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Logan County v. McDonald4/6/2005
AFFIRMED
Logan County and AAC Risk Management Services bring this appeal from the May 14, 2003, decision of the Workers' Compensation Commission (Commission) challenging its determinations that (1) appellee Jimmy McDonald was entitled to wage-loss benefits in the amount of twenty-five percent to the body as a whole; (2) appellee had proven by a preponderance of the evidence that he had not been made whole or fully compensated for his loss as a result of his compensable injury ; (3) appellant had no subrogation rights in the $11,111.12 balance from a third-party settlement; and (4) appellee's attorney was entitled to attorneys' fees. We hold that the Commission's decision is supported by substantial evidence; accordingly, for the reasons stated below, we affirm the decision of the Commission.
Appellee Jimmy McDonald worked for appellant as a mechanic. On November 21, 2000, McDonald sustained a compensable back injury when the tractor he was driving was rear-ended by another vehicle. He received $25,000 in settlement of his action against the third-party tortfeasor. Dr. Wilbur Giles, a neurosurgeon, treated appellee's injuries; appellee had surgery for his injuries in May 2001. At the time of the hearing, appellee was fifty-eight years old and testified that Logan County had not offered to put him back to work since his release, but that he believed there were limited things that he could do should he be offered a job . He testified that he had looked for work and had applied for jobs at Tyson's, Jarrad Auto Parts, Parts Plus, Logan County Sheriff's Office, and Lensing Brother's, a lumberyard/warehouse, but had not heard anything from any of these employers. Appellee admitted that he had not applied for any more jobs since the vocational consultant, Terry Owens, informed him that he could not get a job with the Logan County road department. Appellee noted that he still suffers from back pain, that he cannot sit for extended periods of time, that he suffers from depression as a result of not being able to find work, and that the injury has negatively affected his conjugal relationship with his wife. He further noted that he was still under the care of his primary doctor, and that he takes five medications for his back.
Appellee's wife, Kathleen McDonald, a registered nurse, testified that she and appellee had been married for thirty-eight-and-one-half years, and that since her husband's injury , she has experienced a loss of his services in regard to household repairs. She testified that their conjugal relationship had also suffered. Mrs. McDonald noticed that, since appellee's back injury, he has developed a "Parkinson-type tremor in his right leg when he first stands." She also observed that her husband "walks in a permanently bent-forward position." Prior to her husband's injury, Mrs. McDonald stated that her husband was very active. Some of his activities included mowing the grass, building a house roof, and riding four-wheelers. Mrs. McDonald opined that, since his injury, appellee cannot do any heavy lifting and can only perform light mechanical work.
Vocational consultant, Terry Owens, testified at the hearing that she was referred to appellee's case and had assisted him in acquiring work. Owens stated that appellee's work interest remained in mechanical work and repair. She looked for mechanical work, in addition to factory and production, janitorial, and security work. Owens opined that she created a rehabilitation plan for appellee based on his physical abilities, work history, educational background, and vocational interest. She provided appellee with job leads and determined that appellee was employable.
Following the testimony at the hear
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