The parties disputed the issue of whether the nature and extent of the work injury rendered employee permanently and totally disabled. The administrative law judge entered an award of permanent partial disability benefits suggesting she believed that employee did not prove that he is permanently and totally disabled or unable to compete in the open labor market, because the medical evidence did not characterize ambulation deficits, narcotic pain regimens, inability to perform self-care, or marked sleep deficits. The administrative law judge noted that employee made no demonstrable attempt to alleviate his purported sleep issues and that the treatment records did not substantiate such issues. Although the medical expert reports documented employee's alleged sleep issues, the administrative law judge found those reports unpersuasive given that such reports relied upon employee's assertion of sleep difficulties.
Clearly, the administrative law judge did not credit employee's testimony regarding sleep disturbance and fatigue. Ordinarily, we defer to the credibility determinations made by an administrative law judge with respect to live witnesses. In this case, however, we believe that the validity of employee's subjective complaints must be evaluated with reference to expert medical evidence and opinion.
First, we note that from a lay perspective it seems entirely plausible that someone with significant, bilateral shoulder injuries would experience difficulty finding and maintaining a comfortable sleeping posture. We note too that employee's physical therapy records do, in fact, make references to sleep disturbance related to his shoulder problems. Most importantly, we find that employee's complaints of sleep disturbances are endorsed by Dr. Volarich, attributed by Dr. Volarich to employee's work injury, and that there is no medical evidence or testimony to the contrary.
We find the following facts. Employee did not experience sleep disruptions prior to the November 15, 2012, work injury. Although employee sleeps for about eight hours each night, and gets more sleep than before the work injury, employee wakes up several times throughout the night to reposition himself due to pain caused by sleeping on either shoulder. As a result, employee has difficulty staying awake and needs to take several naps throughout the day. In the morning, employee feels about as tired as he did before going to bed the night before. Employee testified, and we so find, that both of his shoulders feel stiff after getting out of bed in the morning and that it takes about two and a half hours for his shoulders to feel better.
Employee presented the deposition and medical reports of his medical expert, Dr. Volarich. Therein, Dr. Volarich imposed significant and permanent restrictions upon employee's ability to work. Dr. Volarich opined that employee is permanently and totally disabled by reason of his November 15, 2012, work injury, in the event that a vocational expert was unable to find a suitable job for employee.
Employee presented the deposition and report of his vocational expert, James England. Therein, Mr. England stated, based upon the physical limitations imposed by Dr. Volarich, that it was his opinion that employee was unable to perform sedentary work on a consistent
basis because such work would involve the repetitive use of employee's upper extremities. In addition, Mr. England explained that employee's disrupted sleep was another factor contributing to employee's inability to perform sedentary work. Mr. England described sedentary work as being the lowest level of competitive employment. Accordingly, Mr. England concluded that employee is unable to compete in the open labor market due to the issues with employee's bilateral upper extremities, age, and sleep difficulties.
During his deposition, Dr. Volarich stated that he reviewed Mr. England's vocational report and opined that it verified his medical opinion that employee was permanently and totally disabled by reason of the work injury. To the extent that the medical evidence presented by the parties conflicts as to the nature and extent of employee's disability, we credit the medical opinion of Dr. Volarich as set forth in the preceding paragraphs.
Employer/insurer presented the deposition of its vocational expert, Donna Abrams. Therein, Ms. Abrams disagreed with Mr. England's conclusions as set forth in his vocational report. Ms. Abrams stated that, based on the physical limitations imposed upon employee by Dr. Volarich, she determined that employee was able to compete in the open labor market. However, Ms. Abrams conceded that her analysis did not account for employee's disrupted sleep. Ms. Abrams agreed that if employee indeed has to take several naps during the day, he "may not be able to obtain and maintain a job."1 To the extent that the vocational evidence presented by the parties conflicts as to whether employee is able to compete in the open labor market, we credit the vocational opinion of Mr. England as set forth in the preceding paragraphs.
The Missouri Workers' Compensation Law defines "total disability" as the "inability to return to any employment." "The test for permanent total disability is whether the worker is able to compete in the open labor market." ${ }^{3}$ We find that employee is unable to compete for work in the open labor market owing to the effects of the work injury. As such, we conclude that employee is entitled to compensation for his permanent and total disability resulting from the November 15, 2012, work injury.