The majority errs in finding that employee Brenda J. Smith is not permanently and totally disabled.
Section 287.020.6 defines total disability "as the ability to return to any employment and not merely the inability to return to the employment in which the employee was engaged at the time of the accident." The test for permanent and total disability is whether, given the employee's situation and condition, she is competent to compete in the open labor market. Reiner v. Treasurer of the State of Missouri, 837 S.W.2d 363,367. The most important question is whether an employer in the usual course of business would reasonably be expected to employ the employee in her present physical condition. Id. at 367. Additional factors such as work, experience, education, and age may be considered in determining employability. Reves v. Kindell's Merc. Co., Inc., 793 S.W.2d 917 (Mo. App. 1990).
The question of whether an employee is totally and permanently disabled is not exclusively a medical question and the Commission need not rely exclusively on the testimony of medical experts; rather, it may consider all the evidence and the reasonable inferences drawn from that evidence. Lewis v. Kansas Univ. Med. Ctr., 356 S.W.3d 796,802 (Mo. App. 2011). The Commission may even rely on testimony from the claimant herself. See Pavia v. Smitty's Supermarket, 118, S.W.3d 228, 234 (Mo. App. 2003).
The administrative law judge, while finding the employee to be a poor historian, specifically found that employee did not intentionally misrepresent facts but rather "appeared easily confused during both direct and cross-examination". ${ }^{1}$ She noted that employee alternated between standing and sitting several times during the hearing due to back discomfort and verbalized, "[O]uch". ${ }^{2}$ The administrative law judge's assessment of the employee's credibility, based on her personal observations at hearing, is at odds with Dr. Michael C. Chabot's disparagement of employee's moral character, upon which the majority relies. For this reason, Dr. David T. Volarich's expert opinion regarding the nature and extent of employee's permanent disability is entitled to greater weight.
Dr. Volarich opined that employee was permanently and totally disabled following her May 17, 2016, work injury. Dr. Stephen W. Nagy, employee's treating physician for over ten years, corroborated Dr. Volarich's opinion. In a letter dated March 21, 2017, Dr. Nagy stated, "[N]umerous symptoms and medication side effects make it impossible for [employee] to maintain any type of gainful employment." ${ }^{3}$ He further opined that employee's condition was likely to worsen over time. In that the administrative law judge found that employee's permanent and total disability was not due to the last
[^0]
[^0]: ${ }^{1} Award, p. 14.
{ }^{2} \mathrm{Id}.
{ }^{3}$ Transcript, p. 185.
injury, it is clear that employee's permanent and total disability is due to a combination of pre-existing injuries and her primary injury.
As previously stated by this Commission:
[It is] our view that the 2013 amendments [to § 287.220] are not unconstitutional, in that no rights were extinguished. This is because, "in the absence of an apportionment statute or second injury fund legislation, the employer is liable for the entire disability resulting from a compensable injury [.]"Fed. Mut. Ins. Co. v. Carpenter, 371 S.W.2d 955, 957 (Mo. 1963). In our view, the 2013 amendments to $\S 287.220$ work the effect that employers and their insurers are now liable for any enhanced permanent partial disability that results from the synergistic combination of preexisting disabilities and primary injuries occurring after January 1, 2014, as the legislature has clearly removed from employers the prior protections of the Second Injury Fund for these kind of synergistic injuries. By the same token, we believe an employer is liable for any claim of permanent total disability resulting from the combination of preexisting disability with a subsequent compensable primary injury, where the facts and circumstances of the claim do not satisfy the new and more rigorous standards set for the under $\S 287.220 .3(2)$ for proving a compensable claim of permanent total disability against the Second Injury Fund. Rather than extinguishing any rights or removing any existing remedy, the legislature in 2013 merely shifted back to employers and their insurers any liability that would have otherwise rested with the Second Injury Fund. ${ }^{4}$
The employee's credible testimony and the weight of the more credible expert testimony in the record supports a finding that employee is permanently and totally disa