Claimant alleges he is permanently and totally disabled as a result of his 2003 injury in combination with his prior injuries. Claimant has the burden of establishing the extent of his disability. Carter v. Frito-Lay, 913 S.W.2d 341, 345 (Mo.App., E.D. 1995). This burden is met through medical evidence proving the nature and extent of the permanent disability within a reasonable degree of medical certainty. Griggs v. A.B. Chance Co., 503 S.W.2d 697, 703 (Mo.App. 1974).
The test for permanent total disability is whether, given the employee's situation and condition, he or she is competent to compete in the open labor market. Total disability means the "inability to return to any reasonable or normal employment." Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 853 (Mo. App. 1995)(citations omitted), overruled on other grounds by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 224 (Mo. banc 2003).
The medical evidence does not support Claimant's contention that he is totally disabled. Claimant's own expert, Dr. Volarich, testified Claimant could work with restrictions unless a vocational expert could not find employment for Claimant. In that case, Dr. Volarich would agree Claimant is permanently and totally disabled. In essence, Dr. Volarich defers to the vocational expert.
Claimant's vocational expert, Jim England, testified he found Claimant unable to compete in the open labor market based on Claimant's subjective complaints. When looking at the opinions of the medical experts alone, Mr. England did not feel these supported PTD and Claimant at least could perform unskilled service employment.
I do not find Claimant's testimony regarding his complaints credible for a number of reasons. Claimant testified he did not have any radicular complaints until after the 2003 injury. However, multiple medical records document Claimant's complaints into his right leg before the 2003 injury. The pain drawings Claimant himself completed before his examinations with Dr. Albana and Dr. Casey reveal complaints of pain, numbness, aching and burning into his right leg all the way to the ankle. Claimant testified at trial he did not tell Dr. Katz he had returned to his pre 2003 injury complaint level. However, in his deposition, he admitted he told Dr. Katz in April 2004 that his back was almost like it was before the 2003 injury.
In addition, the activities depicted in the surveillance video of March 27, 2004, clearly show Claimant's abilities. Just days before this video was taken, Claimant reported to his physical therapist that he could only lift very light weights and his movements were slow. He said it was painful to care for himself and he could stand no more than 15 minutes. The therapist opined Claimant perceived himself as crippled. On March 19, 2004, Claimant had advised Dr. Katz the therapy had made him worse and Dr. Katz kept Claimant off work. These complaints are inconsistent with Claimant's abilities as documented in the video just one week later.
Claimant's 2000 back injury settled for 18.75 % of his low back in May 2003. As noted above, Claimant continued to have significant complaints in his back and leg following this injury. He continued to treat with a chiropractor until days
before his 2003 injury. Claimant's expert did not substantially increase his recommended restrictions for Claimant following the 2003 injury.
Based on the evidence, I find Claimant is not permanently and totally disabled. I find Claimant returned to his pre-2003 injury baseline and has sustained no additional permanent disability as a result of his December 22, 2003, injury.