arm by reason of merger with a pre-existing back injury to cause a greater permanent partial disability (PPD) or permanent total disability (PTD). In his August 1, 1979, order, the deputy commissioner ruled against Atkins’ claim for benefits in excess of the 14% PPD. The order was appealed and affirmed without opinion. Atkins v. Greenhut Construction Company, 388 So.2d 1121 (Fla. 1st DCA 1980).

Subsequent to the July, 1979, hearing, Atkins developed further difficulty with his hand. Dr. Shaw (an authorized physician) referred Atkins to Dr. Dell, the chief of hand surgery at Shands Teaching Hospital in Gainesville, in order “to see what his feelings are with respect to consideration for excision of this mass.”

Dr. Dell saw Atkins on two occasions and his bills and reports were properly submitted to and paid by the carrier. Dr. Dell, who agreed with the diagnosis of Secre-tan’s Disease, recommended surgery on Atkins’ hand. The carrier informed Dr. Dell by letter that no authorization would be given without further information concerning Atkins’ condition. Dr. Dell proceeded to excise the mass from Atkins’ hand in February, 1980, and billed the carrier therefor. The carrier has refused to pay such bills on the grounds that he was not authorized.

The condition of Atkins’ hand did not improve. Due to the frequent breakdown of the scar tissue, Atkins’ hand was in a cast from February, 1980, through August, 1980. Thereafter, when Atkins returned to work, his scar tissue broke down again. Atkins required further care for infection and another cast. By this time, the scar tissue was beginning to adhere to the tendons causing a limitation of range of motion in the hand.

Atkins filed his petition for modification on April 20, 1981, based upon the change of condition in his hand. This petition also sought payment of medical bills for Shands and Dr. Dell. Atkins filed a claim for additional benefits on July 23, 1981. A hearing was held September 28, 1981.

In urging affirmance of the deputy’s order denying Atkins’ petition for modification, E/C asserts that the worsened condition of Atkins’ hand was attributable to self-infliction. Although there was some speculation in the medical records to that effect, the evidence does not support such a conclusion. At one point, Dr. Dell, described Atkins’ hand condition as one which “may be a self-inflicted type of injury with recurrent swelling and such; it may be a self-mutilation type of a problem.” The E/C also points to a report of the doctor who performed an abscess drain in June 1980: “[TJhere is some suspicion that the patient may be self-mutilating himself for the chronic infections he has suffered and slow healing of the wound.”

The law presumes, absent substantial evidence to the contrary, that an injury is not occasioned by the willful intention of the employee to injure himself. Section 440.26, Florida Statutes. We assume the deputy applied the principle inasmuch as his order contains no finding of self-mutilation, there being no competent substantial evidence to support such a finding.

The other principal argument advanced by the E/C for affirming the deputy’s ruling denying the modification petition is the deputy’s finding of no change of condition because, as the deputy said, “I specifically noted that the claimant testified that, at the time of the hearing [on claimant’s modification petition], his hand was not as swollen as it was at the time of [the initial hearing].” However, it does not follow that simply because his hand, on the day of the hearing in September, 1981, was less swollen than it was at the initial hearing over two years earlier, Atkins’ hand cannot, therefore, be regarded as having developed an adverse change of condition after the initial hearing.

The evidence clearly established the tissue breakdown in Atkins’ hand, the need for excising the mass and the hospitalization for surgery. There was no competent substantial evidence to support a contrary determination. Atkins was entitled to a modification based upon change of condition pursuant to Section 440.28.

Where there is unrebutted testimony that claimant has been hospitalized after MMI, due to a compensable injury, it is error to deny TTD benefits at least for the hospitalization period. Pastora Rodriguez v. Miami Baking Company, Inc., et al, 430 So.2d 955 (Fla. 1st DCA 1983). Further, TTD benefits for a period of recuperation following a curative surgical procedure necessitated by a compensable injury are properly awardable, Smitty’s Coffee Shop v. Florida Industrial Commission, 86 So.2d 268 (Fla.1956); Chapel v. Broward, 112 So.2d 923 (Fla.App.1959). On remand, further proceedings should be conducted to include the determination of the point in time Atkins’ temporary disability began; the period of time Atkins’ temporary disability extended; and the point in time Atkins thereafter reached maximum medical improvement.

Appellant also asserts that it was error for the deputy to deny payment of the medical bills of Dr. Dell and Shands Hospital for the surgery performed by Dr. Dell in February, 1980. We affirm the deputy on this point. In McKinney v. McKinney Farms, 380 So.2d 469 (Fla. 1st DCA 1980), we held that where referral of a claimant to a doctor is made by an authorized treating physician in exercise of his own judgment, and not at the request of the claimant, that referral and subsequent hospitalization and referral of the claimant to another doctor were in normal progression of authorized treatment, and the carrier is responsible for them. But we stated:

For future cases, however, we suggest that the authorized physician contact the carrier and secure authorization before subjecting it to financial responsibility for such treatment and hospitalization.

380 So.2d at 470. We subsequently held in Jones v. Plantation Foods, 388 So.2d 590 (Fla. 1st DCA 1980), that the implied authorization which results when an authorized physician refers a claimant to another doctor extends to evaluation and not treatment. When the insurance carrier was notified that additional surgery on Atkins’ hand was recommended by Dr. Dell, it sent a letter advising that “... before any authorization will be given under workmen’s compensation for this surgery we will have to have some explanation from you giving us your professional opinion as to why this is now necessary.” We are of the view that the deputy did not err in finding the letter sufficiently clear to put Dr. Dell on notice that the carrier was not authorizing the surgery. This was not a situation where the carrier had refused to authorize any treating physician as Drs. Shaw and Furlow were still authorized. That portion of the deputy’s order denying Atkins’ claim for payment of medical bills is therefore AFFIRMED.

On remand the deputy shall also consider any claim for attorney’s fees and costs that may be proper in that Atkins has prevailed in seeking benefits.

Affirmed in part and Reversed in part and Remanded for proceedings consistent with this opinion.

BOOTH and WIGGINTON, JJ., concur.

      . Atkins urges on appeal that Dr. Dell responded in writing to the carrier's letter. However, no such letter from Dr. Dell was offered in evidence and there was no testimony presented before the deputy regarding the existence of any such letter from Dr. Dell.


text:
    Nelson WATTS, Petitioner, v. STATE of Florida, Respondent.
    No. 83-2334.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for petitioner.
   PER CURIAM.

Petitioner seeks review of a decision of the Circuit Court of the Tenth Judicial Circuit, in and for Polk County, which affirmed a judgment and sentence of the County Court of Polk County. Petitioner was found guilty of loitering and prowling in violation of section 856.021, Florida Statutes (1981). On appeal to the circuit court, petitioner challenged section 856.021 as being facially unconstitutional for vagueness. Although the Florida Supreme Court considered such a challenge and rejected it in State v. Ecker, 311 So.2d 104 (Fla.1975), we are asked now to rule otherwise as a result of the recent decision of the United States Supreme Court in Kolender v. Lawson, — U.S. -, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), which declared the California loitering statute unconstitutionally vague on its face. While some of the authorities and reasoning relied upon in Ecker have now been disapproved in Kolender, we feel that section 856.021 is so much more definitive than the California statute as to render the result in Ecker still valid.

The petition is denied.

DANAHY, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Jose CONTRERAS-GALLARDO, Appellee.
    No. 82-2591.
    District Court of Appeal of Florida, Second District.
    Nov. 23, 1983.
    Jim Smith, Atty. Gen., Tallahassee and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellant.
    Harold H. Moore, Sarasota, for appellee.
   PER CURIAM.

Affirmed. See Miller v. State, 403 So.2d 1307 (Fla.1981); State v. Lavazzoli, 434 So.2d 321 (Fla.1983).

HOBSON, A.C.J., RYDER, J., and PAD-GETT, J. ROGERS, Associate Judge, concur.


author: ROBERT P. SMITH, Jr., Judge. BOOTH, Judge,

text:
    Bruce E. SCOTT, Appellant, v. Bill GUNTER, in his official capacity as Insurance Commissioner, Department of Insurance, State of Florida, Appellee.
    No. AI-302.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1983.

      Raymond T. Elligett, Jr., F. Ronald Fra-ley and Charles P. Schropp of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellant.
    Jim Smith, Atty. Gen., and Susan E. Gamble Smathers, Asst. Atty. Gen., and Mitchell Franks, Asst. Atty. Gen., Tallahassee, for appellee.
    James N. McConnaughhay and Arthur C. Beal, Jr., McConnaughhay & Roland, P.A., Tallahassee, for intervenor Fla. Ass’n of Ins. Agents.
   ROBERT P. SMITH, Jr., Judge.

Scott appeals from a circuit court declaratory judgment holding that section 626.-731(2), Florida Statutes (1981), does not violate the privileges and immunities and equal protection clauses of the United States Constitution, article IV, section 2, clause 1, article XIV, section 1, nor the basic rights clause of the Florida Constitution, article I, section 2.

