#### HENDERSON’S PORTION PAK and Insurance Company of North America, Petitioners, v. Fannie E. JONES and Florida Department of Commerce, Industrial Relations Commission, Respondents.

Supreme Court of Florida.

June 13, 1973.

Rehearing Denied Sept. 6, 1973.

No. 42663.

Summers Warden and Robert H. Gregory, Coral Gables, for petitioners.

Walter C. Lehmann, Miami, for respondents.

BOYD, Justice.

This cause is before us on petition for writ of certiorari to the Florida Industrial Relations Commission.

The respondent, claimant below, sustained a compensable accident in the course of her employment on October 21, 1968. Claim was made for permanent partial disability and/or loss of wage earning capacity, and the matter proceeded to hearing before the Judge of Industrial Claims on December 21, 1970, and March 1, 1971. Two separate court reporters from two separate court reporting services were used for the two hearings. Both were official court reporting services for the Department of Commerce, Bureau of Workmen’s Compensation. The Judge entered an Order on April 27, 1971, holding that the claimant had sustained a 25 percent permanent partial wage earning loss as a result of the industrial accident.

On May 3, 1971, the Petitioners, employer and carrier below, filed their Application for Review, assigning as error that the Order completely ignored a subsequent non-industrial accident of November 7, 1968, that involved substantially the same areas of injury to the body as were involved in the compensable accident. Receipt was acknowledged, stating the Application for Review had been filed in Tallahassee on May 3, 1971. Accordingly, the Clerk of the Full Commission sent a letter to Petitioners indicating that the file was being forwarded to the Judge of Industrial Claims with request that he please proceed *343with the preparation of the transcript of proceedings.

On July 2, 1971, one of the court reporters filed a Petition for Extension, of Time, indicating that the reporter would not be able to complete the preparation of the transcript within the time specified. The Judge of Industrial Claims entered an Order indicating that, “for good cause shown” by the verified petition, the time for filing the transcript of proceedings was extended to August 9, 1971.

On July 16, 1971, the Respondent filed a Motion to Quash and/or Dismiss the appeal on the basis that Florida Industrial Commission Rules 6(a)1 provides that the transcript of record shall be filed within forty-five days, that the deadline of forty-five days had passed (June 17, 1971), and that the Order extending the time for the preparation of the transcript was entered subsequent to the forty-five day deadline.

On July 19, 1972, the Industrial Relations Commission, with two members sitting, granted the motion to dismiss, saying “Forty-five days from May 3, 1971, would be June 17, 1971, and the record is clear that a motion was not filed nor a verified petition entered prior to that date.” In addition, the Commission awarded Respondent $500.00 attorney’s fees.

The Petitioners have now filed a petition for writ of certiorari with this Court, asserting that the Industrial Relations Commission erred in granting the Motion to Dismiss the Application for Review, and taking the position that the Judge of Industrial Claims did not abuse his discretion in granting an extension of time for filing the transcript of record even though it was beyond the forty-five day period indicated in Commission Rule 6(a), as such a rule is discretionary and not mandatory.

Our careful consideration and analysis of the petition, the record and briefs of counsel, sustains the view that the findings of the Commission are supported by competent substantial evidence and that, in entering its order, respondent Commission met the essential requirements of law. Contrary to the contentions of petitioners, both the foregoing rule and the statutes which are its foundations, Sections 440.-25 (4) (b) and 440.29(2), Florida Statutes, 1971, F.S.A., clearly indicate that an extension of time for filing the transcript of evidence can be granted *only*if the necessary steps are taken *within*the forty-five day period. Just as clearly, and again, contrary to the contentions of petitioners, the appropriate rule and statutes *place the burden upon the appellant and counsel,*and not upon anyone connected with the Department of Commerce, to keep informed as to and take steps to assure the progress of the preparation and filing of the transcript of evidence.

Accordingly, the petition for writ of cer-tiorari is denied.

It is so ordered.

CARLTON, C. J., and ROBERTS and McCAIN, JJ., concur.

DEKLE, J., dissents with opinion.

1

. *The appellant shall*have the original and one copy of the transcript of evidence adduced at the hearing before the Judge of Industrial Claims filed with the Industrial Relations Commission *within forty-five days from the date of filing of the application for review,*unless the Judge on his own motion or for good cause shown by verified petition *presented prior to the expiration of said period,*shall extend the time therefor. *The appellant shall*have a copy of the transcript served on the opposing party or their counsel and evidence thereof shall be filed with the transcript when filed with the Commission. (Emphasis supplied.)

DEKLE, Justice

(dissenting):

In Bradshaw v. Miami Provision Co.,1 we recently held that Florida Industrial Commission Rule 6(c) was not mandatory, but was to be applied within the discretion *344of the Judge of Industrial Claims, and his decision would not be disturbed on review, except on a clear showing of an abuse of power or an arbitrary exercise of power. In *Bradshaw,*an Insolvency Petition had been executed by the attorney rather than the claimant. The Full Commission affirmed the denial of the claimant’s petition for relief for payment of the transcript pursuant to Rule 6(c), because the rule had not been complied with, as the Insolvency Petition was not signed by the claimant personally. This Court held that the Judge of Industrial Claims had not abused his discretion in considering the claimant’s Insolvency Petition on the merits even though it was signed by the attorney rather than by the claimant as required by Florida Industrial Commission Rule 6(c). We stated it was dear that this deviation from the rules requirement did no harm.

