The administrative law judge determined that employee suffered a 45% permanent partial disability of the right upper extremity as a result of a right shoulder injury employee suffered on April 13, 2011. The administrative law judge also found that employee is permanently and totally disabled based on the combination of the April 2011 injury and the effects of employee's preexisting disabling conditions.
On appeal, the Second Injury Fund argues that the administrative law judge erred, as a matter of law, in finding, as a factual matter, that employee is permanently and totally disabled, because § 287.190.6(2), RSMo, provides, in relevant part, that "[p]ermanent partial disability or permanent total disability shall be demonstrated and certified by a physician." The Second Injury Fund argues that because employee did not present an opinion from a doctor specifically stating that he is unable to perform any work, this statutory provision requires that we deny the claim for permanent total disability benefits. We disagree, for the following reasons.
We first note that § 287.020.6, RSMo, provides as follows: "The term 'total disability' as used in this chapter shall mean inability to return to any employment and not merely mean inability to return to the employment in which the employee was engaged at the time of the accident." The Missouri courts have identified the following test for permanent total disability:
Injury No.: 11-027708
Employee: Ronald Williams
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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) (citation omitted).
When the question is the nature and extent of permanent disability, the courts have consistently instructed that the "degree of disability is not solely a medical question." *ABB Power T & D Co. v. Kempker*, 236 S.W.3d 43, 52 (Mo. App. 2007).
The Commission may consider all the evidence, including the testimony of the employee, and draw all reasonable inferences in arriving at the percentage of disability. This is a determination within the special province of the Commission. The Commission is also not bound by the percentage estimates of the medical experts and is free to find a disability rating higher or lower than that expressed in medical testimony. This is due to the fact that determination of the degree of disability is not solely a medical question. The nature and permanence of the injury is a medical question, however, the impact of that injury upon the employee's ability to work involves considerations which are not exclusively medical in nature.
*Elliott v. Kan. City School Dist.*, 71 S.W.3d 652, 657 (Mo. App. 2002) (citation omitted).
Turning to § 287.190.6(2), RSMo, we next observe that this section does not specifically require that an employee advance an opinion from a doctor that he or she is permanently and totally disabled; instead, the legislature used the words "demonstrated" and "certified" to describe the type of medical proof that will support a claim for benefits premised on permanent disability. Turning to our dictionary, we find the following definitions, set forth in relevant part:
**Certify**
- to attest especially authoritatively or formally: CONFIRM
- to inform with certainty: ASSURE
**Demonstrate**
- a. **INDICATE**: point out b. to manifest clearly, certainly, or unmistakably: show clearly the existence of
- a. to make evident or reveal as true by reasoning processes, concrete facts and evidence, experimentation, operation, or repeated examples
- b. to illustrate or explain in an orderly and detailed way especially with many examples, specimens, and particulars[.]
*Webster's Third New International Dictionary* 367, 600 (2002).
Injury No.: 11-027708
Employee: Ronald Williams
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The foregoing does not, in our view, imply or mandate any requirement that a medical expert in a workers' compensation case specifically address or attempt to resolve the question whether the test for permanent total disability under Chapter 287 has been satisfied. Rather, it would appear that the statute requires only that medical experts "attest authoritatively," "confirm," "manifest clearly," or "make evident or reveal" the extent of an employee's physical functioning by making findings on examination, rendering diagnoses as to the employee's medical conditions, and identifying restrictions or recommendations as to the employee's physical activities referable to those diagnoses. These medical findings serve to "demonstrate" or "certify" the employee's physical condition; based on such medical findings, and the record as a whole, we are left to consider and answer the question whether the employee is permanently and totally disabled for purposes of Chapter 287, because "[t]he Commission, and not the physician, is the trier of fact in workers' compensation cases." *Sanderson v. Porta-Fab Corp.*, 989 S.W.2d 599, 603 (Mo. App. 1999) (citations omitted).
Consistent with the well-established test for permanent total disability in Missouri set forth above, a proper analysis of employability requires not only the medical identification of physical limitations but also consideration of issues such as job requirements, job availability, transferable skills, and prospects for retraining. In many (and perhaps most) cases, physicians do not possess the training, experience, or access to information necessary to render competent opinions regarding an injured worker's prospects for returning to any employment. Our courts have consistently recognized this reality, and a number of decisions have, in unmistakable fashion, affirmed and defended the discretionary province of the fact-finder from overly technical challenges to the sufficiency of a party's medical evidence:
> [T]he record need not contain a single expert opinion addressing the entirety of a claimant's conditions. Rather, the Commission may consider the opinions of multiple experts of differing specialties to arrive at its factual determination as to the parts and sum of a claimant's conditions.