By vocation Scott is an insurance agent and a full-time employee of Arnica Insurance Company, which writes insurance in all 50 states. For several years, Arnica employed Scott as an underwriter at Arni-ca’s Providence, Rhode Island, office, and then at Scott’s request transferred him to its office in Coral Springs, Florida, in June or July 1981. In order to perform in Florida the sort of work he performed for Arni-ca in Rhode Island, for which Arnica deems him qualified, Scott required licensing under chapter 626 as a general lines agent. As the designation implies, a general lines agent is empowered to represent an insurer or insurers in several fields of insurance risk, rather than just one; and the distinguishing authority of such an agent, compared to specialists in a single field or restricted licensees such as solicitors or service representatives, is to “bind coverage” or effect contracts between insureds and insurers, covering any of those risks. See ch. 626, pt. I and II, Fla.Stat. (1981); Aetna Life & Casualty Co. v. Little, 384 So.2d 213 (Fla. 4th DCA 1980).

Though Scott was otherwise fully qualified for examination and licensing as a general lines agent upon his arrival in Florida — so it was agreed before the trial court —Scott’s application for licensing was denied because, as a newcomer, he did not meet the durational residency prerequisite for licensing as a general lines agent. Section 626.731(2) required that “the applicant has been a bona fide resident of this state for at least 1 year last past, and will actually reside in this state at least 6 months out of each year .... ” Though Scott and his family fully intend to remain permanent residents of Florida, the statute denied Scott a license for the one-year period of waiting in residence.

Having no license to act on his own authority, Scott continued his duties in Arni-ca’s office on a restricted basis and under supervision of another Arnica employee who held a general lines agent license. In his circuit court testimony Scott described the limitations on his work in this way:

As I understand it, and in practice what is affecting me now in my position is that I cannot bind coverage, I cannot discuss questions about insurance policies with [insureds or prospective insureds], I cannot write letters under my name in regard to insurance policies, binding of coverage, binding of additional coverage.

After the circuit court entered its judgment, and while Scott’s appeal was pending, two things happened that the Department contends moot the case and require its dismissal. In June 1982 Scott completed a year’s residency in Florida and so met the durational residency requirement of section 626.731(2). And the 1982 legislature, by an act effective October 1, 1982, amended the statute to allow departmental waiver of the residency prerequisite in certain circumstances, which were in fact Scott's circumstances. Ch. 82-243, § 220, Laws of Fla.; § 626.731(l)(b), Fla.Stat. (1982 Supp.):

(b)(2) That the applicant has been a bona fide resident of this state for at least 1 year last past, except that the department, in its discretion, may waive the requirement for 1-year residence in this state if the applicant is an employee of an agency under the supervision of a currently licensed general lines agent and' will actually reside in this state at least 6 months out-of each year-

When modifying the durational residency prerequisite, it will be noted, the legislature also entirely deleted the continuing requirement that licensed general lines agents “reside in this state for at least 6 months out of each year.”

Earlier in our consideration of this case we denied the Department’s mootness motion. We adhere to that ruling now. Although Scott achieved a year’s residency in the summer of 1982, and so was entitled to licensing under the statute as it existed before the 1982 amendment, the case was then fully mature in this Court and under consideration. The constitutionality of the residency requirement remained a significant question, if not to Scott then to others. Given the difficulty of pressing constitutional litigation through the Florida judicial system within a year, to have dismissed the appeal as moot, because the durational residency requirement no longer barred Scott, would leave a persistent question, capable of repetition yet evading review. Grant v. Credithrift of America, Inc., 402 So.2d 486, 488 (Fla. 1st DCA 1981); Ocala Star Banner Corp. v. Sturgis, 388 So.2d 1367, 1369 (5th DCA 1980); see also Hicklin v. Orbeck, 565 P.2d 159, 162 (Alaska 1977), rev’d on other grounds, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978).

Nor does the 1982 amendment, effective October 1, moot Scott’s appeal. Because Scott satisfied the one-year residency requirement before the amendment became effective, the Department has had no occasion to determine whether, in the exercise of its discretion, Scott should be licensed under the terms of the statutory amendment. The constitutionality of the dura-tional residency requirement must still be determined, for that prerequisite is yet a part of the statute. It has no less force as law because the Department now has discretion, but evidently no duty, to waive the requirement for the benefit of employees of an agency “under the supervision of a currently licensed general lines agent.” Even in the case of applicants so supervised, the statutory norm is still a one-year prior Florida residency, and if that requirement is unconstitutional, the Department’s discretion to make exceptions does not save the statute.

We find that the 1981 statute violates the privileges and immunities clause of the United States Constitution, article IV, section 2, clause 1, which assures that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” We reach no other ground of Scott’s complaint about the statute.

Florida’s durational residency prerequisite to licensing general lines insurance agents plainly discriminates against otherwise qualified nonresident insurance agents, wishing to move with their families to Florida, and recent arrivals. Longer-term Florida residents are given preferred treatment in access to a livelihood in this particular vocation; they are extended immediate admission to the examination and immediate licensing if found qualified. The Department offers a twofold justification or explanation for this discrimination: first it is said that the statute tends to assure that persons licensed as general lines agents, the most responsible and sensitive kind of agent in Florida’s licensing hierarchy, are familiar with the special characteristics of Florida’s insurance law and market practices; second, that the statute tends to assure that persons so licensed will be permanent residents, not “here to-day, gone tomorrow,” as the Department says.

The first of these stated goals, obviously, is a worthy state interest. We assume that the second is also permissible in constitutional terms, though the decisions to be discussed, invalidating straightforward residency requirements, cast some doubt on that. Accepting those stated purposes, however, the durational residency requirement nevertheless violates the privileges and immunities clause because newcomers to Florida are not convincingly shown to be a peculiar source of the problems ostensibly remedied, ignorance and transience, and more especially because the means selected to address those problems has no significant relationship either to the attributed goal of the statute or to the perceived evils addressed. Lacking the requisite close fit to the problems to be remedied, the statute has the effect of preferring old-timer Floridians to newcomers simply because of their residency histories. That is precisely what is preempted by the privileges and immunities clause of the United States Constitution.

Three decisions of the United States Supreme Court provide the standards by which state residency requirements in business licensing statutes, and durational residency prerequisites particularly, are to be analyzed for compliance with the privileges and immunities clause:

In 1948, Toomer v. Witsell described the privileges and immunities clause as “designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy.” “[I]t was long ago decided,” the Court stated, “that one of the privileges which the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State.” Therefore, while disparities in treatment for which “there are perfectly valid independent reasons” are not forbidden, discrimination against citizens of other states is barred “where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” From this it follows that significant disparities in the treatment of nonresidents, seeking business opportunities within the state on parity with residents, must be based upon “something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed,” and, beyond that, “the inquiry in each case must be ... whether such reasons do exist and whether the degree of discrimination bears a close relation to them.” In Toomer, South Carolina’s licensing fee for nonresident shrimpers was 100 times greater than the fee for residents, so the Court, accepting South Carolina’s stated purpose of controlling excessive trawling, judged the discrimination “so great that its practical effect is virtually exclusionary.” Even assuming that nonresident shrimpers were somehow the source of excessive trawling, because of their larger boats or their greater burden upon South Carolina’s enforcement program, the Court declared that less restrictive means of regulating were available and that “a remedy so drastic as to be a near equivalent of total exclusion” was not justified.

In 1978, Baldwin v. Montana Fish and Game Commission refined the analysis by showing what kinds of activities within a state, by nonresidents, are not protected by the privileges and immunities clause. Elk hunting “is a recreation and a sport,” the Court said, “not a means to the nonresident’s livelihood” and therefore not “fundamental” to citizenship as are the trade and business privileges of which Justice Washington spoke in Corfield v. Coryell, 6 P.Cas. 546, 551-52 (C.C.E.D.Pa.1825) (No. 3,230). Therefore, Montana’s disparate regulation of nonresident elk hunters “simply does not fall within the purview of the Privileges and Immunities Clause.”

A month later, Hicklin v. Orbeck invalidated Alaska’s “across-the-board grant of a job preference to all Alaskan residents” on the Trans-Alaska pipeline and in doing so emphasized two elements of the privileges and immunities analysis of prior decisions, including Toomer. The Court, again requiring that discriminatory measures be based upon a “showing ... sufficient to indicate that nonresidents were ‘a peculiar source of evil,’ ” doubted that Alaska’s high unemployment was due to the influx of nonresidents, rather than to the illiteracy and geographic remoteness of the state’s residents, including its Eskimo and Indian population. But assuming that nonresidents were shown to be a peculiar source of unemployment among Alaskans, the Court said, the “across-the-board” discriminatory measure, favoring all Alaska residents (including educated citizens who had never been unemployed) over all nonresidents of Alaska, was not “closely tailored” to aid the unemployed Alaskans, and so was a prohibited discrimination against nonresidents. Thus the Court struck down Alaska Hire’s simple residency requirement, which the Alaska Supreme Court had upheld while nullifying as more obviously unconstitutional, denying equal protection of the law, the same statute’s durational residency prerequisite for favored status. Hicklin v. Orbeck, 565 P.2d 159 (Alaska 1977).

Taken together, the principles of Toomer, Baldwin and Hicklin are a formidable constitutional barrier against the discriminatory treatment of nonresidents by statutes controlling access to vocational opportunity within a state. As “[t]he right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade” is one of the “fundamental” rights of United States citizenship, the privileges and immunities clause secures to nonresidents of Florida, desiring to pursue lawful occupations in Florida, the same substantial privileges and immunities that Florida extends to its own residents. Such dispensation as constitutionally exists for treating nonresidents differently, to their disadvantage, is reserved for discrete problems discretely remedied, “where the very fact of their nonresidence demonstrably creates problems for legitimate state objectives that cannot be remedied in less discriminatory ways.” Stalland v. South Dakota Board of Bar Examiners, 530 F.Supp. 155, 159 (D.S.D.1982), quoting L. Tribe, American Constitutional Law, § 6-33 at 410 (1978).

