Missouri: Commission Opens Door For 'Occupational' Hernia

The Commission announces in a recent case that hernias can now arise from occupational trauma.

This may be a big surprise to a lot of practitioners as §287.195 (Lexis Advance), §287.195 (lexis.com) defines a compensable hernia as an accident or unusual strain resulting in hernia; and that the hernia did not exist prior to the accident or unusual strain resulting in the injury for which compensation is claimed." The Commission finds although the Act  defines hernia as an accident it doesn’t mean it’s just an accident.  Sadic v Semco, 2014 Mo WCLR Lexis 138 (Lexis Advance), 2014 Mo WCLR Lexis 138 (lexis.com). (December 5, 2014).

Sadic was a machine operator who alleges he sustained a hernia in 2010 from accident or occupational disease.  He had worked for the employer for 8 years.  He recalls two instances in 2009 and 2010 when he exerted himself at work and felt groin pain.  He had a left inguinal hernia repair in 2010.  An expert for the employer indicated that exertion can enlarge the size of a hernia but a person had a hernia or the worker did not and couldn't relate anything to a 2010 accident given the history of trauma and similar symptoms in 2009. 

The ALJ found no statutory basis for a hernia from an occupational disease. The former commission appeared to reach the same conclusion about 3 years ago.  Baldwin v Harley Davidson Company, 2011 MO WCRL Lexis 32 (Lexis Advance), 2011 MO WCRL Lexis 32 (lexis.com).

"We believe employee probably sustained a hernia as a result of an accidental injury at work at some uncertain time in late 2009" noted the Commission in Sadic.  As  §287.020 (Lexis Advance), §287.020 (lexis.com) allows occupational disease, the section also includes hernias because hernias are not specifically excluded.  Sadic failed to provide sufficient facts about his job to show his condition flowed from his occupation.

This interpretation is a new idea under post-reform strict construction.  Pattengill v General Motors Corp.,  845 S.W.2d 630 (Lexis Advance), 845 S.W.2d 630 (lexis.com) (Mo. App. 1992) is pre-reform liberal construction case that found  §287.195’s ban of compensation for hernias that “pre-existed” did not apply unless the pre-existing hernia was symptomatic. Pattengill found a hernia from an accident.  The court further observed that the hernia likely arose from many years of employment.  “Whatever pre-existing weakness Claimant had in his groin came about during his 19-year employment by Employer.” (emphasis added).  Missouri once considered the cause of hernias so obvious that it did not require even an expert opinion.  Nick v International Shoe, 1947 Mo App. Lexis 418 (Lexis Advance), 1947 Mo. App. Lexis 418 (lexis.com)( unpublished decision).  Missouri  now requires expert testimony to show causation.  Pemberton v 3M Company, 992 S.W.2d 365 (Lexis Advance), 992 S.W.2d 365 (lexis.com) (Mo. App. 1999).

Sadic failed to prove his case of an occupational hernia.  The Commission is clearly signaling that it regards hernias like repetitive back strains and an employer shouldn’t get too excited just because a worker who has had a hernia just can’t remember an accident.  The case has a huge potential impact for employers in the medical sector.

Recent medical research suggests that most “work-related” hernias in reality have nothing to do with work.  Proper lifting causes less intra-abdominal pressure than a routine cough.    Work related aspects of inguinal hernia: a literature review, Surgeon 2008; 361-5;  Epigrastric and Umbilical Hernia; Work Relatedness and Return to Work; Iran Journal of Public Health, 2013: 42(3) 334-337.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug’s Mo. Workers’ Comp Alerts.

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