McCabe v. Bechtel Power Corp., No. BR-434

CourtCourt of Appeal of Florida (US)
Writing for the CourtZEHMER
Citation510 So.2d 1056,12 Fla. L. Weekly 1816
Decision Date28 July 1987
Docket NumberNo. BR-434
Parties12 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.

Page 1057

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

Page 1058

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.

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16 practice notes
  • Timothy Bowser Const. Co. v. Kowalski, 91-3230
    • United States
    • Court of Appeal of Florida (US)
    • August 28, 1992
    ...We have the same vantage point as the JCC did in evaluating the deposition testimony of Dr. Lichtblau. McCabe v. Bechtel Power Corp., 510 So.2d 1056, 1059 (Fla. 1st DCA 1987). In Broadfoot v. Albert Hugo Ass'n, Inc., 478 So.2d 863, 866 (Fla. 1st DCA 1985), we held that otherwise sufficient ......
  • Raehn v. Raehn, No. 89-16
    • United States
    • Court of Appeal of Florida (US)
    • February 15, 1990
    ...deposition testimony, a reviewing appellate court is equally able to judge such credibility. See McCabe v. Bechtel Power Corp., 510 So.2d 1056, 1059 (Fla. 1st DCA 1987); Dukes v. Dukes, 346 So.2d 544, 545 (Fla. 1st DCA 1976). We do not decide this appeal on the basis of witness credibility,......
  • Days Inn/Days Suites v. Thomas, 92-00461
    • United States
    • Court of Appeal of Florida (US)
    • July 7, 1993
    ...supra at 781-782; Skip's Shoes and Western Boots v. Green, 578 So.2d 439, 441 (Fla. 1st DCA 1991); McCabe v. Bechtel Power Corporation, 510 So.2d 1056 (Fla. 1st DCA The JCC obviously did not overlook or ignore testimony of any of claimant's treating or examining physicians. However, the JCC......
  • H & A Frank's Const., Inc. v. Mendoza, No. 90-3013
    • United States
    • Court of Appeal of Florida (US)
    • July 17, 1991
    ...(Fla. 1st DCA 1990); Severini v. Pan American Beauty School, Inc., 557 So.2d 896, 897 (Fla. 1st DCA 1990); McCabe v. Bechtel Power Corp., 510 So.2d 1056 (Fla. 1st DCA 1987); Metropolitan Transit Authority v. Bradshaw, 478 So.2d 115, 116-117 (Fla. 1st DCA The JCC did not indicate nor can we ......
  • Request a trial to view additional results
16 cases
  • Timothy Bowser Const. Co. v. Kowalski, 91-3230
    • United States
    • Court of Appeal of Florida (US)
    • August 28, 1992
    ...We have the same vantage point as the JCC did in evaluating the deposition testimony of Dr. Lichtblau. McCabe v. Bechtel Power Corp., 510 So.2d 1056, 1059 (Fla. 1st DCA 1987). In Broadfoot v. Albert Hugo Ass'n, Inc., 478 So.2d 863, 866 (Fla. 1st DCA 1985), we held that otherwise sufficient ......
  • Raehn v. Raehn, No. 89-16
    • United States
    • Court of Appeal of Florida (US)
    • February 15, 1990
    ...deposition testimony, a reviewing appellate court is equally able to judge such credibility. See McCabe v. Bechtel Power Corp., 510 So.2d 1056, 1059 (Fla. 1st DCA 1987); Dukes v. Dukes, 346 So.2d 544, 545 (Fla. 1st DCA 1976). We do not decide this appeal on the basis of witness credibility,......
  • Days Inn/Days Suites v. Thomas, 92-00461
    • United States
    • Court of Appeal of Florida (US)
    • July 7, 1993
    ...supra at 781-782; Skip's Shoes and Western Boots v. Green, 578 So.2d 439, 441 (Fla. 1st DCA 1991); McCabe v. Bechtel Power Corporation, 510 So.2d 1056 (Fla. 1st DCA The JCC obviously did not overlook or ignore testimony of any of claimant's treating or examining physicians. However, the JCC......
  • H & A Frank's Const., Inc. v. Mendoza, No. 90-3013
    • United States
    • Court of Appeal of Florida (US)
    • July 17, 1991
    ...(Fla. 1st DCA 1990); Severini v. Pan American Beauty School, Inc., 557 So.2d 896, 897 (Fla. 1st DCA 1990); McCabe v. Bechtel Power Corp., 510 So.2d 1056 (Fla. 1st DCA 1987); Metropolitan Transit Authority v. Bradshaw, 478 So.2d 115, 116-117 (Fla. 1st DCA The JCC did not indicate nor can we ......
  • Request a trial to view additional results

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