Employing those principles, recent decisions involving bar admissions and public hiring have consistently invalidated state residency prerequisites of both the simple and durational types. Piper v. Supreme Court of New Hampshire, 539 F.Supp. 1064 (D.N.H.1982) (residency required at time of bar admission); Stalland, supra, (residency required at time of bar admission); Strauss v. Alabama State Bar, 520 F.Supp. 173 (N.D.Ala.1981) (three weeks prior residency before bar exam); Noll v. Alaska Bar Association, 649 P.2d 241 (Alaska 1982) (Alaska domicile required of applicants for bar admission); Sheley v. Alaska Bar Association, 620 P.2d 640 (Alaska 1980) (30 days prior residency required before bar exam); Gordon v. Committee on Character and Fitness, 48 N.Y.2d 266, 397 N.E.2d 1309, 422 N.Y.S.2d 641 (1979) (six months prior residency required of applicants for bar admission); Kuczka v. Clark, 110 Misc.2d 273, 441 N.Y. S.2d 854 (N.Y.Sup.Ct.1981) (four months prior residency required of applicants for municipal jobs), rev’d on other grounds, 86 A.D.2d 980, 448 N.Y.S.2d 325 (N.Y.App.Div.1982) (applicant above age limit; residency issue not reached).

Although the residency requirements in Toomer, Baldwin and Hicklin were of the simple not the durational sort, the principles of those decisions more surely condemn durational residency requirements than other kinds, simple or continuing. As the Alaska Supreme Court said in Sheley, refuting the Alaska Bar Association’s contention that Hicklin did not involve and therefore did not affect durational residency requirements, “[Rjather than alleviating constitutional problems, durational residency requirements exacerbate them because such requirements discriminate against short-term residents as well as nonresidents.” The particularly “obnoxious” qualities of durational residency requirements are evident. If, as Toomer held, South Carolina may not substantially disadvantage nonresident shrimping within the state by fees greater than necessary to “compensate the State for any added enforcement burden [nonresident shrimpers] may impose or for any conservation expenditures from taxes which only residents pay,” then there is even less justification for so disadvantaging residents whose only distinction is that they recently were nonresidents. And if, as Hicklin held, Alaska’s disfavoring of nonresident jobseekers offended the privileges and immunities clause because Alaska could not show they were peculiarly the cause of unemployment among Alaskan residents, then differentiating in employment eligibility between Alaskan residents of more than a year, and those of less, would be still more tenuous.

Thus understanding that Bruce Scott is not a Rhode Islander but a Floridian recently arrived from Rhode Island, we more clearly appreciate, through these equations, that the privileges and immunities secured by the Constitution are not those of nonAlaskans, or nonCarolinians, or nonFloridians, but of American citizens, whether resident or nonresident of a particular state.

By these standards the one-year dura-tional residency requirement of section 626.731(2), Florida Statutes (1981), must be held to violate the privileges and immunities clause of the United States Constitution.

We begin with the Toomer/Hicklin inquiry of whether nonresidents or, more pertinent to this case, recent arrivals to Florida constitute a peculiar source of the evil at which the statute is aimed. As stated earlier, the “evils” or problems addressed by this statute, according to the Department’s evidence and argument, are two: first, that Florida’s standards of licensing general lines insurance agents require a degree and sort of familiarity with Florida’s unique insurance market that cannot adequately be tested for by conventional examinations and, moreover, cannot be gained except by experience; and second, that transiency among general lines agents, “here today and gone tomorrow,” creates serious problems for Florida insureds holding policies that require continuing service.

Accepting at face value these perceptions of the evils or problems to be treated, or the state interests to be served by statutory regulations, there is no substantial evidence in the record tending to show that recent arrivals to Florida are, compared to Florida residents of more than a year’s standing, a peculiar source of either perceived problem. Compared with Florida residents whose only credentials are their prior residency and a wish to be admitted to the licensing examination, there is no significant evidence that recent arrivals to Florida — by which is meant persons applying for admission to the examination within a year of taking residency here — are either characteristically less experienced in Florida’s insurance “nuances,” to use a term employed by one of the witnesses, or more given to transience, than their counterparts who by virtue of longer Florida residence are admitted to the examination upon application, without further ado.

The “fit” or appropriateness of the dura-tional residency requirement to the perceived evil or problem to be remedied is more tenuous still. Surely we may credit the Department’s assertion that anyone newly exposed to a complex regulated industry will be less competent in its details than one who has had a year or more of actual experience in the field. Florida may surely differentiate between applicants having experience and those having none, when deciding who shall be licensed as general lines agents. Disparate treatment of applicants based upon experience would not offend the privileges and immunities clause, even if the regulation were to affect relatively more nonresidents than residents, for the measure would bear a close relation to the problem addressed, inexperience. But what Florida may not constitutionally do is to differentiate between those who have merely passed a year here in Florida and those who have not.

The Department professes that requiring recent arrivals to choose between a year’s idleness or employment outside the insurance industry, on the one hand, and unlicensed insurance apprenticeship, on the other, encourages the latter choice and affords a prospective agent valuable experience in the Florida market. This seems a very problematic strategy; there is no evidence that this indirect coercion of new arrivals has the intended effect, except possibly with those who need it least, experienced applicants like Scott who come to Florida with prior arrangements for employment. No reason is suggested why a one-year wait induces wholly inexperienced applicants to enroll in apprenticeship programs. More pertinent for present purposes, however, the strategy entirely misses the great body of insurance greenhorns whose mere prior Florida residency is accepted in lieu of the desired apprenticeship. If experience through apprenticeship is the chosen solution for the perceived problem, Florida has shown no reason why it should be required of new residents, by indirect coercion, but not of equally inexperienced longer term residents. See La Tourette v. McMaster, 248 U.S. 465, 39 S.Ct. 160, 63 L.Ed. 362 (1919).

Nor is there a sufficient showing here that recent arrivals to Florida are, compared to residents of longer duration, peculiarly liable to leave. For two good and sufficient reasons we do not address the constitutionality of a continuing residency requirement: Scott does not contest such a requirement, as he intends to remain permanently; and there is no such requirement in this statute to contest. The 1981 statute in terms required continuing residency for only six months per year, and the 1982 amendment deleted that requirement entirely. Thus, if the problem to be addressed is one of transiency — licensed general lines agents who are here today, writing policies, and gone tomorrow, neglecting insureds — a requirement of continuing residency, for all its constitutional difficulty, would be a more precise and less restrictive measure than this one, which requires a year’s residency before licensing and none at all afterwards. Compare Noll, where the statute required residency at the time of registration for admission, but “[o]nce admitted, a member of the bar is not required to remain domiciled in Alaska.”

Moreover, even if Florida residents of more than one year could be shown more stable and reliable than newcomers, “[tjhere are numerous less discriminatory means by which [the Department] can protect the state’s valid interest_” Stalland, supra, 530 F.Supp. at 160. Section 626.731(3), Florida Statutes (1981), already required any general lines agent to “maintain a place of business accessible to the public” within this state, and this requirement could be strengthened. If the Department has serious concerns about the personal stability of newcomers, it could augment the interviewing process already required under section 626.201, require more detailed character and credit reports than contemplated by section' 626.521 or demand proof of good character in the form of affidavits. Bonding also offers a less restrictive alternative. A blanket one-year durational residency requirement, however, clearly is not “closely tailored” to address the speculative evil new Floridians are alleged to pose.

Finally, we have considered and rejected the possibility of sustaining the Florida statute because it allows newcomers to work in the insurance field otherwise than as general lines agents. The discrimination practiced is a substantial one, depriving fully experienced insurance workers like Scott of authority to bind coverage, to write many kinds of insurance and to supervise other licensees. This handicap is particularly onerous because it persists for a full year. A national company like Arnica rightly views this type of discrimination as a parochial trade barrier of the sort the privileges and immunities clause was designated to eliminate. Moreover, the availability of other employment in the same field or one closely related to it — for the would-be New York lawyer in Gordon, for pipeline workers in Hicklin, for shrimpers in Toomer — did not save those discriminatory statutes or even figure in those courts’ analysis. While waiting out the six-month residency requirement discussed in Gordon, for instance, the would-be New York lawyer presumably was free to work in the legal profession in some capacity under the supervision of New York attorneys. Yet the court did not even mention that possibility. We must conclude that denial of a general lines agent license is a significant burden on the usefulness of insurance employees newly transferred to this state.

The judgment of the circuit court is therefore REVERSED and section 626.-731(2), Florida Statutes (1981), is found to violate the privileges and immunities clause of the United States Constitution.

NIMMONS, J., concurs.

BOOTH, J., dissents, with opinion.

BOOTH, Judge,

dissenting:

I respectfully dissent from the opinion of my colleagues and would adhere to the judgment of the learned trial court, which judgment is as follows:

ORDERED AND ADJUDGED that Section 626.731(2), Florida Statutes, is hereby declared constitutional and not in violation of the constitutional provisions alleged by the plaintiff. LaTourette v. McMaster, 348 [248] U.S. 465, 63 L.Ed. 362, 39 S.Ct. 160 (1919).

