Opinion
W.C. No. 4-778-068.
August 3, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cain (ALJ) dated March 27, 2009, that ordered the respondents to pay the claimant $1,250.00 for disfigurement. We affirm.
The ALJ found that as a result of the September 25, 2008 industrial injury the claimant has a visible disfigurement to the body consisting of a vertical scar located above the navel. The ALJ found that the scar is approximately three inches in length, is reddish in color, and is intersected by numerous perpendicular stitch scars. The ALJ concluded that the claimant has sustained a serious permanent disfigurement to areas of his body normally exposed to public view, which entitles the claimant to compensation in the amount of $1,250.00
On appeal, the claimant first contends that he should receive added compensation for additional humiliation loss of enjoyment and embarrassment. In support of this argument the claimant asserts that he spends lots of time at a swimming pool and also in a hot tub.
To the extent that the claimant argues that the statute mandates that his disfigurement award should be no less than $4,000.00 up to $8,000.00, we do not agree. Section 8-42-108(1)permits an ALJ to award disfigurement benefits up to a maximum of $4,000 if the claimant is "seriously, permanently disfigured about the head, face or part of the body normally exposed to public view." That is what the ALJ found here. Disfigurement benefits may reach $8,000 for specific disfigurements such as the partial loss of limbs, extensive facial scars, or extensive body scars. Section 8-42-108(2); Trujillo v. RNR, W.C. No. 4-729-111 (January 23, 2008). Here the claimant's disfigurement is confined to a scar located above the navel. We perceive no error in the ALJ awarding disfigurement benefits under the general section rather that awarding benefits under the section of the act which allows for additional disfigurement award for extensive facial scars, extensive body scars or stumps due to loss of limbs.
As we understand the claimant's argument, he generally takes issue with the amount of his disfigurement award. Disfigurement benefits are awarded for the observable consequences of an industrial injury. Arkin v. Industrial Commission, 145 Colo. 463, 358 P.2d 879 (1961). However, § 8-42-108 affords the ALJ great discretion in determining the amount of compensation to be awarded for disfigurement. The ALJ views the disfigurement and is in the best position to assess what amount is appropriate. We may not interfere with the ALJ's determination regarding the amount of the disfigurement award in the absence of an abuse of discretion. An ALJ only abuses his discretion if the order "exceeds the bounds of reason." Rosenberg v. Board of Education of School District # 1, 710 P.2d 1095 (Colo. 1985). The ALJ viewed the claimant and his order reflects consideration of relevant factors. Consequently, we cannot say his order exceeds the bounds of reason.
The claimant also contends that he has a right to binding arbitration pursuant to § 8-43-206.5, C.R.S. 2009. However, the statute specifically provides that the parties must agree to submit the dispute to binding arbitration. The respondents deny that they agreed to arbitration and there is no evidence that the respondents entered into such an agreement.
IT IS THEREFORE ORDERED that the ALJ's order dated March 27, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
DAN JOHNSON, 8300 E YALE AVE #6-104, DENVER, CO, (Claimant).
LEGGETT PLATT, INC., Attn: CLAY SMITH, DENVER, CO, (Employer).
GALLAGHER BASSETT SERVICES, Attn: SUZI LIMPPO, ENGLEWOOD, CO, (Insurer).
RITSEMA LYON — DENVER, Attn: ELIOT J WIENER, ESQ., DENVER, CO, (For Respondents).