W.C. No. 4-355-011Industrial Claim Appeals Office.
September 15, 1999.
FINAL ORDER
The respondent-employer (employer) seeks review of an order of Administrative Law Judge Wheelock (ALJ) which awarded $1,500 for disfigurement. We affirm.
The ALJ found the claimant appeared for the disfigurement evaluation, but the employer did not. The ALJ noted the existence of a “surgical scar” on the claimant’s left hand, and found the scar is “serious, permanent and normally exposed to public view.”
On review, the employer argues the award of disfigurement benefits is improper because the claimant is “retaliating” for being discharged from employment, because the claimant missed medical appointments, because the claimant’s injury was the result of “negligence,” and because the claimant was “overpaid” $833.33. The employer also attached various documents to its petition to review.
The employer did not appear at the disfigurement hearing, nor did it file a response to the claimant’s application for hearing. Consequently, to the extent the employer’s arguments constitute defenses to the claim for disfigurement benefits, the employer waived these defenses by failing to raise them before the ALJ Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997).
Similarly, the documents attached to the employer’s petition to review the ALJ’s order do not constitute evidence in the case. Because these documents were not introduced before the ALJ (except for the physician’s report and Final Admission of Liability), they may not be considered on review. See Subsequent Injury Fund v. Gallegos, 746 P.2d 71 (Colo.App. 1987) (statements contained in briefs may not substitute for evidence which must appear in the record).
Insofar as the employer challenges the ALJ’s award of disfigurement benefits, we perceive no error. Section 8-42-108, C.R.S. 1999, affords the ALJ wide 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 should be awarded. Here, the ALJ’s order reflects consideration of the pertinent factors, and we perceive no abuse of discretion. See Arkin v. Industrial Commission, 145 Colo. 463, 358 P.2d 879 (1961). The ALJ was not required to credit the report of the treating physician which indicated the claimant had no disfigurement, particularly where the ALJ personally observed the scar.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 1, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed September 15, 1999 to the following parties:
Charlie Cordova, 1629 Laguna St., Pueblo, CO 81006
R. Buck Heating Air Conditioning, 409 W. 3rd St., Pueblo, CO 81003-3207
Legal Department, Colorado Compensation Insurance Authority — Interagency Mail
By: A. Pendroy