Appellant challenges the constitutionality of Section 626.731(2), Florida Statutes, providing the following requirement for licensing as a general lines agent:

That the applicant has been a bona fide resident of this state for at least one year past, and will actually reside in this state for at least six months out of each year.

Appellant does not challenge residency per se as a requirement for licensing, but contends the durational (one-year) feature of the statutory residential requirement is discriminatory and unreasonable.

The majority holds the one-year residency requirement violates the privileges and immunities clause. I disagree. Section 626.731(2), Florida Statutes applies to citizens/residents of all states. In order to violate the privileges and immunities or equal protection clauses, it should be shown that “residents” of Florida can be licensed even though they have been residents for less than a year, whereas “nonresidents” must reside in the state for one year before eligible. Appellant, however, has failed to show that the statute, on its face or in actual practice, discriminates against nonresident applicants as a class as to the one-year requirement.

Appellee’s contention that applicants for general lines agent’s license is a “class” impermissibly discriminated against, as compared to applicants for other professional or quasi-professional licensing, is also without merit. The classification is clearly a reasonable one for the exercise of regulatory powers.

The statute being nondiscriminatory, this court is not required to scrutinize the legitimate State concerns furthered by the residency requirement, but on that point too I would hold that, considering the nature of the insurance industry as peculiarly subject to State regulation and affected with public interest and the characteristics of services performed by a general lines agent, the residency requirements of the Act are not unrelated to the regulatory purpose of Chapter 626, Florida Statutes. The trial court heard and considered the testimony bearing on the legitimate State interest served by the legislation, and the judgment below is supported on that basis by the record.

The decision of the United States Supreme Court in LaTourette v. McMaster, 248 U.S. 465, 39 S.Ct. 160, 63 L.Ed. 362 (1919), is correctly cited by the trial court in support of its decision upholding the validity of the Florida statute. In LaTour-ette, supra, the South Carolina statute in question required the applicant for a license as an insurance broker be a resident of South Carolina and have been licensed as an insurance agent of that state for at least two years. The United States Supreme Court upheld the statute based on the nature of the industry regulated, and the reasonableness of the residency requirement in relation to that regulation (248 U.S. at 467-68, 39 U.S. at 161), holding that insurance is “clothed with the public interest,” and:

[I]t necessarily follows that, as insurance is affected with the public interest, those engaged in it or who bring about its consummation are affected with the same interest and subject to the same regulation as it is. A broker is so engaged, — is an instrument of such consummation .... As said by the Supreme Court of the state:
“It is important for the protection of the interest of the people of the state that the business should be in the hands of competent and trustworthy persons.” ... And we may say that this result can be more confidently and completely secured through resident brokers.

The Supreme Court in LaTourette, supra, also found that the statute did not discriminate against citizens .of other states, adopting the lower court’s interpretation (248 U.S. 469, 39 S.Ct. 162):

A citizen of any state of the Union who is a resident of this state and has been a licensed insurance agent of this state for at least two years may obtain a brokers license; on the other hand, a citizen of this state, who is not a resident of this state, and has not been a licensed insurance agent of this state for two years, may not be licensed. No discrimination is made on account of citizenship. It rests alone on residence in the state and experience in the business.

The record supports a determination that the one-year residency requirement is nondiscriminatory and related to the furtherance of legitimate State interests. The United States Supreme Court in the La-Tourette case held the court is “not required to be sure of the precise reasons for ... [the exercise of the legislative judgment] or convinced of the wisdom of its exercise.” As frequently stated, the court should not substitute its judgment for that of the Legislature.

I would affirm the judgment below.

      . Hicklin v. Orbeck, discussed in the text for its pertinence on the merits of this constitutional challenge, is also relevant to the mootness question. There the Alaska Supreme Court addressed the one-year residency requirement notwithstanding that during the litigation the complainants may have attained a year's residence. Characterizing the issue as "capable of repetition, yet evading review," the court decided the issue. Hicklin v. Orbeck, 565 P.2d 159, 162 (Alaska 1977), rev’d on other grounds, 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978).

      . The statute as amended may be subject to criticism that it lacks constitutionally required legislative standards for exercise of the Department's discretion in regard to enforcing the du-rational residence requirement in the case of persons supervised by licensed general lines agents. See Askew v. Cross Key Waterways, 372 So.2d 913 (Fla.1978). On this subject we intimate no opinion.

      . 334 U.S. 385, 68 S.Ct. 1156, 92 L.Ed. 1460 (1948).

      . 334 U.S. at 395, 68 S.Ct. at 1162, 92 L.Ed. at 1471.

      . 334 U.S. at 396, 68 S.Ct. at 1162, 92 L.Ed. at 1471.

      . 334 U.S. at 397, 68 S.Ct. at 1162, 92 L.Ed. at 1472.

      . 334 U.S. at 396, 68 S.Ct. at 1162, 92 L.Ed. at 1471.

      . 334 U.S. at 396-97, 68 S.Ct. at 1162, 92 L.Ed. at 1471.

      . 334 U.S. at 398, 68 S.Ct. at 1163, 92 L.Ed. at 1472.

      . 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978).

      . 436 U.S. at 388, 98 S.Ct. at 1862-63, 56 L.Ed.2d at 368.

      . 437 U.S. 518, 98 S.Ct. 2482, 57 L.Ed.2d 397 (1978).

      . 437 U.S. at 528, 98 S.Ct. at 2488, 57 L.Ed.2d at 406.

      . 437 U.S. at 527, 98 S.Ct. at 2488, 57 L.Ed.2d at 405.

      . Corfield v. Coryell, 6 F.Cas. 546, 552 (C.C.E.D.Pa.1825) (No. 3,230).

      . It is a coincidence that the decided cases had principally to do with bar admissions, or at most suggests the kind of prospective licensee who is least apt to acquiesce in groundless disfavored treatment. At any rate it is constitutionally insignificant that those invalid statutes pinched lawyers who were nonresident, or recently arrived, rather than insurance agents or workers in some other licensed class. New residents in a state are not constitutionally more privileged to be licensed as lawyers than as something else. Indeed, something opposite to that is suggested by the Department’s argument here that the insurance business is especially affected with state interests and especially susceptible to licensing regulations of this kind, disadvantaging nonresidents. We cannot accept the idea that the Constitution affords the state a wider berth in regulating general lines insurance agents than in regulating lawyers.

      . 620 P.2d at 644-45, n. 26. The court also noted that durational residency requirements "create equal protection problems not generated by simple residency requirements." Similarly, the Florida Supreme Court recognized in Florida State Board of Dentistry v. Mick, 361 So.2d 414, 415 (Fla.1978), the greater presumption of constitutional invalidity that the equal protection clause attaches to durational residency requirements; such requirements must withstand strict scrutiny for "a compelling state interest,” the Court said. Though the term "fundamental” is used in reference both to rights protected by the equal protection clause and to rights protected by the privileges and immunities clause, the term apparently has a broader application under the latter. See L. Tribe, American Constitutional Law § 6-33 at 411 (1978): "If the privileges and immunities clause as currently construed does not precisely duplicate the equal protection clause of the fourteenth amendment, the major reasons are that the former does not protect aliens and corporations, and that non-residence and out-of-state citizenship have not in fact been deemed suspect classifications for equal protection purposes.”

        .Strauss, supra, 520 F.Supp. at 178:
      It is not just the administrative interpretation implementing a three-week residence requirement that this court deems obnoxious; the requirement of Rule IV itself that one certified to take the examination must be a bona fide resident of Alabama without respect to the time period for such residence violates the privileges and immunities clause. See Hicklin v. Orbeck ......

      . 334 U.S. at 399, 68 S.Ct. at 1163, 92 L.Ed. at 1473.

      . 649 P.2d at 243.

      . The parties disagree as to whether the South Carolina Civil Code, Chapter XLVIII (1922), considered in LaTourette v. McMaster, supra, imposed a "durational” residency requirement on those applying to be insurance brokers within the state. A review of the statutes of that state shows that the effect of requiring an applicant to be a licensed agent of the state "for at least two years" is a residential requirement since the agent can only work in the State of South Carolina if he resides there. The net result of both the South Carolina and the Florida statutes is to impose a combination durational residency and educational prerequisite for licensing. See, State v. Fireman's Insurance Company, 164 S.C. 313, 162 S.E. 334 (1931).

      . LaTourette v. McMaster, 248 U.S. 468, 39 S.Ct. 161 (1919).


text:
    Erin Patrick FINAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-1018.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1983.

      Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

AFFIRMED. See Burkett v. State, 400 So.2d 138 (Fla. 5th DCA 1981); State v. Laury, 397 So.2d 960 (Fla. 1st DCA 1981).

BOARDMAN, A.C.J., and GRIMES and LEHAN, JJ., concur.


text:
    Albert E. LOWE, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. 82-2873.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1983.
    Albert E. Lowe, pro se.
    Doris E. Jenkins, Asst. Gen. Counsel, Fla., Tallahassee, Parole and Probation Commission.
   PER CURIAM.

Affirmed. See Rule 23-21.10(4)(a)(l)(h), Florida Administrative Code; DeLoach v. Florida Parole & Probation Commission, 423 So.2d 480 (Fla. 1st DCA 1982), and Griggs v. Florida Parole & Probation Commission, 420 So.2d 367 (Fla. 1st DCA 1982).

