HERNIAS
IN ARIZONA WORKERS’ COMPENSATION
By Dennis R. Kurth, Associate Attorney
Workers' Compensation Specialist
Hernias, a very common
type of industrial injury, are treated differently from all other injuries in
the Arizona workers’ compensation law.
They are divided into two categories under the statute depending on
whether they are purely traumatically-caused or whether a pre-existing
abdominal wall weakness contributes to the hernia. (A.R.S. §23-1043(1) and (2)).
“Real traumatic”
hernias or “class one” hernias, are those caused by a direct injury to the
abdominal wall, whether by a strain from lifting, external force or otherwise,
which allows the viscera to protrude and where there is no proof of a
pre-existing weakness such as a prior hernia or congenital defect.
These hernias are
treated like almost all other injuries and the claimant’s burden of proof is to
establish only that the work activity contributed to the development of the
hernia. Temporary compensation benefits
for real traumatic hernias are the same as for all other injuries with no
monthly limit on indemnity benefits.
“Class two” hernias
encompass all other hernias and are the result of a combination of a
work-related strain and a pre-existing abdominal weakness. Apparently, the drafters of this legislation
felt that such hernias would be much more ubiquitous than real traumatic ones
and because not solely the responsibility of industry, deserving of only
limited compensation.
The drafters also added
some additional requirements, beyond the normal burden of proof, to these type
of hernias: (1) the immediate cause must be a “sudden effort or severe strain
or blow”; (2) that the descent of the hernia immediately followed the cause;
(3) that the cause was accompanied by severe pain; and, (4) that the pain was
so severe that the claimant reported it immediately to one or more
persons. (A.R.S. §23-1043(2)(A-D)).
Fortunately for
claimants, because the workers’ compensation law must be liberally construed,
it is not necessary to establish every requirement to the letter and case law
under the statute has softened the requirements considerably. Immediate descent means anything from several
minutes to several days. Severe pain, a
very subjective standard, can mean some pain or even no pain. Immediate communication to one or more people
means within a reasonable time. All of
these matters of proof are questions of fact for the ALJ. The distinction between the two classes of
hernia is a medical question to be addressed by the doctors.
If all of the statutory
criteria for class two hernias are met and medical testimony establishes a
causal relationship to the work activity or strain, compensation is payable for
only two months, which is usually sufficient to cover the normal recovery time
after surgery. The two month compensation limit, however, does not apply if the
treatment/surgery leads to complications which delay recovery and/or
necessitates further medical treatment.
An example of such complication could be an infected mesh which requires
further surgery.
Workers’ compensation
carriers tend to treat all hernias as class two hernias without regard to the
details. Usually a claimant will have to
successfully litigate the issue to have a compensable class one hernia. Such injured claimant should consult a worker
compensation specialist to see if their injury can be classed as a real
traumatic hernia rather than a class two hernia.
