McCabe v. Bechtel Power Corp.

• Decision Date: 28 July 1987
• Docket Number: No. BR-434,BR-434
• Citation: 510 So.2d 1056,12 Fla. L. Weekly 1816
• Court: Florida District Court of Appeals
• Parties: 12 Fla. L. Weekly 1816 Joseph McCABE, Appellant, v. BECHTEL POWER CORP., and Florida Power & Light Corp., Appellees.

Page 1056

510 So.2d 1056

12 Fla. L. Weekly 1816

Joseph McCABE, Appellant, v. BECHTEL POWER CORP., and Florida Power & Light Corp., Appellees.

No. BR-434.

District Court of Appeal of Florida First District.

July 28, 1987.

Renee R. Pelzman, of Levine, Busch, Schnepper & Stein, Miami, for appellant.

Albert Harum, Jr., Miami, for appellees.

ZEHMER, Judge.

Joseph McCabe appeals a workers' compensation order denying his claim for wage-loss benefits, rehabilitation, and future medical care. Finding error in the deputy commissioner's resolution of these issues, we reverse.

At the time of his accident, claimant worked for Florida Power & Light as a pipefitter. He had, some twenty years before, undergone surgery on both his knees and had since worked with neither pain, lost time from work, nor other knee-related problems. On November 16, 1983, claimant fell at work. His left foot caught between a wall and a curb, twisting his left leg, and he immediately felt pain in the knee joint. Claimant reported the injury but continued to work for several days in the hope that his knee would heal.

Because the pain in his knee increased, claimant went to a physician authorized by the carrier and was told to stay off the leg for one week. Upon his return to work the pain continued, so claimant again saw this physician and was referred to Dr. Barry, an authorized board-certified orthopedic surgeon. Dr. Barry first saw claimant on December 2, 1983, and obtained a history of the injury consistent with the facts related above. He operated on claimant's knee in August 1984, and removed the remaining twenty percent of claimant's meniscus, some of the lining of his tibia, and his myofibril. Dr. Barry's operating report stated that portions of claimant's left knee had been recently fragmented. He limited claimant from squatting, stooping, climbing, or pivoting with his weight on his left foot, and he eventually released claimant on December 8, 1984. His report at that time stated that claimant was discharged with no permanency.

Claimant received workers' compensation benefits from the date of his operation until the end of December 1984. His job search from January 1985 through April 1985 consisted of contacting his union hall and using newspaper classified ads. He attempted to return to work for the employer in April or May 1985, but was rejected after two and one-half days because of medical restrictions which interfered with his performing work as a pipefitter.

Claimant filed a claim for additional benefits in January 1985. His attorney of record was Howard Silverstein. Before the hearing, however, Bernard Butts was substituted as claimant's counsel. The initial hearing on this claim took place on June 6, 1985, before Deputy Commissioner Trask. A follow-up hearing was held February 26, 1986, before Deputy Commissioner Vocelle. A third hearing, before Deputy Commissioner Vocelle, was held May 14, 1986, on claimant's motion for authorization of a physician. In the hearings on the claim for benefits, live testimony was taken from claimant and several witnesses and both doctors testified by deposition.

In a deposition taken by Mr. Butts, Dr. Barry testified that the American Medical Association's Guides to the Evaluation of Permanent Impairment (AMA Guides ) in force at the time he released the claimant gave a disability rating for a knee only if there was a loss of motion. Because claimant had no loss of motion, even though he continued to suffer pain, instability, and a tendency to suffer new injuries, Dr. Barry's December 1984 report indicated no permanent impairment. ¹ Dr. Barry explained that approximately six months after he released claimant, a new version of the AMA Guides was published that allowed a rating for this type knee problem. Under these new AMA Guides Dr. Barry gave claimant a twenty percent impairment rating. He ascribed twenty-five percent of this impairment to claimant's November 16, 1983, accident and seventy-five percent to deterioration after the surgery performed some twenty years before, for a total of five percent impairment attributable to the recent accident. Dr. Barry also testified that, although claimant's knee would have continued to deteriorate without the accident, the accident caused the rate of deterioration to increase.

Dr. Howard Kurzner, an orthopedic surgeon, also testified by deposition. He examined claimant once, in May 1985. He also reviewed Dr. Barry's report of the knee surgery. Dr. Kurzner, although not expressing disagreement with anything in Dr. Barry's report, expressed the opinion that most of claimant's impairment was due to his preexisting condition and degenerative changes after the prior surgery. Dr. Kurzner specifically stated that he was relying on Dr. Barry's reports of the surgery. Although Dr. Kurzner took X rays of claimant's knee, he opined that X rays were not as useful as an arthroscope in revealing the specific changes in the knee or when they occurred. Unlike Dr. Barry, Dr. Kurzner did not perform arthroscopic surgery on claimant's knee.

The deputy found that any permanent impairment suffered by claimant was the result of degeneration after his knee surgery and not the result of his accident. He rejected the testimony of Dr. Barry and expressly accepted the testimony of Dr. Kurzner because he found it to be more consonant with logic and reason than that of Dr. Barry. The deputy specifically noted that Dr. Barry's testimony changed when he was deposed by claimant's new attorney, a fellow Hialeahan. The deputy also found, as a secondary holding, that claimant's job search was inadequate to show entitlement to wage-loss benefits during the months in question.

Claimant challenges the finding that no permanent impairment is attributable to the November 1983 injury as not supported by competent, substantial evidence and applicable principles of law. Specifically, claimant argues that the deputy had no valid basis for rejecting the testimony of Dr. Barry, and thus erred in denying claimant's request for rehabilitation benefits. Claimant does not contest the deputy's findings with respect to the job search.

The findings of a deputy must be based on competent,...