BOARDMAN, A.C.J., and GRIMES and LEHAN, JJ., concur.


text:
    Gerald A. DRAKE, Appellant, v. STATE of Florida, Appellee.
    No. 83-1201.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1983.
    Jerry Hill, Public Defender, Bartow, and Allyn Gaimbalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

AFFIRMED. See Kight v. American Eagle Fire Insurance Co., 125 Fla. 608, 170 So. 664 (1936).

BOARDMAN, A.C.J., and GRIMES and LEHAN, JJ., concur.


text:
    DADE COUNTY PUBLIC HEALTH TRUST, d/b/a Jackson Memorial Hospital, Petitioner, v. Ernest ZAIDMAN and Wendy Zaidman, Respondents.
    No. 83-1912.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1983.

      Walton, Lantaff, Schroeder & Carson and Sally R. Doerner, Miami, for petitioner.
    Spence, Payne, Masington & Grossman and Stephen L. Malove and Darlene Stosik, Miami, for respondents.
    Before SCHWARTZ, C.J., and HUB-BART and BASKIN, JJ.
   PER CURIAM.

The order requiring the production of the defendant hospital’s incident reports concerning the instant malpractice claim is quashed because no showing was made below of the “undue hardship” required by Fla.R.Civ.P. 1.280(b)(2) for the discovery of these materials as statutorily designated work product. Sec. 768.41(4), Fla.Stat. (1981); North Broward Hospital District v. Judson, 439 So.2d 946 (Fla. 4th DCA 1983); Associated Medical Institution, Inc. v. Trube, 394 So.2d 563 (Fla. 3d DCA 1981); see, Hartford Accident & Indemnity Co. v. McGann, 402 So.2d 1361 (Fla. 4th DCA 1981); Dade County Medical Association v. Hlis, 372 So.2d 117 (Fla. 3d DCA 1979).

Certiorari granted.


author: SCHEB, Judge.

text:
    Terry Lee WILLIS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2663.
    District Court of Appeal of Florida, Second District.
    Dec. 7, 1983.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Diane Barrs, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Terry Lee Willis was convicted of robbery and first-degree murder and sentenced to concurrent terms of fifteen years and life imprisonment. The trial court retained jurisdiction over twenty-five years of the appellant’s life sentence pursuant to section 947.16(3), Florida Statutes (1981).

We hold that the trial court erred in retaining jurisdiction over the life sentence because a life span is immeasurable. Cordero-Pena v. State, 421 So.2d 661 (Fla. 3d DCA 1982). We note, however, that since appellant was convicted of a capital felony, he is required to serve no less than twenty-five years before becoming eligible for parole. See § 775.082(1), Fla.Stat. (1981).

We have examined appellant’s other points on appeal and find them to be without merit. Accordingly, we vacate the portion of the sentence for first-degree murder wherein the trial court retained jurisdiction for twenty-five years over the life sentence. Otherwise, we affirm appellant’s judgments and sentences.

BOARDMAN, A.C.J., and LEHAN, J., concur.


text:
    Jerry W. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AQ-114.
    District Court of Appeal of Florida, First District.
    Dec. 8, 1983.
    Michael E. Allen, Public Defender, Ronald D. Trow, Asst. Public Defender, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Kathryn L. Sands, Asst. Atty. Gen., Jacksonville, for appellee.
   OPINION ON PETITION FOR REHEARING

PER CURIAM.

On petition for rehearing, we certify that our affirmance, Fla.App., 446 So.2d 103, in this case passed upon the same question we certified to be of great public importance in Rotenberry v. State, 429 So.2d 378 (Fla. 1st DCA 1983), which is:

IF THE STATE HAS THE BURDEN TO PROVE BEYOND A REASONABLE DOUBT THAT A DEFENDANT WAS NOT ENTRAPPED WHEN THAT DEFENSE HAS BEEN RAISED, IS THE GIVING OF THE PRESENT ENTRAPMENT INSTRUCTION AS SET FORTH IN STANDARD JURY INSTRUCTION 3.04(c) ALONG WITH THE GENERAL REASONABLE DOUBT INSTRUCTION SUFFICIENT, NOTWITHSTANDING THE. DEFENDANT HAVING SPECIFICALLY REQUESTED THE COURT TO INSTRUCT THE JURY THAT THE STATE MUST PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS NOT THE VICTIM OF ENTRAPMENT BY LAW ENFORCEMENT OFFICERS?

Accordingly, we adhere to our affirmance and certify the identical question in Roten-berry, as passing upon a matter of great public importance. Mandate in this case will be withheld during the period provided for invoking Supreme Court review and thereafter, if review is sought, pending final disposition by the Supreme Court of Florida of any petition for review.

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


author: ZEHMER, Judge. ZEHMER, Judge.

text:
    Council RUDOLPH, William Windauer, and Floyd Wells, Appellants, v. MIAMI DOLPHINS, LTD., Insurance Company of North America, and The Division of Workers’ Compensation of the Florida Department of Labor & Employment Security, Appellees.
    Nos. AM-381, AN-79 and AN-77.
    District Court of Appeal of Florida, First District.
    Dec. 30, 1983.
    Rehearing Denied March 13, 1984.

      Edward Schroll, Miami, for appellants.
    Adams, Kelley, Kronenberg & Rutledge, Miami, for appellees.
   ZEHMER, Judge.

Three professional football players, Council Rudolph, William Windauer, and Floyd Wells, formerly with the Miami Dolphins football team, appeal from orders denying them worker’s compensation benefits. Each of the appellants was under contract with the Miami Dolphins, Ltd., pursuant to a National Football League Players contract and a collective bargaining agreement between club members of the National Football League and player members of the NFL Players Association. Appellants sustained injuries while in training camp prior to the beginning of the regular football season, and each was subsequently terminated by the Dolphins. They filed separate claims for disability compensation under the Florida Workers’ Compensation Act. Medical benefits had been provided by the Dolphins and were not claimed. Each deputy commissioner denied benefits on the primary ground that section 440.02(l)(c)3, Florida Statutes, excludes professional football players from coverage under the act. In view of the similarity of the orders, the issues, and the factual circumstances, we have consolidated the three cases on appeal. The issue is whether the deputy commissioners erred in finding that appellants were not entitled to benefits under the Florida Workers’ Compensation Act. We affirm.

Section 440.02(l)(c)3 provides, for purposes of coverage under the act, that the term “employment” does not include “service performed by or as a professional athlete” such as a “football player.” Miami Dolphins, Ltd., is a professional football club and a member of the National Football League. Each of the claimants is a member of the National Football League Players Association.

The Miami Dolphins qualified as a self-insured employer under the Florida Workers’ Compensation Act. Until 1971, the Dolphins complied with the requirement of the act as a self-insured and provided worker’s compensation benefits for all of its employees, including the players. In 1971, the Dolphins advised the Division of Worker’s Compensation that it no longer was waiving the professional athlete exclusion in section 440.02 and that coverage would not be provided to players, although coverage as a self-insured would continue as to all other employees. At the time of the injuries to appellants, the Dolphins had not again served notice of its election to waive the statutory exemption pursuant to section 440.04, Florida Statutes.

In addition to the collective bargaining agreement, the Dolphins, utilizing the NFL player contract form, entered into a specific contract with each appellant. This contract specified the amount of salary that would be paid for playing with the team during the regular season. It also provided that during pre-season training camp the player would receive compensation equal to ten percent of the agreed salary, payable in weekly installments during preseason, plus board, lodging, and transportation expenses.

At the time of his injury, Council Rudolph was a thirty-one year old college graduate who had played professional football as a defensive end for approximately seven years. He had played for the Houston Oilers, the St. Louis Cardinals, and the Tampa Bay Buccaneers prior to being traded to the Miami Dolphins. He had served as player representative while with the Tampa Bay Buccaneers and was under contract with the Buccaneers to play professional football for $65,000 per season. After playing two seasons for Tampa Bay, Rudolph was traded to the Dolphins and his contract of employment was assigned to the Dolphins. He reported to the Dolphins’ pre-season camp on July 13, 1978, began practice and, during a pass-rush drill, injured his left leg. At the time of this injury, Rudolph had been issued neither uniforms nor the Dolphins playbook, which allegedly contained advice to Dolphins players that they were not covered by worker’s compensation. Rudolph thereafter returned to limited practice, but reinjured his leg. After Rudolph played on quarter in a pre-season game on August 23, the Dolphins released him from his contract. Rudolph did not play in any regular season game for the 1978 football season, but was paid under his salary contract until released by the Dolphins. Rudolph filed a grievance under provisions of his contract and was awarded $15,000.

Floyd Wells, twenty-four years old at the time of his injury, attended college for two years but left school in 1977. He had never played college football and only played football a short time in high school. Desiring to become a member of the Miami Dolphins, he went to a tryout camp which lasted three days, but was not hired at that time. A few weeks later, he was called by the Dolphins and signed a contract on May 22, 1980, under which the Dolphins agreed to pay him $27,000 per year for playing as a wide receiver if he made the team roster. Wells reported to camp on July 13, 1980, where, pursuant to his contract, he was given lodging and board and paid compensation based on ten percent of his agreed salary. Camp was to last until September 7, 1980, when the regular season began. Wells, however, never made the regular season. On July 19 and 26, he sustained injuries to his left knee and became unable to participate in training. The Dolphins terminated Wells’ contract and placed him on waivers. Wells testified that he never made the team roster, never played in any game for the Miami Dolphins, and, in his opinion, never became a professional football player. In response to a grievance against the Miami Dolphins filed by Wells, the executive vice president of the Dolphins indicated that Wells lacked sufficient skills to make the Dolphins team roster at the time of his release. Wells was paid under his contract until October 12, 1980.

