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Steets v. Workers' Compensation Appeal Board10/31/2005
tablish that she is forever precluded from returning to some type of work. Specifically, she argues: "The mere temporary limitation accompanied by the use of crutches on [Steets'] ability to return to certain types of employment until she has reached maximum improvement, does not preclude from returning to the workforce at all." Petitioner's brief at 14. Further, she asserts that the strides that she has made since treating with Dr. Knobler preclude a finding of specific loss. In this regard, she argues: "[Steets] has gone from a limb that could not move at all, bear weight, or tolerate touch, to one that can be clothed, flexed, and can tolerate weight. Such improvements indicate [Steets'] leg is not a total loss." Id. at 7.
We explained in Faulkner Cadillac v. Workers' Compensation Appeal Board (Tinari), 831 A.2d 1248, 1254 (Pa. Cmwlth. 2003), petition for allowance of appeal denied, 579 Pa. 705, 857 A.2d 680 (2004):
The test applied to determine a claimant's entitlement to specific loss benefits is whether the claimant has suffered the permanent loss of use of the injured member for all practical intents and purposes. . . .
Whether a claimant has lost the use of a body part is a question of fact; whether a claimant has lost the use of a body part for all practical intents and purposes is a mixed question of law and fact. . . . (Citations omitted). Furthermore, this "court has often stated that a body part need not be of absolutely no use in order for there to be a loss of use for all practical intents and purposes." Bakula v. Workmen's Comp. Appeal Bd. (Budd Co.), 577 A.2d 961, 963 (Pa. Cmwlth. 1990) (citation omitted). And, in determining whether a specific loss has occurred, the workers' compensation authorities and this court have considered whether a claimant can rely on the injured member to perform a variety of daily activities. See, e.g., Faulkner Cadillac, 831 A.2d at 1254-55; Wise, 810 A.2d at 752, 754. It is, of course, "well settled that specific loss benefits are payable without regard to a claimant's earning capacity." Faulkner Cadillac, 831 A.2d at 1253 [citing Lente v. Luci, 275 Pa. 217, 119 A. 132 (1922)].
In the matter sub judice, Dr. Kamen acknowledged that Steets had not achieved maximum medical improvement from her work-related injury because "she could regain further upper body function, perform sedentary and cognitive tasks, given the right milieu for recovery and rehabilitation, within a reasonable degree of medical certainty." Deposition of Dr. Leonard Kamen (dated December 19, 2002) at 44.
Nonetheless, Dr. Kamen also pertinently testified as follows:
A: And, Doctor, did you reach any opinions within a reasonable degree of medical certainty as to whether you were able to conclude if the injuries Miss Steets had sustained to her right knee and right leg had become permanent in nature?
A: Yes, it was my opinion within a reasonable degree of medical certainty that Miss Steets had signs, symptoms and objective studies that placed her injury in a permanent category. These injuries were specific to the mechanism of her right knee as well as the neurological condition surrounding her pain. I did not feel that she would ever have full restoration of the function of that knee mechanically nor would she likely achieve complete normalcy in regard to her neurological injuries and the subsequent damage that it had caused.
Q: And were you also able to form a medical opinion within a reasonable degree of medical certainty as to whether Miss Steets had, from a mechanical and functional perspective, lost complete use of her right leg for all practical intents and purposes?
A: It is my
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