What is a Hernia Presumption? What You Need to Know

What is a Hernia?

Organs are held in place by either muscles or tissues. When an organ pushes through the muscle or tissue which is holding it in place, a Hernia has occurred. For example, the intestines may break through a weakened area in the abdominal wall. Hernias can occur in the abdomen, upper thigh, belly button or groin. Most Hernias don’t go away on their own and they require treatment. Hernias can become serious and life threatening. Surgery may be required.

Are there different kinds of Hernias?

Yes. There are a variety of hernias: inguinal, hiatal, umbilical and incisional.

Inguinal Hernias

Generally located near the inguinal canal. They are located in the groin. They are different for men and women. They can occur when the intestines push through a weak spot or tear in the lower abdominal wall. These are some of the most common of hernias.

Hiatal Hernias

located near the chest cavity. They are Hiatal Hernias when part of the stomach protrudes up through the diaphragm into the check cavity. Hiatal hernias can cause gastroesophageal reflux or GERD.

Umbilical Hernias

Located near the bellybutton. They occur when the intestines bulge through the abdominal wall.

Incisional Hernias

These can occur after an abdominal surgery. The intestines can push through the incision scar or the surrounding weakened tissue.

What causes a Hernia?

Hernias can be caused by a combination of muscle weakness and strain. They can occur quickly or develop over a long period of time. Common causes of muscle weakness include congenital defect, age, chronic coughing, or damage from a surgery or injury. Causes of physical strain which can was muscle weakness include pregnancy, constipation, lifting heavy weight, fluid in the abdomen, sudden weight gain, surgery in the area and persistent coughing or sneezing.

What is the Hernia Presumption?

Labor Code Section 3212 provides:

“[i]n the case of members of a sheriff’s office or the California Highway Patrol, district attorney’s staff of inspectors and investigators or of police or fire departments of cities, counties, cities and counties, districts or other public or municipal corporations or political subdivisions, whether those members are volunteer, partly paid, or fully paid, and in the case of active firefighting members of the Department of Forestry and Fire Protection whose duties require firefighting or of any county forestry or firefighting department or unit, whether voluntary, fully paid, or partly paid, and in the case of members of the warden service of the Wildlife Protection Branch of the Department of Fish and Game whose principal duties consist of active law enforcement service, excepting those whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement service such as stenographers, telephone operators, and other officeworkers, the term “injury” as used in this act includes hernia when any part of the hernia develops or manifests itself during a period while the member is in the service in the office, staff, division, department, or unit, and in the case of members of fire departments, except those whose principal duties are clerical, such as stenographers, telephone operators, and other officeworkers, and in the case of county forestry or firefighting departments, except those whose principal duties are clerical, such as stenographers, telephone operators, and other office workers, and in the case of active firefighting members of the Department of Forestry and Fire Protection whose duties require firefighting, and in the case of members of the warden service of the Wildlife Protection Branch of the Department of Fish and Game whose principal duties consist of active law enforcement service, excepting those whose principal duties are clerical or otherwise do not clearly fall within the scope of active law enforcement service such as stenographers, telephone operators, and other office workers, the term “injury” includes pneumonia and heart trouble that develops or manifests itself during a period while the member is in the service of the office, staff, department, or unit. In the case of regular salaried county or city and county peace officers, the term “injury” also includes any hernia that manifests itself or develops during a period while the officer is in the service. The compensation that is awarded for the hernia, heart trouble, or pneumonia shall include full hospital, surgical, medical treatment, disability indemnity, and death benefits, as provided by the workers’ compensation laws of this state.

The hernia, heart trouble, or pneumonia so developing or manifesting itself in those cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it. The presumption shall be extended to a member following termination of service for a period of three calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.

The hernia, heart trouble, or pneumonia so developing or manifesting itself in those cases shall in no case be attributed to any disease existing prior to that development or manifestation.”

How does the Hernia Presumption apply?

The presumption creates an evidentiary advantage that is afforded to those individuals for whom it applies. The presumption applies when the hernia develops or manifests during employment. Also, it can be extended out to up to 60 months from the last date of employment based upon years of service. The presumption means that the hernia will be considered work-related if it is not rebutted by the claims administrator. If it is considered as work related, then workers’ compensation benefits will be provided and the medical treatment will be paid for by the claims administrator.

Does it Apply to all types of Hernia?

Yes. In County of Kern vs. WCAB (1998) (writ denied), the presumption was found to apply to a Hiatal Hernia. The WCJ indicated that the Labor Code presumption applied to all Hernias. The WCJ stated that “hernia” was a general term that means a “protrusion of tissue or an organ through an abnormal opening in the body cavity that normally contains it.”

Who does the Hernia Presumption apply to?

Labor Code Section 3212 provides that the presumption applies only to certain positions. It is recommended that if you are uncertain as to whether the presumption applies, you should contact your department or an attorney to confirm.

Can the Presumption be rebutted?

Yes. The presumption can be rebutted. The claims administrator will attempt to prove that the hernia pre-dated the injured workers start of employment in that position. In a case in which the hernia pre-existed the employment, the hernia presumption was rebutted. Garin vs. W.C.A.B. (1993) (writ denied).

If the Presumption is rebutted, should I still pursue the case?

Yes. An aggravation or acceleration of a pre-existing medical condition is still an industrial injury. Essentially, the rebutting of the presumption may allow the claims administrator to claim apportionment to pre-existing conditions.   You still would be able to claim all of the benefits. The only difference would be a reduction in the PD benefits.

If you would like a “free” consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 23 years. Contact us today for more information.