Copeland Steel Erectors v. McCollom

• Decision Date: 21 October 1991
• Docket Number: No. 91-634,91-634
• Citation: 587 So.2d 658
• Parties: COPELAND STEEL ERECTORS and Argonaut Insurance Co., Appellants, v. Rocky McCOLLOM and Ironworkers Local 808 and the Hartford Ins. Co., Appellees. 587 So.2d 658, 16 Fla. L. Week. D2706
• Court: Florida District Court of Appeals

Page 658

587 So.2d 658

COPELAND STEEL ERECTORS and Argonaut Insurance Co., Appellants, v. Rocky McCOLLOM and Ironworkers Local 808 and the Hartford Ins. Co., Appellees.

No. 91-634.

587 So.2d 658, 16 Fla. L. Week. D2706

District Court of Appeal of Florida First District.

Oct. 21, 1991.

Richard S. Thompson of Zimmerman, Shuffield, Kiser & Sutcliffe, Orlando, for appellants.

Theodore N. Goldstein of Rissman, Weisberg, Barrett & Hurt, Orlando, for appellees.

KAHN, Judge.

This is an appeal from an order of the Judge of Compensation Claims equally allocating responsibility for the payment of indemnity and medical benefits subsequent to claimant McCollom's date of maximum medical improvement (MMI) between Copeland Steel Erectors, employer/carrier # 1 (E/C # 1), and Ironworkers Local 808 (E/C # 2). We affirm in part, reverse in part, and remand for further proceedings.

Claimant, a 39-year-old, was involved in two accidents. The first accident occurred on April 23, 1984 when claimant was working as an ironworker for Copeland Steel and fell approximately 22 feet from scaffolding, injuring his right arm, right shoulder, neck and back. On April 14, 1988 claimant suffered a second job-related injury while working as a business agent for the Local 808 Ironworkers Union when he was accosted and shot in the shoulder at close range.

Competent substantial evidence supports the JCC's order to the extent that it finds both E/C's partially liable for benefits after the date of MMI. The judge properly considered the testimony of Dr. Tucker, who rendered treatment to claimant during the relevant time period for both injuries. Dr. Tucker's testimony that the first injury caused the second injury to be worse, that claimant continued to receive treatment for the first injury until very shortly before the second accident, and that claimant had a permanent impairment rating as a result of the first accident, supports the JCC's findings. Dr. Tucker's testimony is corroborated by the claimant's testimony that he continued to have headaches, muscle spasms, and back and neck stiffness from the first accident up until the time of the second accident. The JCC properly resolved internal inconsistencies in Dr. Tucker's testimony. As a reviewing court, we are unable to say that the record is devoid of competent substantial evidence to support the ruling that E/C # 1 is at least partially responsible for claimant's continuing benefits. Mello v. K-Mart, 542 So.2d 404 (Fla. 1st DCA 1989); Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983).

We reverse, however, as to the JCC's ruling on the proportionate amounts of liability as between E/C # 1 and E/C # 2. In the order under appeal the JCC made the following finding:

I further find that the responsibility for medical and indemnity benefits after the October, 1989, date of maximum medical improvement should be shared equally by the carriers. In making this finding of fact, I have again considered the testimony of the claimant, and the expert opinion testimony of Dr. Tucker. Although Dr. Tucker did not apportion the two accidents numerically, he did state that the claimant would have continued to have problems with his right shoulder and neck, even without the April 14, 1988 gunshot wound. He also stated that he did not believe the claimant ever...