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Steets v. Workers' Compensation Appeal Board10/31/2005
opinion that Miss Steets has suffered a permanent injury resulting in loss of use for all intents and purposes of the right lower limb, again permanently.
Id. at 44-46.
On cross-examination, Dr. Kamen also testified:
Q: Her injury is permanent, Doctor, but there are possibilities that, even though it's permanent, the condition could improve, correct, as it relates to her right leg and right knee?
A: Her injury is permanent to her right leg, her right knee. What's not permanent is the behavioral capacity of this young woman to change at age 23 or 24 and evolve into somebody with greater maturity and insight as to how she can control her own destiny. That is the variable and it's part of human nature. I think the physical component of her pain and her physical condition with respect to the knee is going to stay the same.
Id. at 53 (emphasis added).
In workers' compensation matters, the WCJ decides issues of credibility and evidentiary weight. Schemmer v. Workers' Comp. Appeal Bd. (U.S. Steel), 833 A.2d 276, 280 n.7 (Pa. Cmwlth. 2003), petition for allowance of appeal denied, 578 Pa. 703, 852 A.2d 314 (2004). His or her determinations will remain undisturbed so long as they are supported by substantial evidence, which is that relevant evidence a reasonable mind might accept as adequate to support a conclusion. Id. Moreover, a WCJ is free to accept or reject a witness' testimony, either in whole or in part. Id. Here, the WCJ credited Dr. Kamen's opinion that Steets had suffered a permanent injury to her right knee and leg, resulting in a complete loss of use for all practical intents and purposes. The fact that Dr. Kamen also believed Steets might improve other aspects of her physical and emotional state with proper medical treatment does not erode his expert opinion with respect to her right lower limb.
As well, " ur courts have often looked to the claimant's testimony and/or the referee's personal observation of the injured extremity as further support of a finding of loss of use." Bakula, 577 A.2d at 964. In this instance, Steets acknowledged on cross-examination:
Q: . . . I'll ask this. This is my understanding as to what you testified to in terms of improvement. I understand that you're testifying that you are able to bend your right leg at the right knee more than you used to be ; that you notice less swelling in your right leg than you used to notice; that your right ankle is now straight as opposed to being clubfooted; and you are able to bear slightly more weight on your right leg than you used to be . You can also apply lotions and creams to your right leg. Is that the extent of the improvements that you have noticed since you first began treating with Dr. Knobler in November of 1999?
A: That with more, yes.
Q: What other improvements have there been?
A: I can sleep in a bed instead of sleeping on a chair. I can elevate my leg. I can take a shower longer than five minutes and not resort to a sponge bath. I can go up and down steps; I'm not living on one floor in a house. I can actually go down and interact with people now, where before I couldn't do any of that.
Notes of Testimony, Hearing (dated April 23, 2003) at 31-32. Steets further testified that she cannot walk without crutches and that she needs crutches to traverse the stairs. She uses crutches to stand in the shower. She also stated that she can stand without crutches, but for less than five minutes, and that her sister helps her in and out of the shower. Id. at 29, 32-34. We note that Steets suffered her work injury more than five years before she provided this testimony.
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