*Patterson v. Cent. Freight Lines*, 452 S.W.3d 759, 767 (Mo. App. 2015).
SIF contends that the Commission erred as a matter of law in awarding permanent and total disability benefits by failing to apply the appropriate statutory standard in its finding that Majors is permanently and totally disabled. Under Section 287.190.6(2) RSMo "permanent partial disability or permanent total disability shall be demonstrated and certified by a physician." In its finding of permanent and total disability, the Commission was authorized to rely upon the substance of Dr. Stuckmeyer's medical conclusions as to the severity of Majors' knee injury and physical restrictions thereto in combination with his severe pre-existing knee disability and the necessity for future total knee replacement. Though Dr. Stuckmeyer may not have used "magic words" like "certify" and "permanent and total disability," the clear and plain import of Dr. Stuckmeyer's testimony is that Majors' workplace accident
Injury No.: 11-027708
Employee: Ronald Williams
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was the prevailing factor in causing an extremely debilitating and continuing disability severely restricting Majors' ability to perform the functions of his previous employment or any similar employment in the future. ... SIF's attempt to foist a hyper-technical "magic words" test upon Dr. Stuckmeyer's testimony violates the dictate of our Supreme Court in *Malam v. Dep't of Corr.* directing us to consider the words of a medical expert and, in context, apply "the plain meaning of the medical expert's testimony." This is precisely what the Commission has done in interpreting the plain meaning of Dr. Stuckmeyer's testimony and the Commission has not erred in doing so.
*Treasurer of Mo. v. Majors*, 506 S.W.3d 348, 352-53 (Mo. App. 2016), citing *Malam v. Dep't of Corr.*, 492 S.W.3d 926 (Mo. 2016).
Consistent with the definition of "total disability," we interpret § 287.190.6(2)'s mandate that permanent total disability "be demonstrated and certified by a physician" to require that a physician show clearly and attest as being true the employee's medical condition and resulting work-related restrictions post injury. Once a physician does that, the requirement of § 287.190.6(2) is satisfied, and it is within the Commission's expertise to determine whether the employee, with the medical conditions and physical limitations confirmed by the physician, is employable.
*Moss v. Treasurer of Mo. - Custodian of the Second Injury Fund*, 570 S.W.3d 110, 116 (Mo. App. 2018)(citing *Patterson*, 452 S.W.3d 759, 767 (Mo. App. 2015).
The doctor in *Moss* opined that
> Mr. Moss has very limited work capabilities. His ability to work would be limited to a sedentary occupation that requires mostly sitting, with the ability to change positions as needed. He will not be capable of repetitive right upper extremity work. His weight capability should be no more than 10 pounds from waist to shoulder using both hands. He is not capable of above shoulder work with his right arm. He is not capable of repetitive bending from the waist more than on an occasional basis, from his previous lumbar spine injury.
*Moss*, 570 S.W.3d at 113-14.
Even though the doctor in *Moss* actually opined that the employee could perform sedentary work, the court concluded:
> This does not suggest, however, that the doctor concluded that Moss was, in fact, employable and, therefore not permanently and totally disabled. Rather, this evidence simply reflects the type of work restrictions applicable to Moss after his injuries, if he were employable.
Injury No.: 11-027708
Employee: Ronald Williams
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The court then upheld the Commission's decision by stating:
> In exercising its expertise to determine the technical question of employability, the Commission credited not only the medical opinion of Dr. Hopkins but also the testimony of two vocational experts, both of whom concluded that Moss's inability to perform repetitive motions with his right (dominant) hand and his need to change positions frequently combined to preclude him from competing in the open labor market.
The record reflects that the Commission properly applied the test for determining permanent total disability and considered Moss's employability. Specifically, the Commission was convinced both by Dr. Hopkins's testimony that Moss's combined shoulder, elbow, and low back conditions were serious enough to constitute a hindrance or obstacle to employment for the purposes of § 287.190.6(2) and by the testimony of two vocational experts who found Moss to be permanently and totally disabled.
As applied to the facts in this matter, we also find that emplo