After careful consideration, we deem reasonable, and hereby adopt as our own, the administrative law judge’s determination that employee sustained 50% permanent partial disability of the body as a whole referable to the lumbar spine as a result of the work injury of August 28, 2006. The administrative law judge also determined that employee is not permanently and totally disabled. Although we acknowledge that this is a close case, and there
is considerable evidence on this record to support the administrative law judge's determination in this regard, we ultimately disagree, for the following reasons.
The administrative law judge expressly found employee to be a credible witness. However, she rejected employee's testimony that she has a need to lie down during the day to relieve her low back pain; based upon a legal conclusion that employee provided insufficient evidence establishing such need "within a reasonable degree of medical certainty." Award, page 14. The administrative law judge reached this conclusion based on a perceived failure on the part of employee's medical expert, Dr. Koprivica, to assign a medical "restriction" upon employee's activities in line with such complaint. ${ }^{1}$
First, we disagree that there is a material distinction, for our purposes, between Dr. Koprivica's explicit endorsement (albeit phrased as a "limitation") of employee's complaint that she needs to lie down during the day to relieve her symptoms, versus a "restriction" that employee must do so for purely safety reasons. ${ }^{2}$ Second, although evidence with regard to whether an accident caused any degree of permanent disability may, in some cases, be susceptible to the reasonable degree of medical certainty standard, see § 287.190.6(2) RSMo, we must disclaim any suggestion that issues regarding the nature and extent of disability must be so proven.
This is because, as the courts of this state have long held, the "degree of disability is not solely a medical question," and "[d]eciding the percentage or degree of disability to award a claimant is a finding of fact within the unique province of the Commission." ABB Power T \& D Co. v. Kempker, 236 S.W.3d 43, 52 (Mo. App. 2007). Stated another way, if the administrative law judge generally believed (as appears to be the case) employee's testimony, she was not precluded as a matter of law from crediting her testimony regarding a need to lie down during the day merely because employee did not provide expert medical testimony describing such need as a "restriction." We adopt the administrative law judge's finding that employee's testimony is credible, as we discern no basis to determine otherwise. We find that employee has a need to lie down unpredictably throughout the day to control her low back pain.
Second, we note that the administrative law judge relied on a determination that employer's vocational expert, James England, provided the most persuasive opinion with regard to the issue of permanent total disability, because his was "the only vocational opinion setting forth the jobs [employee] is physically capable of doing, per the medical restrictions set forth." Award, page 19. But the question of permanent total disability does not turn solely on an analysis of what jobs employee might physically be capable of performing within the restrictions from her doctors, instead, as our courts have consistently declared:
The test for permanent total disability is whether the worker is able to compete in the open labor market. The critical question is whether, in the ordinary course of business, any employer reasonably would be expected to hire the injured worker, given his present physical condition.
Molder v. Mo. State Treasurer, 342 S.W.3d 406, 411 (Mo. App. 2011).
[^0]
[^0]: ${ }^{1}$ Dr. Koprivica, notably, did endorse employee's need to lie down in his report, when he agreed that such is consistent with employee's presentation; however, at his deposition, he suggested this was perhaps better termed a "limitation" referable to employee's subjective complaints, rather than a "restriction" assigned from a purely safety standpoint. See Transcript, pages 200-01.
${ }^{2}$ It would seem that an injured worker's need to unpredictably lie down during the day would nearly always correlate to the relief of subjective symptoms, rather than some safety precaution.
An employee may be, strictly speaking, capable of performing a particular job's duties without violating her doctors' restrictions, but this does not alone establish that the employee is capable of successfully competing for and securing such job in the open labor market. Accordingly, we look at the persuasive evidence as a whole, and ask whether a hypothetical employer might have been likely to hire employee as of July 22, 2010, the date she reached maximum medical improvement from the effects of the work injury. ${ }^{3}$
After a thorough review of the entire record, we find most persuasive the testimony from the vocational expert Terry Cordray with regard to this issue. Mr. Cordray believes it is unreasonable to expect any employer in the normal course of business to hire employee, given her age, history of back injuries requiring multiple surgeries, use of narcotics and other pain medications that affect her cognitive abilities, lack of transferable skills, and lack of education beyond securing her GED in 1983. Mr. Cordray also pointed out that employee lives in rural Hickory County, and that the potential labor market there is extremely limited in terms of the jobs employee might potentially qualify for given her vocational background and physical restrictions.
We acknowledge that employee continued to work for employer for several years after suffering the August 2006 work injury, which would tend to suggest that employer, at least, found her to be reasonably capable of performing her work duties. On the other hand, employee credibly testified that during her continued work for employer after the last injury, she had to take breaks to lie down on the floor or go sit in her car, and that she went home at night crying because of the extent of her pain. We are also mindful that employee was working for employer under the influence of multiple prescription pain medications, including narcotics. Employer's willingness to permit this longtime employee to remain employed after suffering a workers' compensation injury does not necessarily demonstrate that another employer would be willing to accept employee as a new hire, if she were forced to compete on the open labor market.
Especially when we examine the totality of the circumstances surrounding employee's leaving her work for employer, we are persuaded that, as Mr. Cordray credibly opined, employee would not be an attractive hire. The administrative law judge, in her findings, suggested employee left her work solely because she was personally offended when another coworker complained to supervisors that employee wasn't doing her fair share of the work. We view the evidence somewhat differently. Employee explained that she quit after her supervisor, Mr. Beam, called her into his office and asked if she was taking prescription medications at work. When employee admitted that she was, Mr. Beam told her that she probably shouldn't be "working under the influence," and advised her to apply for disability. Transcript, page 65. This evidence, in our view, critically undermines any argument that employee's continued work for employer demonstrates an ability to compete in the open labor market.
In sum, we find Mr. Cordray's vocational analysis most persuasive with respect to this issue. We find that employee is permanently and totally disabled. Mr. Cordray expressly found the combination of employee's 2006 and 2005 low back work injuries to result in her inability to compete for work in the open labor market. We credit that opinion. We find that employee is permanently and totally disabled owing to the combination of the primary injury and employee's preexisting disability referable to the low back.
[^0]
[^0]: ${ }^{3}$ At the hearing in this matter, the parties placed in dispute the issue when employee reached maximum medical improvement. The administrative law judge did not make a specific finding, in her award, with regard to this issue. We find that employee reached maximum medical improvement on July 22, 2010, the last date that employee saw Dr. Salim Rahman for follow-up treatment in connection with his June 30, 2010, T9-10 laminotomy with implantation of a dorsal column stimulator.