Hernia Injuries in Louisiana Workers Compensation
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 critical 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 IN LOUISIANA WORKERS COMPENSATION
Hernias caused by direct trauma are relatively rare, and the employee usually does not have a problem 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 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 challenging 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 a degree as to disable the worker appreciably.
EYEWITNESS TESTIMONY IN A HERNIA CLAIM IN LOUISIANA WORKERS COMPENSATION
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 the 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 eyewitnesses, 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 reliable 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 IN LOUISIANA WORKERS COMPENSATION
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 pre-employment 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 afterward.
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, the testimony of the physicians who examined the employee soon after the alleged hernia-producing accident is obviously instrumental 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 the recovery of workers compensation benefits by the employee.
THE LOUISIANA STATUTE ON CAUSATION OF HERNIA INJURIES IN LOUISIANA WORKERS COMPENSATION
The primary Louisiana statute on causation of hernia injuries is La. R.S. 23:1021, which reads as follows:
§1021. Terms defined
As used in this Chapter, unless the context clearly indicates otherwise, the following terms shall be given the meaning ascribed to them in this Section:
(1) “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.
(2) “Brother” and “sister” includes step-brothers and step-sisters, and brothers and sisters by adoption.
(3) “Child” or “children” covers only children born of marriage, step-children, posthumous children, adopted children, and children born outside of marriage who have been acknowledged under the provisions of the Civil Code.
(4) “Dependent” means the person or persons to whom, under the provisions of Part II of this Chapter, compensation shall be paid upon the death of the injured employee.
(5) “Assistant secretary” means the assistant secretary of the office of workers compensation administration.
(6) “Health care provider” means a hospital, a person, corporation, facility, or institution licensed by the state to provide health care or professional services as a physician, hospital, dentist, registered or licensed practical nurse, pharmacist, optometrist, podiatrist, chiropractor, physical therapist, occupational therapist, psychologist, graduate social worker or licensed clinical social worker, psychiatrist, or licensed professional counselor, and any officer, employee, or agent thereby acting in the course and scope of his employment.
(7) “Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter.
(8)(a) “Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.
(b) Mental injury caused by mental stress. Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.
(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee’s body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
(d) No mental injury or illness shall be compensable under either Subparagraph (b) or (c) unless the mental injury or illness is diagnosed by a licensed psychiatrist or psychologist and the diagnosis of the condition meets the criteria as established in the most current issue of the Diagnostic and Statistical Manual of Mental Disorders presented by the American Psychiatric Association.
(e) Heart-related or perivascular injuries. A heart-related or perivascular injury, illness, or death shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence that:
(i) The physical work stress was extraordinary and unusual in comparison to the stress or exertion experienced by the average employee in that occupation, and
(ii) The physical work stress or exertion, and not some other source of stress or preexisting condition, was the predominant and major cause of the heart-related or perivascular injury, illness, or death.
(9) “Office” means the office of workers compensation administration established pursuant to R.S. 23:1291.
(10) “Owner operator” means a person who provides trucking transportation services under written contract to a common carrier, contract carrier, or exempt haulers which transportation services include the lease of equipment or a driver to the common carrier, contract carrier, or exempt hauler. An owner operator, and the drivers provided by an owner operator, are not employees of any such common carrier or exempt hauler for the purposes of this Chapter if the owner operator has entered into a written agreement with the carrier or hauler that evidences a relationship in which the owner operator identifies itself as an independent contractor. For purposes of this Chapter, owner operator does not include an individual driver who purchases his equipment from the carrier or hauler, and then directly leases the equipment back to the carrier or hauler with the purchasing driver.
(11) “Part-time employee” means an employee who as a condition of his hiring knowingly accepts employment that (a) customarily provides for less than forty hours per work week, and (b) that is classified by the employer as a part-time position.
(12) “Payor” means the entity responsible, whether by law or contract, for the payment of benefits incurred by a claimant as a result of a work related injury.
(13) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows:
(a) Hourly wages.
(i) If the employee is paid on an hourly basis and the employee is employed for forty hours or more, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the accident or forty hours, whichever is greater; or
(ii) If the employee is paid on an hourly basis and the employee was offered employment for forty hours or more but regularly, and at his own discretion, works less than forty hours per week for whatever reason, then, the average of his total earnings per week for the four full weeks preceding the date of the accident; or
(iii) If the employee is paid on an hourly basis and the employee is a part-time employee, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury.
