W.C. No. 4-189-111Industrial Claim Appeals Office.
January 20, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ Erickson), which declined to award additional benefits for disfigurement. We affirm.
In an order dated September 19, 1995, ALJ Rumler awarded the claimant disfigurement benefits of $1,500.00 for scars on both of her wrists. ALJ Rumler described the scars as “zig zag” white scars approximately three inches in length.
In January 1997, the claimant underwent additional surgery on her right wrist. Subsequently, the claimant requested additional disfigurement benefits, and submitted a photograph in support of her claim. The photograph depicts a zig zag scar which appears to be located on the top of the claimant’s right wrist.
ALJ Erickson then entered an order denying the claimant’s request for additional disfigurement benefits. The ALJ Erickson stated that the photograph did not reveal any additional scarring from that described in ALJ Rumler’s order, and therefore, the claimant had not proven entitlement to additional benefits.
Following ALJ Erickson’s order, the claimant petitioned for review arguing that the ALJ misinterpreted the evidence. Specifically, she argued that she had two “z-shaped” scars on her right wrist and one of them was attributable to the 1997 surgery. In support, the claimant submitted an additional photograph depicting both her right and left hands. These photographs depict z-shaped scars running from the base of the thumb to the wrist along the outsides of the claimant’s hands.
On review, the claimant contends that the evidence establishes that she is entitled to additional disfigurement benefits in light of the two scars on her right hand. She also suggests that someone come to her home in Oklahoma to examine the scars.
Section 8-42-108, C.R.S. 1997, affords an ALJ great discretion in determining the amount of compensation to be awarded for disfigurement. Consequently, we must uphold the ALJ’s order unless it exceeds the bounds of reason, as where it is unsupported by the evidence or contrary to the law. See Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
Further, the claimant had the burden of proof to establish a right to additional disfigurement benefits. Section 8-43-201, C.R.S. 1997. The question of whether the claimant carried her burden is one of fact for the ALJ. See Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). In reviewing the ALJ’s finding that the claimant failed to carry her burden, we must uphold the order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997.
Here, we find no abuse of discretion in the ALJ Erickson’s order. The photograph which the claimant submitted in connection with her request for additional benefits is consistent with the disfigurement described in ALJ Rumler’s 1995 order. Thus, the record before ALJ Erickson, at the time of his order, amply supported his conclusion that the claimant failed to present evidence which established any new scarring.
It is true that the claimant, subsequent to the order, has submitted additional evidence in the form of a second photograph. It might be inferred from this photograph that the claimant has two scars on her right wrist. However, evidence submitted on appeal is not properly considered part of the record for review City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995).
There was also no error insofar as the claimant argues that someone should go to Oklahoma to examine her scars. The claimant cites no authority for proceeding in this fashion. In any event, she agreed to have her disfigurement rated by a photograph, and thus, waived any objection to this procedure.
IT IS THEREFORE ORDERED that the ALJ Erickson’s order dated October 28, 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 29, 1998 to the following parties:
Linda Warner Proffitt, 9711 N. 43rd East Ave., Sperry, OK 74073
Goldenbanks of Colorado, Attn: Diane Kay, 1301 Jackson St., Golden, CO 80401
Liberty Mutual Insurance Company, P. O. Box 3539, Englewood, CO 80155-3539
Jeanne M. Labuda, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
By: _______________________________