William Windauer, a thirty-three year old university graduate at the time of his injury, had played defensive tackle and offensive guard as a professional football player with the Baltimore Colts, the New York Giants, and the Atlanta Falcons prior to coming to the Miami Dolphins. Windauer had a two-year contract with the Dolphins, and his base salary was $35,000 for services during the 1977 season and $39,000 during the 1978 season. In July 1977, Win-dauer sustained abdominal injuries and a pinched nerve in the neck during pre-sea-son camp. Surgery failed to clear up his problems and he apparently did not play during the 1977 regular season. Windauer returned to camp in 1978 but was advised by the team physician that he could not play football and has played none since. After termination of his contract, Windauer received one-half of the stipulated salary, which was paid out in June 1979.

Since none of the appellants believed they had received benefits equivalent to worker’s compensation benefits provided by the Florida act, each filed appropriate claims. The Dolphins defended on the basis that appellants were not covered by the act because of the statutory exclusion of football players from the definition of employee.

On appeal, appellants seek reversal of the orders, urging in the following points that:

1. They were not engaged as professional athletes at the time of their injuries;

2. The Dolphins contracted with them to provide statutory worker’s compensation benefits;

3. The Dolphins waived the exclusion from coverage for professional athletes;

4. The Dolphins are ¿stopped to deny coverage for appellants; and

5. The professional athlete exclusion provision in section 440.02(l)(c)3 is unconstitutional.

Regarding the first point, we agree with appellants’ statement that the worker’s compensation act should be liberally construed so that every doubt is to be resolved in favor of coverage and every exclusion is to be given limited scope by restrictive interpretation. Levine v. The Miami Herald, 7 FCR 278 (Feb. 20, 1973), cert. den., 280 So.2d 682 (Fla.1973). See also, Sam Rogers Enterprises v. Williams, 401 So.2d 1388 (Fla. 1st DCA 1981); LaBrecque v. Florida Vocational Rehabilitation & Division of Risk Mgt., 380 So.2d 482 (Fla. 1st DCA 1980). In Miranda v. Southern Farm Bureau Casualty Insurance Co., 229 So.2d 232 (Fla.1969), the Supreme Court said of the agricultural laborer exclusion in section 440.02, “any doubt as to the claimant’s status in ‘grey’ or borderline cases will be resolved in favor of compensation coverage and against exclusion.” 229 So.2d at 235. We disagree, however, with appellants’ contention that they were not engaged as professional football players at the time of their respective injuries. We do not believe the statutory exclusion of professional athletes becomes applicable only when persons are playing during the regularly scheduled football season after making the team roster. The exclusion becomes operative whenever a professional athlete is injured incident to performing the contemplated activities of his employment as a professional athlete, whether during pre-season camp, during regular season practice, or during a regularly scheduled game. Each appellant was injured in actual athletic training or competition that was required by his contract of employment, and for which he was receiving compensation.

Nor are we persuaded by appellants’ argument that they should not be treated as professional football players because they were injured while competing with other players for a permanent position on the club’s roster. Appellants argue that they could not become professional players until selected for the roster because under their contract the Dolphins could terminate a player without further obligation or compensation if the player did not successfully compete and earn such position. But we are persuaded that the professional athlete exclusion does not become operative only upon achieving a permanent position on the club’s roster; it is applicable at all times a player participates in training and otl\er athletic endeavors required of him in his efforts to make the team roster, as long as the player is under contract and being compensated for his services during such training activity.

Rudolph and Windauer were obviously veteran professional football players. Rudolph was injured during training and a pre-season football game while playing under the professional contract assigned by the Tampa Bay Buccaneers to the Dolphins. Windauer, playing under his two-year contract, was injured during an intras-quad scrimmage while tackling the quarterback. We believe it would unnecessarily strain the language of section 440.02 to attempt to construe their activities as not falling within the professional football player exclusion. Wells’ situation presents a closer question. He had signed a contract with the Miami Dolphins that designated him a professional athlete and recited that he possessed special and unique skills as a football player that qualified him to participate in professional football. Although Wells had not previously been employed as a professional athlete and never did make the team roster, his activities at the time of his injury were likewise required by his employment contract, and he was receiving compensation for such activities whether or not eventually selected for the team roster. His compensation continued until October. We conclude, therefore, that the record contains substantial competent evidence to support the deputy’s finding that each appellant was injured while engaging in activity as a professional athlete within the statutory exclusion.

The thrust of appellants’ argument in support of the second point is that article XXXIII of the collective bargaining agreement obligated the Miami Dolphins to provide each appellant with statutory worker's compensation benefits or guarantee equivalent benefits to them, and that this provision amounted to a contract to provide worker’s compensation coverage, which should be enforced by the deputy commissioner under Dyalwood, Inc. v. L.R. Thomas, 122 So.2d 314 (Fla.1960), and Rainey v. Lafayette Grill, Inc., 2 FCR 208 (December 28, 1956), cert. den., sub. nom. Century Indemnity Co. v. Rainey, 97 So.2d 304 (Fla.1957). Appellants attempt to buttress their argument by emphasizing the provisions in paragraph 10 of their respective NFL Player contracts that “[a]ny compensation paid to Player under this contract ... for a period during which he is entitled to workmen’s compensation benefits ... will be deemed an advance payment of workmen’s compensation benefits due Player.”

We could agree with appellants’ position if article XXXIII and paragraph 10 contractually obligated the Dolphins to provide worker’s compensation coverage under the statute. Paragraph 10, however, is applicable only if the Dolphins have otherwise elected to provide worker’s compensation coverage by waiving the professional athlete exclusion. The language of article XXXIII requires only that the Dolphins either (1) voluntarily obtain coverage under the state’s worker’s compensation law or (2) otherwise guarantee equivalent benefits to its players. A guarantee of equivalent benefits is not the same as coverage under the act because article XXXIII expressly provides, in addition, that nothing stated therein is to be interpreted as preventing a club that has a legal right to do so from rejecting coverage under the worker’s compensation laws of any state. Article XXXIII did not create an enforceable right in every player to receive statutory worker’s compensation benefits and, thus, did not give rise to coverage of appellants at the time of their injuries. Rather, given the most liberal construction, that article only contractually obligated the Dolphins to otherwise provide its players with benefits equivalent to statutory worker’s compensation benefits if the Dolphins elected not to waive the statutory exclusion of professional players. This contractual obligation could be satisfied in many ways other than through coverage under the act enforceable by a deputy commissioner.

Each appellant’s NFL Player contract provided in paragraph 9 that in the event of injury the Dolphins would provide “such medical and hospital care during the term of this contract as the club physician may deem necessary” and that such player would “continue to receive his yearly salary for so long during the season of injury only ... as Player is physically unable to perform the services required of him by this contract because of such injury.” Accordingly, the Dolphins were contractually obligated to provide each appellant with appropriate medical care, continue his salary under the stated condition, and provide other compensation necessary to guarantee that the players received benefits “equivalent” to worker’s compensation benefits under the Florida act. But the deputy commissioners were without jurisdiction to determine claims based only upon private contract rights. U.S. Home Corp. v. Parker, 404 So.2d 170 (Fla. 1st DCA 1981); TRW, Inc. v. Betts, 407 So.2d 377 (Fla. 1st DCA 1981). Dyalwood, supra, and Rainey, supra, are inapposite since the rights appellants sought to enforce in this case are purely contractual in nature and are not derived from the worker’s compensation statute or a policy of insurance obtained to meet such statutory requirements. The deputy commissioners were entirely correct in declining to enforce appellants’ contractual rights, even though the value of those rights may have to be measured by comparison to worker’s compensation benefits.

In regard to the third point, we agree with appellee that the deputy commissioners did not err in failing to find that the Dolphins waived the professional athlete exclusion by purchasing an excess worker’s compensation insurance policy covering listed players, coaches, managers, and umpires. Appellants’ argument on this point is predicated on section 440.04(2), Florida Statutes, which provides that the purchase and acceptance of worker’s compensation insurance specifically covering otherwise excluded employees constitutes a waiver of the exclusion of those employees from the act. The Dolphins were self-insured for worker’s compensation benefits up to $100,000, and the insurance policies referred to provide excess coverage above that amount. The remuneration paid to all players, including appellants, was included in the policy declarations. That being so, appellants argue, this excess insurance constitutes direct worker’s compensation insurance covering appellants and the Dolphins’ purchase thereof amounts to a waiver of the professional athlete exclusion under section 440.04(2). The excess coverage policy here involved also, however, provides by special endorsement:

In consideration of the reduced rates shown in the declarations, it is agreed that this policy does not apply to the payment of compensation benefits to any professional football player on the salary list of the Miami Dolphins, Ltd. However, this exclusion shall not apply as respeets payments of medical benefits, which shall include but not be limited to medical, surgical and hospital treatment, nursing, medicines, medical and surgical supplies, crutches and apparatus, artificial limbs, and transportation charges, required by the workers’ compensation law or any occupational disease law of the state designated in the declarations. (Emphasis supplied)

This provision explicitly negates any purpose or intention that might be implied from the act of purchasing the excess insurance to waive the professional athlete exclusion regarding payment of compensation benefits and create coverage of such employees.