(iv) A part-time employee, as defined in R.S. 23:1021(9) and who is employed by two or more different employers in two or more successive employments, shall be entitled to receive benefits as follows:
(aa) If an employee is employed by two or more different employers in two or more successive employments and the employee incurs a compensable injury under the provisions of this Chapter in one of the employments, the employer in whose service the employee was injured shall pay the benefits due the employee as provided in this Chapter.
(bb) If the employee is a part-time employee in one of the successive employments, is injured in that employment, but as a result of the injury also incurs loss of income from other successive employments, that employee shall be entitled to benefits computed by determining wages under the provisions of this Subsection using his hourly rate in employment at the time of injury and using the total hours worked for all employers of the part-time employee, but not to exceed his average, actual weekly hours worked or forty hours weekly, whichever is less.
(v) For an employee in seasonal employment, his annual income divided by fifty-two.
(aa) For purposes of this Subparagraph, seasonal employment shall be any employment customarily operating only during regularly recurring periods of less than forty-four weeks annually.
(bb) If the employee was not engaged in the seasonal employment more than one year prior to the accident, his annual income shall be the average annual income of other employees of the same or most similar class working in the same or most similar employment for the same employer or, in the event that the employee was the only individual engaged in that specific employment, then his annual income shall be the average annual income of other employees of the same or most similar class working for a neighboring employer engaged in the same or similar employment.
(b) Monthly wages. If the employee is paid on a monthly basis, his monthly salary multiplied by twelve then divided by fifty-two.
(c) Annual wages. If the employee is employed at an annual salary, his annual salary divided by fifty-two.
(d) Other wages. If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by the average number of days worked per week; however, if such an employee has worked for the employer for less than a twenty-six week period immediately preceding the accident, his gross earnings from the employer for the period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said period and multiplied by the average number of days worked per week.
(e) Exceptions. For municipal police officers, additional compensation paid by the state pursuant to R.S. 40:1667.3 shall not be included in the calculation and computation of total salary or average weekly wage to the extent such officer continues to receive such additional compensation during the period of his disability.
(f) Income tax. In the determination of “wages” and the average weekly wage at the time of the accident, no amount shall be included for any benefit or form of compensation which is not taxable to an employee for federal income tax purposes; however, any amount withheld by the employer to fund any nontaxable or tax-deferred benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage including but not limited to any amount withheld by the employer to fund any health insurance benefit provided by the employer and which was elected by the employee in lieu of taxable earnings shall be included in the calculation of the employee’s wage and average weekly wage.
(g) Date of accident. In occupational disease claims the date of the accident for purposes of determining the employee’s average weekly wage shall be the date of the employee’s last employment with the employer from whom benefits are claimed or the date of his last injurious exposure to conditions in his employment, whichever date occurs later.
Amended by Acts 1968, Ex. Sess., No. 25, §1; Acts 1975, No. 583, §1, eff. Sept. 1, 1975; Acts 1983, 1st Ex. Sess., No. 1, §§1, 6; eff. July 1, 1983; Acts 1987, No. 396, §1; Acts 1987, No. 494, §1; Acts 1988, No. 938, §1, eff. Jan. 1, 1989, and July 1, 1989; Acts 1989, No. 260, §1, eff. Jan. 1, 1990; Acts 1989, No. 454, §1, eff. Jan. 1, 1990; Acts 1991, No. 468, §1; Acts 1991, No. 565, §1; Acts 1993, No. 928, §2, eff. June 25, 1993; Acts 1995, No. 1137, §1, eff. June 29, 1995; Acts 1997, No. 423, §1; Acts 1997, No. 536, §1; Acts 1997, No. 1172, §4, eff. June 30, 1997; Acts 1999, No. 751, §1; Acts 1999, No. 1309, §5, eff. Jan. 1, 2000; Acts 2001, No. 288, §2; Acts 2001, No. 486, §2, eff. June 21, 2001; Acts 2001, No. 546, §1; Acts 2001, No. 1014, §§1 and 2, eff. June 27, 2001; Acts 2004, No. 26, §10; Acts 2004, No. 188, §1, eff. June 10, 2004; Acts 2004, No. 561, §1; Acts 2013, No. 337, §1; Acts 2014, No. 158, §§3 and 7.