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Medical Evidence Not Required to Prove Compensability of Disfigurement

Fiske v. Echostar Communications Corp. (ICAO Feb. 12, 2014)

In Fisk v. Echostar Communications Corp. the Industrial Claim Appeals Office ruled that disfigurement benefits can be awarded without medical evidence linking the disfigurement to the compensable injury. The claimant in that case contracted Dengue fever as a result of being bitten by a mosquito while on a job site in India. The claimant testified that the Dengue fever caused joint pain in his knees and resulted in a limp.

The claimant's treating physician issued a report stating that research studies did not support the claimant's view that the disease caused his joint pain. The claimant sent the doctor an article he found in a medical journal which featured one case where it was believed that a patients' joint pain was caused by Dengue fever. The treating physician disagreed with the findings in the article and considered them inadequate to support the claimant's assertions.

The ALJ found that the claimant's testimony was persuasive and ordered $750 in disfigurement benefits because of the limp. On appeal, the respondents argued that there was no medical evidence to support the ALJs conclusion that the limp was caused by the Dengue fever. ICAO ruled that medical evidence was not necessary to prove a linkage between disfigurement and a compensable injury.

There are several instances in the Colorado Workers Compensation Action where medical evidence is required to establish a particular fact or entitlement to a benefit. The claimant's attending physician makes a determination on maximum medical improvement. The treating physician's release of the claimant to full duty ends the claimant's entitlement to temporary disability benefits. Mental impairment must be proven by testimony of a physician or psychologist.

However, some issues or entitlements to benefits do not require medical evidence. A case can be reopened without a report from a doctor stating that the claimant's condition has worsened. Temporary benefits can start on the claimant's testimony that he cannot work because of his injuries. No medical opinion is required. Even in proving that the claimant was injured, medical evidence is not needed. The testimony of the claimant or other non-experts can suffice. Of course, it is usually best to have medical evidence along with lay testimony to establish compensability or entitlement to specific benefits. But the ALJ is not bound by the lack of medical evidence and can disregard medical evidence to the contrary.

It should be noted that in this case that the respondents did not send a transcript of the hearing as part of their appeal. Therefore the ICAO had to presume the ALJ's findings of fact were supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988).

Some disfigurement is so obviously caused by an on-the-job injury that medical evidence linking the two is superfluous, for example, a cut or surgical scar. A limp caused by Dengue fever would be less clear. Still, in this case, the testimony of the claimant alone was sufficient.

The takeaway from this is that while medical evidence is not needed for an ALJ to tie a disfigurement to an injury, the best practice is to have such evidence in the record. This is particularly true when the cause of the disfigurement is not obvious.

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