We note that the second sentence of the quoted endorsement relates to medical benefits “required by the worker’s compensation law.” Medical benefits, however, were provided by the Dolphins under the employment contracts. Whether that sentence may be construed to secure coverage for statutory worker’s compensation medical benefits to each player is not a question we need answer on this appeal since all three appellants have not claimed medical benefits, but only disability compensation and wage-loss benefits. The deputy commissioners did not err in failing to find a waiver of the exclusion by purchase of the excess insurance policies.

The appellants’ argument in support of the fourth point is likewise without merit. We find no record support for appellants’ contention that the employer is es-topped to deny worker’s compensation coverage for the appellants. The requisite elements of estoppel were not proven by the evidence.

Finally, appellants argue that the exclusion in section 440.02 is unconstitutional as applied to them because it denies equal protection of the law, in violation of the Fourteenth Amendment to the United States Constitution and Article I, Section 2, of the Florida Constitution. No decisions are cited by appellants in support of their somewhat confusing argument on this point. It is well established, however, that in passing upon the constitutionality of a statute, we must indulge every presumption in favor of its validity. • The equal protection clause does not invalidate a statute unless the legislation fails to “bear some reasonable relationship to a legitimate state purpose” and causes “different treatment so disparate as relates to the difference in classification so as to be wholly arbitrary.” In re Estate of Greenberg, 390 So.2d 40, 42 (Fla.1980). The professional athlete exclusion is not a wholly arbitrary one. Professional football players incur serious injuries on a regular, frequent, and repetitive basis. They are generally well paid, and as the NFL contracts in these cases exemplify, they willfully hold themselves out as well-skilled in the sport of their choice. They make a conscious decision to use their skills in an occupation involving a high risk of frequent, repetitive, and serious injury.- We cannot say that the legislature’s exclusion of this voluntary, though highly dangerous, activity from the worker’s compensation act fails to bear some reasonable relationship to a legitimate state purpose and is so completely arbitrary and lacking in equality of application to all persons similarly situated as to violate the cited constitutional provisions.

Moreover, appellants have certain contractual rights with their employer which protect their interests in the event they sustain injuries such as occurred in these cases, and they have been free to pursue those contractual rights, either by the stipulated grievance procedure, arbitration, or by civil action in a court of law. The provisions of section 440.11 granting employers immunity from suit are not applicable to bar suit by these players against the Miami Dolphins.

Finding no reversible error in the three orders dismissing appellants’ claims for worker’s compensation benefits, they are AFFIRMED.

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

ON MOTION FOR REHEARING

ZEHMER, Judge.

Appellants have filed a petition for rehearing in which they contend, among other things, that we mistakenly concluded that “all three appellants have not claimed medical benefits” and erroneously declined to reach the merit of their contention that the Dolphins waived the professional athlete exclusion by obtaining insurance coverage for such medical benefits.

As recited in our original opinion, the record reflects that medical benefits had been provided to appellants in accordance with the employment contract and that there were no specific claims for medical care pending at the time of the workers’ compensation hearing. The record also reflects, however, that appellants Wells and Rudolph had, at one time or another, asserted a general claim for medical benefits. Although the record contains no specific claim by appellant Windauer for medical benefits, it does contain a letter from Win-dauer’s counsel to the Division of Workers’ Compensation advising of his representation of Windauer regarding “his claim for both compensation and medical benefits.” In order to finally resolve the contested matters in this litigation, we will consider these claims for medical benefits as though properly pending and determine the question not answered in our original opinion, i.e., whether the language of the second sentence of the special endorsement to the insurance policy should be construed to secure coverage for statutory workers’ compensation medical benefits to each player.

We concluded in our original decision that express language of the quoted endorsement “negates any purpose or intention that might be implied from the act of purchasing the excess insurance to waive the professional athlete exclusion regarding payment of compensation benefits and create coverage” of the appellants. We do not believe that the language of the second sentence regarding coverage for medical benefits overcomes the Dolphins’ manifest intent not to waive the professional athlete exclusion. The insurance so obtained simply provides the Dolphins with a means of reimbursement for certain medical expenses that they may become obligated to pay under the players’ contracts. Existence of this insurance coverage does not affect appellants’ right to secure medical benefits under their employment contract, if denied, by suit in a court of competent jurisdiction.

Except for this clarification, the appellants’ petition for rehearing is in all other respects DENIED.

WENTWORTH and BARFIELD, JJ., concur.

      . Ralph Ortega, another professional football player formerly with the Miami Dolphins who presently has similar worker's compensation claims pending, was permitted to file an amicus curiae brief. We have considered the arguments in his brief along with those of appellants.

      . Each appellant’s contract required him to “report promptly for and participate fully in Club's official pre-season training camp, all Club meetings and practice sessions, and all pre-season, regular season and post-season football games scheduled for or by the Club.”

      . Paragraph 11 of the NFL Players contract provided:
      SKILL, PERFORMANCE AND CONDUCT. Player understands that he is competing with other players for a position on Club’s roster within the applicable player limits. If at any time, in the sole judgment of Club, Player's skill or performance has been unsatisfactory as compared with that of other players competing for positions on Club’s roster, or if Player has engaged in personal conduct reasonably judged by Club to adversely affect or reflect on Club, then Club may terminate this contract.

      . Article XXXIII of the collective bargaining agreement between the league and the players association provided in part:
      WORKMEN’S COMPENSATION:
      Scction 1. Benefits: In any states where Workmen's Compensation coverage is not compulsory, a club will either voluntarily obtain coverage under the compensation laws of that state or otherwise guarantee equivalent benefits to its players. In the event that a player qualifies for benefits under this section, such benefits will be equivalent to those benefits paid under the workmen's compensation law of the state in which his club is located.
      Section 2. Rejection of Coverage. Nothing herein stated is to be interpreted as prevening a club, which has the legal right to do so, from rejecting coverage under the workmen’s compensation law of its state. However, if a club elects to reject coverage under the workmen’s compensation law of its state, it must nevertheless guarantee benefits to its players in the manner previously prescribed in Section 1 above. Moreover, any club may be excluded from those laws if it elects to do so. However, such a club will be obligated to guarantee benefits to its players in the manner previously prescribed in Section 1 above.


author: THOMPSON, Judge.

text:
    UNIVERSAL CORPORATION and American Insurance Company, Appellants, v. Ervin Hart LAWSON, Appellee.
    No. AP-128.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1984.
    As Clarified on Denial of Rehearing March 14, 1984.
    Jeffrey A. Cramer and Suzanne R. Armstrong of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for appellants.
    No appearance for appellee.
   THOMPSON, Judge.

The employer/carrier (E/C) appeal a compensation order, contending that the deputy commissioner (deputy) erred in: (1) ordering payment of chiropractor’s bills; (2) finding that maximum medical improvement (MMI) was not reached and that the claimant was temporarily totally disabled (TTD) for six weeks after his injury; (3) ordering additional medical treatment; and (4) failing to rule on ripe questions concerning rehabilitation, permanency, and attorney’s fees. We reverse in part and affirm in part.

Claimant, a 29-year-old man, has only worked as a farm laborer, a fruit picker, and a common laborer. He is not sufficiently skilled in reading and writing to hold any type of “book and pencil job.” On Wednesday, January 27, 1982, claimant sustained a compensable injury to his back when he lifted a heavy electric motor. He worked the remainder of the day but when his pain worsened on the following day, he reported the injury and was seen by the employer’s nurse. Although the nurse applied heat and gave him aspirin, his pain was not alleviated. During the weekend he sought care from a chiropractor. The chiropractor called the employer for authorization to treat the claimant and authorization was granted on an emergency basis. On the following Monday, February 1, 1982, the employer twice telephoned the chiropractor's office to request that the claimant be referred to Dr. Coury, a medical doctor, and to notify the chiropractor that his authorization had been withdrawn.

When Dr. Coury saw claimant on February 2, 1982, he diagnosed a left side thoracic area paravertebral muscle sprain and placed the claimant on light duty. He prescribed muscle relaxants and physical therapy treatments of heat, massage, and ultrasound. These treatments were supplied to the claimant on February 2 and February 3. When the claimant saw Dr. Coury again on February 4, he told Dr. Coury that the treatment had not helped him and that he wanted to continue to see the chiropractor. Dr. Coury released claimant to return to full duty as of February 5, 1982 because he found that claimant no longer had any muscle spasm or any other objective sign of injury, because the x-ray studies were negative, and because the claimant appeared dissatisfied with the treatment being furnished.

On February 8, 1982, the E/C telephoned the chiropractor to notify him he was no longer authorized and on February 18, 1982, the E/C deauthorized the chiropractor in writing. On the same date the E/C also wrote the claimant informing him that because he had been released to work as of February 5, 1982, no compensation was due. The E/C offered further orthopedic treatment if the claimant desired it, and invited claimant to call and request such treatment. In a March 26, 1982 letter to claimant's attorney, the E/C again offered examination and treatment by an orthopedic surgeon and provided the names of three orthopedists that they would be willing to authorize. The claimant did not seek further medical care but continued chiropractic treatment until the chiropractor released him on April 3, 1982, with restrictions on heavy lifting. Although the chiropractor apparently reported to claimant’s attorney that the claimant had a 5% permanent impairment under the AMA Guides, he did not testify either at the hearing or by deposition and his written reports, if any, were not admitted into evidence.

