Although a hernia is usually the result of strain, it is nevertheless classified as an accidental injury by violence within the meaning of the Louisiana Workers Compensation Act.
Importantly, it is not necessary that the strain in question be the sole cause of the disability, since any event that completes the rupture of a developing hernia is an accident that should result in workers compensation benefits being paid.
The key question here is how an employee proves that the accident in question did in fact bring about the rupture of a hernia.
A hernia can be caused by a variety of accident events which may be conveniently divided into three groups:
- Direct trauma hernias;
- Acute strain hernias; and
- Chronic strain hernias.
Proving A Hernia Injury
Hernias caused by direct trauma are fairly rare and the employee usually does not have a problems proving a direct hernia. In direct trauma hernias, the employee sustains a severe blow in the abdominal region which damages or tears the abdominal wall.
However, the majority of hernias are caused by acute or chronic strain.
The typical acute strain may be either a sudden jerk or an overexertion in lifting a heavy object.
Hernias caused by chronic strain usually occur in occupations requiring repeated minor strains, such as shoveling or lifting, which progressively weaken the abdominal wall.
A lot of times, it can be difficult to prove that a work accident caused the hernia of an employee. Generally, the employee will be able to recover workers compensation benefit if the employee can show the following:
- That there was an injury resulting in hernia;
- The sudden appearance of the hernia;
- That it occurred immediately following the injury;
- That it was accompanied by pain;
- That prior to the injury it did not exist in such degree as to disable the worker appreciably.
Eyewitness Testimony In A Hernia Case
In a hernia case, the most important evidence on the issue of whether the accident caused or ruptured the hernia is eyewitness testimony of the accidental strain or blow. Positive proof of this kind in the employee's favor strongly influences recovery of benefits.
And, if there is negative testimony about the lack of eyewitness testimony of the accidental strain or blow, that still will not make it impossible for the employee to win his or her case.
In fact, the main difficulty of proof in hernia cases arises from the lack of eye witnesses, who are usually available only where the employee and a fellow co-worker were doing a job together.
In most cases, when there is no solid eyewitness testimony, the workers compensation judge will look to circumstantial evidence, and often accept the employee's own version of the accident. But if the eyewitness testimony is inconsistent or vague, it probably will not help the employee win his or her case.
Usually, many factors serve as circumstantial evidence to prove that the employment caused the hernia. The Louisiana Workers Compensation Act singles out two specific requirements (prompt reporting of the accident, and attendance by a physician within thirty days) and one general requirement (proof that an accident occurred within the employment).
The ideal circumstantial proof of causation in hernia cases would include a showing of all of the following:
- That prior to the accident, the employee was not already the victim of a disabling hernia;
- That the accident in question was of a character or type likely to produce a hernia;
- That the employee immediately stopped working;
- That the employee immediately complained to fellow workers or the representative of his or her employer; and
- That the employee was immediately examined and found to have a disabling hernia.
Reporting of the Hernia
The Louisiana Workers Compensation Act itself requires, as to the last two factors, “prompt” reporting and attendance by a physician within thirty days.
Louisiana workers compensation judges will often strongly consider ruling in the employee's favor when the following occur:
- A preemployment examination showed that the employee was free from hernia or at least was employable;
- Witnesses, family, or friends testify that there were no hernia symptoms before the accident; and
- The employee previously had never suffered from a hernia;
- The employee had engaged in strenuous manual labor up to the time of the accident, but was unable to do so afterwards.
However, by continuing work or by failing to complain of injury after the alleged accident, the employee's chance of success may likely decrease. But again, all of these are just factors to consider, and just one of these factors alone will not likely determine the outcome of an employee's claim.
Yet these factors can tilt the balance in the employee's favor, or work against the employee. And a skilled attorney can help the employee explain away any problems with the employee's claim.
For example, the failure to mention the injury to fellow employees or the employer may sometimes be explained by the fact that the employee was unaware of the seriousness of the injury when the accident occurred, or that the employee was afraid of losing his or her job.
Last, testimony of the physicians who examined the employee soon after the alleged hernia-producing accident is obviously very useful both in proving that there was such an accident, and in proving that the accident did cause the hernia.
In most cases, where the results of such an examination have indicated that no hernia existed following the accident, recovery will be denied. But medical testimony that a hernia existed soon after the alleged accident strongly favors recovery of workers compensation benefits by the employee.