W.C. No. 3-972-633Industrial Claim Appeals Office.
January 12, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ), which awarded disfigurement benefits. We affirm.
It is undisputed that the claimant sustained a bilateral hearing loss as a result of her industrial injury. Consequently, she is required to wear hearing aids in both ears.
Under these circumstances, the ALJ concluded that the claimant is entitled to $2,000 compensation for disfigurement pursuant to § 8-42-108, C.R.S. 1997. In support of this determination, the ALJ found that wearing the hearing aids draws attention to the claimant’s “diminished physical being.” Thus, the ALJ held that hearing aids constitute an “observable impairment of the natural appearance” of the claimant.
On review, the respondents contend that the wearing of hearing aids does not constitute a disfigurement within the meaning of § 8-42-108. The respondents reason that the hearing aids do not constitute a physical alteration of the claimant’s “head, face, or parts of the body normally exposed to public view.” We are not persuaded.
Section 8-42-108 provides as follows:
“If any employee is seriously, permanently disfigured about the head, face, or parts of the body normally exposed to public view, the director, in addition to all other compensation benefits provided in this article, may allow such sum for compensation on account thereof as the director may deem just, not exceeding $2,000.”
In construing a statute, the principal objective is to effect the legislative intent. Legislative intent is first determined by giving the words and phrases in the statute their plain and ordinary meanings. If no ambiguity is apparent, the statute should be applied as written. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). However, to the extent a statute is ambiguous, we may consider the problem sought to be solved by the statute. Further, we should construe the statute in the context of the other provisions of the statutory scheme, so as to give consistent, harmonious, and sensible effect to all parts of the act. Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
As the ALJ noted, there appears to be no Colorado case law resolving the issue of whether the wearing of hearing aids constitutes a disfigurement about the claimant’s head within the meaning of § 8-42-108. However, in Arkin v. Industrial Commission, 145 Colo. 463, 358 P.2d 879 (1961), the supreme court held that a claimant’s loss of teeth was a compensable disfigurement even though repaired by the installation of a bridge. In so doing, the court stated that a disfigurement “is an observable impairment of the natural appearance of a person.”
Here, it is undisputed that the hearing aids are observable to the public and constitute an alteration of the claimant’s “natural appearance.” Thus, under the plain language of the statute, and considering the judicial interpretation of the act, we agree with the ALJ that the hearing aids are disfiguring.
Moreover, the disfigurement is one “about” the claimant’s head. The American Heritage College Dictionary, Third Edition, states that one definition of the word “about” is “in the vicinity of” or “around.” Thus, although the hearing aids may not physically alter the claimant’s body, they certainly alter the claimant’s appearance “in the vicinity” of her head. Thus, the plain and ordinary meaning of the statutory language supports the ALJ’s conclusion.
However, even if the statute is considered to be ambiguous concerning whether or not a “disfigurement” must actually alter the claimant’s person, we would not reach a different result. I Arkin v. Industrial Commission, supra, the court stated that the “earning capacity principle is of no great significance when disfigurement results from an injury.” The court emphasized that the claimant sustained a permanent alteration of her “natural appearance” and that “a resort to an artificial device to mask the blemish does not alter a whit the fact that she sustained a mutilation of her mouth.” 358 P.2d at 884.
Thus, one of the principal objectives of our disfigurement statute is to provide a remedy for alteration of a person’s normal appearance without regard to the actual impact which such alterations may have on the claimant’s ability to earn wages. Here, the claimant has sustained a significant alteration of her natural appearance, and the statutory objectives would be undermined if we were to draw an artificial distinction between alterations in appearance to the claimant’s physical being, and alterations caused by the need to wear artificial appliances.
Moreover, we note that § 8-42-101(1)(b), C.R.S. 1997, requires respondents to provide a hearing aid as a form of medical benefit. Since the statute recognizes that hearing aids may be required, a harmonious reading of the statute results in the conclusion that the disfigurement statute recognizes that the wearing of hearing aids may result in a compensable alteration of the claimant’s appearance.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 27, 1997, 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. 1997.
Copies of this decision were mailed January 12, 1998 to the following parties:
Jane M. Felix, 27 Meadow Lake Dr., Blackhawk, CO 80403
The Griffith Center, Inc., 12163 S. Perry Park Rd., Larkspur, CO 80118
Colorado Compensation Insurance Authority, Attn: Michael Steiner, Esq. — (Interagency Mail)
Jeffrey A. Goldstein, Esq., 1763 Franklin St., Denver, CO 80218 (For the Claimant)
By: _______________________________