Court Relaxes “Severe Pain” Requirement to Establish Hernia Claim

Third Quarter 2014 Legal Briefs

City of Tucson v. Industrial Commission, Court of Appeals, Division II, Published Opinion, Filed 9/30/2014

In this case, the court of appeals judicially expanded the meaning of “severe pain” for purposes of establishing a compensable work-related hernia.

Arizona Revised Statutes, Section 23-1043(2) sets forth four requirements for a claim to be compensable: (a) the immediate cause was a severe strain or blow; (b) the hernia immediately descended following the cause; (c) the cause was accompanied by severe pain; and, (d) the claimant noticed the hernia and immediately communicated as much to one or more persons.  In this case, the administrative law judge (ALJ) awarded benefits to a claimant who testified that he had not experienced any pain related to the hernia. There was medical testimony that some people simply do not feel pain with a hernia, and the claimant had testified that he also had felt no pain with a hernia experienced many years earlier. Thus, even thought the claimant did not meet all four required elements of the statute, the ALJ used a liberal construction to find the claim compensable.

The appellate court affirmed the ALJ’s decision. The court noted that the medical testimony described a subset of employees who do not feel pain during a non-traumatic hernia, and commented that pain is a subjective experience that varies by individual. Therefore, the court held that a non-traumatic hernia injury is compensable when the preponderance of the evidence establishes a relationship between the work incident and injury, and competent evidence substantiates the claimant’s inability to feel pain with non-traumatic hernia. Construing the statute in a way that excludes such a worker from the workers compensation regime based on physiological makeup would lead to absurd results and is incongruent with the purpose of the workers compensation statute. Although this appears to be a fair and sensible outcome, the court nevertheless expanded the meaning and application of the statute far beyond its original intent. This could result in an increase in compensable hernia claims.

See the next two posts for the rest of third quarter workers compensation legal briefs.

Leave a Reply

Your email address will not be published. Required fields are marked *