Dr. Lipinski, an orthopedic surgeon, examined claimant on July 26, 1982 and found no permanent impairment. He felt claimant had fully recovered from any injury he may have sustained and was capable of resuming his full duties. Dr. Lipinski testified that the type of injury the claimant sustained was self-resolving if not further aggravated by trauma or strenuous labor, that such injuries always resolve themselves within a maximum of six weeks, that the type of treatments rendered by the chiropractor would not have had any therapeutic effect on claimant’s injury after the first two weeks, and that the injury was such that no benefit would accrue from physical therapy lasting longer than 10 days to two weeks. Dr. Lipinski also testified that the chiropractor was wrong in assigning a permanent impairment rating, and that the tests which the chiropractor used to arrive at the rating would not yield the type of information which could be used to determine a rating under the AMA Guides.

In a claim filed March 1, 1982, claimant sought TTD, treatment by the chiropractor, and attorney’s fees based on bad faith. In his application for hearing claimant also requested vocational rehabilitation. At the hearing claimant testified he was still in pain, and that although his condition had improved while he was receiving chiropractic care, his condition had become worse after the chiropractor had released him. Claimant admitted he did not attempt to find work prior to April 3, 1982, the date the chiropractor released him.

Emergency chiropractic care was authorized shortly after claimant’s accident and was not properly deauthorized until March 26 when the E/C wrote the claimant’s attorney naming the three orthopedic physicians they were willing to authorize. Our conclusion that the chiropractor was not properly deauthorized until March 26 should not be interpreted as a holding that a health care provider may not be deau-thorized by verbal communication made tel-ephonically or otherwise. Rather, we find on the basis of the record before us that on and after February 5, 1982, the E/C knew, or in the exercise of due diligence could have discovered, that claimant was dissatisfied with the treatment afforded by Dr. Coury. The E/C then became obligated to offer alternative care by “select[ing] another physician to treat the injured employee.” Section 440.13(2), Fla.Stat.; Deinema v. Pierpoint Condominiums, 415 So.2d 811 (Fla. 1st DCA 1982). The E/C made no valid offer of alternative care until March 26, when they wrote claimant’s attorney specifically naming the three orthopedists they were willing to authorize. Therefore, the E/C’s several attempts to deauthorize the chiropractor by telephone were ineffective. Although we conclude that the deputy was correct in finding that the E/C should be responsible for payment of chiropractor’s bills incurred prior to March 26, 1982, we must nonetheless reverse the portion of the order directing the E/C to pay the bills since the evidentiary predicate for the award was insufficient. So far as the record before us discloses, the bills were not admitted into evidence and there was no testimony from the chiropractor or anyone else to establish the amount of the chiropractor’s bill for services rendered pri- or to March 26. Friendly Ford v. Hurrell, 427 So.2d 207 (Fla. 1st DCA 1983). Upon remand, the deputy may reinstate the award of the chiropractor’s bills upon a showing of proper proof.

There is no medical evidence that could support the deputy’s finding that claimant was TTD at any time after the date of his injury. On the contrary, both doctors unequivocally testified that the claimant could perform at least light duties at all times. The chiropractor did not testify and his report, if any, was not introduced into evidence. The claimant admitted that he conducted no work search during this period. Accordingly, the award of TTD is reversed. See Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So.2d 275 (Fla. 1st DCA 1981); Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981).

Even the claimant admits he reached MMI by April 3, 1982 although the E/C contend that he reached MMI at an earlier date. The award of further remedial treatment is therefore reversed.

The claimant having reached MMI, it was error for the deputy to find it was premature to determine permanent impairment and entitlement to vocational rehabilitation. The questions of permanent impairment and rehabilitation were ripe, at issue, and should have been ruled on at the hearing. See Washington Square Associates, Ltd. v. Bourne, 408 So.2d 809 (Fla. 1st DCA 1982). The reservation of jurisdiction to determine the issue of entitlement to attorney’s fees based on bad faith in a separate hearing is authorized, although not mandated, by law and is affirmed. See Embry-Riddle Aeronautical University v. Vestal, 399 So.2d 1033 (Fla. 1st DCA 1981).

Affirmed in part and reversed in part, and remanded with instructions to determine, upon the existing record, the issues of permanent impairment and entitlement to vocational rehabilitation.

ERVIN, C.J., and NIMMONS, J., concur.


text:
    Virgie FOWLER, Appellant, v. STATE of Florida, Appellee.
    No. 83-628.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1984.
    Rehearing Denied March 28, 1984.
    Tom McCoun of Louderback, McCoun & Helinger, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Virgie Fowler appeals her conviction for perjury by contradictory statements. She contends that the testimony she gave under a grant of immunity was impermissibly used by the state as the basis for the charge against her.

In February 1980, an apartment complex in St. Petersburg was burned by a suspected arsonist. Shortly thereafter Virgie Fowler informed the St. Petersburg Police Department that she had knowledge of an insurance fraud committed, by her ex-husband. As a result of that information, the State Attorney’s Office conducted a formal investigation in September 1981 and compelled Fowler to testify. In exchange for her testimony and cooperation in the investigation, Fowler was granted immunity pursuant to section 914.04, Florida Statutes (1981). She gave sworn incriminating testimony that she, her ex-husband, and another friend had committed the arson.

After the investigation, Fowler’s ex-husband was charged with various offenses including arson and insurance fraud. Prior to her ex-husband’s trial, defense counsel subpoenaed Fowler in May 1982 to appear for deposition. She then gave a second and allegedly different account of the arson, which conflicted with her previous testimony concerning her ex-husband’s knowledge of the arson.

The state then charged Fowler with perjury by contradictory statements in violation of section 837.021, Florida Statutes (1981). Fowler’s motion to dismiss the information was denied by the trial court. She then pled nolo contendere to the charge and reserved her right to appeal the denial of her motion to dismiss. She was subsequently adjudged guilty and placed on probation for five years with the condition that she spend six months in jail.

The only issue before us is whether the state was precluded from using the immunized statement made by Fowler in her 1981 testimony in a subsequent criminal proceeding.

Fowler argues that the initial immunization insulated her from having her prior statements used against her to show inconsistency with her subsequent testimony at the 1982 deposition. She cites The Florida Bar v. Doe, 384 So.2d 30 (Fla.1980), for support of that proposition. The state makes no attempt to distinguish Doe, but instead responds that a grant of immunity does not extend to a perjury which the witness may commit.

Section 914.04 provides that when a witness is compelled to testify under a grant of immunity, “no testimony so given or produced shall be received against [the witness] upon any criminal investigation or proceeding.” In return for Fowler surrendering her constitutional right to remain silent lest she incriminate herself, the state was prohibited from prosecuting her based on any inculpatory evidence she might give at the 1981 formal investigation. However, if she gave false testimony, this immunity would not protect her from a subsequent prosecution for perjury. Perjured testimony is beyond the scope of the immunity which was intended to protect the witness from past indiscretions. Gordon v. State, 104 So.2d 524 (Fla.1958); State v. Daniels, 400 So.2d 498 (Fla. 5th DCA), petition for review denied, 411 So.2d 381 (Fla.1981); Daniels v. Kirkland, 379 So.2d 197 (Fla. 5th DCA 1980).

The 1981 grant of immunity did not free Fowler to perjure herself. However, it did preclude the state from using that compelled testimony against her in any other criminal proceeding. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975). Thus, when Fowler testified at the 1982 deposition, the original grant of immunity carried forward and protected her from having her prior statements used against her to show inconsistency with her testimony at the deposition. The Florida Bar v. Doe. The Doe case mandates dismissal of the information charging Fowler with a violation of section 837.021. See also In re Grand Jury Proceedings, 644 F.2d 348 (5th Cir.1981); State v. Harris, 425 So.2d 118, 122 n. 9 (Fla. 3d DCA 1982); State v. Newsome, 349 So.2d 771 (Fla. 2d DCA), cert. dismissed, 353 So.2d 677 (Fla.1977). But cf. United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 63 L.Ed.2d 250 (1980) (holding that neither federal immunity statute nor fifth amendment precludes the use of immunized testimony at a subsequent prosecution for making false statements, so long as that testimony conforms to otherwise applicable rules of evidence).

Accordingly, we reverse the trial court’s order denying Fowler’s motion to dismiss and vacate her conviction and sentence.

Although Fowler was immune from prosecution based on her contradictory statements, the supreme court pointed out in Doe that the state is not precluded from prosecuting her under section 837.02 (perjury in official proceedings). However, the effect of that decision appears to make it extremely difficult for the state to prosecute Fowler for perjury in official proceedings under section 837.02, since Doe holds that the grant of immunity carries forward. Under Doe the state cannot introduce any statements made by Fowler while under grant of immunity. If the perjurious statement was made under grant of immunity, under the rationale of Doe there could be no successful prosecution by the state. Since the state could not introduce that statement into evidence, it could not sustain its burden of proving the falsity of the initial statement. We do not think the supreme court intended its holding in Doe to have this effect.

We certify to the supreme court the following question as being one of great public importance:

WHETHER THE FLORIDA BAR v. DOE, 384 So.2d 30 (Fla.1980), BARS THE STATE FROM USING STATEMENTS MADE BY THE DEFENDANT UNDER A GRANT OF IMMUNITY IN PROSECUTION (a) FOR PERJURY BY LATER CONTRADICTORY STATEMENTS UNDER SECTION 837.021; AND (b) FOR PERJURY UNDER SECTION 837.02?

REVERSED AND QUESTION CERTIFIED.

OTT, C.J., and LEHAN, J., concur.