Within *Bradshaw,*we cited the decision in Sweeney v. Pine Island Citrus Groves, Inc.,2 which held that, for good cause, a Judge of Industrial Claims may exercise his discretion in granting or denying an extension of time for filing a verified petition to be relieved of costs in preparation of a transcript. This Court rejected the Commission’s view that another part of Rule 6(c) was mandatory, and held:

> “Both the Judge of Industrial Claims and the Full Commission erred in holding that this rule was mandatory. This and other rules of the Commission should be observed in the interest of expediting the speedy termination of these administrative proceedings. Such rules, however, are not mandatory. For good cause the Judge of Industrial Claims may, on application of the employer or employee, exercise his judicial discretion in granting or denying such relief. Ordinarily, the exercise of such discretion will not be disturbed on review, except on a clear showing of an abuse of power or an arbitrary exercise of power.” 3

Dismissal of a transcript for late filing has been held to be discretionary in Crawford v. W. R. Wright & Sons, Inc.,4 and Schneider v. Gustafson Industries, Inc.5 In *Crawford,*it was held that the cause should not be dismissed where the failure to file the transcript was the fault of the Commission. In *Schneider,*it was held error to dismiss where the court reporter relied on an erroneous computation of time.

As in these two foregoing cases, it would appear that the failure to properly file the transcript was not the fault of the petitioners.

In the record, there appears a letter dated May 4, 1971, addressed to petitioners’ attorney, with copies to respondent’s attorney and the Judge of Industrial Claims, which acknowledges receipt of the Application for Review filed May 3, 1971. The letter, from the Florida Department of Commerce, also states:

> “Accordingly, this file is being forwarded to the Judge of Industrial Claims with the request that he please proceed with the preparation of the transcript of proceedings.”

The petitioners had no control over the official court reporters that were employed and designated by the Florida Department of Commerce. The office of Freidman and Lombardi, Court Reporters, had been employed as the official court reporter regarding the first hearing. Then, the office of Green & Inman became the official court reporters, and they were in attendance at the second hearing. With two court reporters preparing the transcript, and especially a new court reporter that had just taken office in January, 1971, there evidently was some confusion with regard to the correct date of filing. As *345recognized by this court in Lieber v. Morris Lieber, Inc.,6 the responsibility of having hearings properly reported and transcribed falls on the Commission. In that case, there had been a disappearance of a court reporter, so that the notes could not be transcribed. It was then held that the cause should be remanded for a trial *de novo.*It would appear that whether the court reporter disappears, or the firm engaged by the Department of Commerce does not file the transcript in a timely manner, the result should be the same.

Under the facts of the instant case, Rule 6(a) cannot be held to be mandatory. Such a holding would mean that a litigant could be denied his day in court through the inadvertence, wilful or negligent, of the Judge of Industrial Claims, the Full Commission, or any person, such as a court reporter, placed in a position of responsibility by the Department of Commerce. In the case *sub judice,*the Judge of Industrial Claims did not abuse his discretion in extending the time for the filing of the transcript. The Full Commission erred in holding that Rule 6(a) was mandatory, and overturning the extension of time granted by the Judge in his discretion, without a clear showing of an abuse of power or an arbitrary exercise of power.

Petitioners have also raised as error the Full Commission’s award of attorney’s fees to respondent “based on an interlocutory order where the decision results in no further benefits to the claimant and the Order of the Industrial Relations Commission is only on procedure and is not based on the merits of the claim.”

In Honeywell, Inc. v. Haley,7 we held that in interlocutory proceedings of this kind, which are ancillary to the right of a claimant to an award for compensation benefits, an award of attorney’s fees should be held in abeyance pending disposition on the merits of the claim. This is so because Fla.Stat. § 440.34, F.S.A., only authorizes an attorney’s fee contingent upon an award of compensation benefits.

The instant case is an interlocutory-ancillary proceeding, where such a decision will result in no further compensation benefits to the claimant. The Order entered by the Industrial Relations Commission is not on the merits, but only on the procedure, and I therefore agree with petitioners that no attorney’s fees should be payable.

The Order of the Full Commission should be quashed in my judgment, and the cause remanded to the Full Commission with directions to hear petitioners’ Application for Review on its merits, and defer the award of attorney’s fees, if any, to respondent, until the completion of the hearing on the merits.

I respectfully dissent.

1

. 261 So.2d 829 (Fla.1972).

2

. 234 So.2d 644 (Fla.1970).

3

. *Id.*at 645.

4

. Claim No. R-5314, cert. denied, 81 So.2d 807 (Fla.1955).

5

. 139 So.2d 423 (Fla.1962).

6

. 168 So.2d 313 (Fla.1964).

7

. 216 So.2d 745 (Fla.1968).