2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 7 - Compensation Schedules
§ 34-9-266. Payment of Compensation for Time Loss, Disability, or Death Resulting From Hernia

In all claims for compensation for hernia resulting from injury by accident arising out of and in the course of the employee's employment it must be definitely proved to the satisfaction of the board (1) that there was an injury resulting in hernia, (2) the hernia appeared suddenly, (3) the hernia was accompanied by pain, (4) the hernia immediately followed an accident, and (5) the hernia did not exist prior to the accident for which compensation is claimed. All inguinal, femoral, or other hernias which are proven to be the result of an injury by accident arising out of and in the course of employment shall be treated in a surgical manner by radical operation. If death results from such operation, the death shall be considered as a result of the injury and compensation shall be paid in accordance with Code Section 34-9-265. In nonfatal cases, time loss only shall be paid unless it is shown by special examination, as provided in Code Section 34-9-202, that the injured employee has a permanent partial disability resulting from the operation. If so, compensation shall be paid in accordance with Code Section 34-9-263. In the event the injured employee refuses to undergo the radical operation for the cure of the hernia, no compensation shall be allowed during the time such refusal continues. If, however, it is shown that the employee has some chronic disease or is otherwise in such physical condition that the board considers it unsafe for the employee to undergo such operation, the employee shall be paid as provided in Code Section 34-9-262.

(Ga. L. 1920, p. 167, § 2; Code 1933, § 114-412; Ga. L. 1975, p. 198, § 4; Ga. L. 1982, p. 3, § 34; Ga. L. 1998, p. 1508, § 9.)

- For review of 1998 legislation relating to labor and industrial relations, see 15 Ga. St. U.L. Rev. 185 (1998). For survey article on workers' compensation law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For annual survey of law of workers' compensation, see 56 Mercer L. Rev. 479 (2004).

ANALYSIS

• General Consideration
• Scope and Effect of Provisions
• Injury by Employment Accident
• Surgical Operation

Cited in Sullivan v. Social Circle Cotton Mills, 41 Ga. App. 714, 154 S.E. 467 (1930); Paschal v. Foremost Dairies, 56 Ga. App. 397, 192 S.E. 634 (1937); Perrien v. Southern Coop. Foundry Co., 60 Ga. App. 195, 3 S.E.2d 240 (1939); Royal Indem. Co. v. Beckmann, 66 Ga. App. 369, 17 S.E.2d 910 (1941); Hartford Accident & Indem. Co. v. Hillhouse, 73 Ga. App. 122, 35 S.E.2d 603 (1945); American Mut. Liab. Ins. Co. v. Gunter, 74 Ga. App. 534, 40 S.E.2d 394 (1946); United States Cas. Co. v. Richardson, 75 Ga. App. 496, 43 S.E.2d 793 (1947); American Cas. Co. v. Herron, 102 Ga. App. 658, 117 S.E.2d 172 (1960); Jones v. Utica Mut. Ins. Co., 144 Ga. App. 460, 241 S.E.2d 578 (1978).

Scope and Effect of Provisions

Section deals exclusively with principle of law regarding compensation for hernia or for death therefrom.

- Unless the evidence shows that the claimant is entitled to compensation for total or partial disability under some other principle of law under the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), the claimant is not entitled to prevail. Boswell v. Liberty Mut. Ins. Co., 77 Ga. App. 556, 49 S.E.2d 117 (1948).

Provisions of this section were mandatory. Fidelity & Cas. Co. v. Whitehead, 117 Ga. App. 200, 160 S.E.2d 241 (1968).

- Workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) excludes disease in any form, except as otherwise provided, unless the disease results naturally and unavoidably from the accident. Johnston v. Boston-Old Colony Ins. Co., 106 Ga. App. 410, 126 S.E.2d 919 (1962).

- If the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) does not apply to an "occupational disease" caused by injuries which are not the result of an accident and are not compensable under these provisions, the employee may maintain an ordinary or common-law action for damages against an employer, provided a cause of action exists in the employee's favor under the law relating to the liability of a master, independently of the workers' compensation law. Covington v. Berkeley Granite Corp., 182 Ga. 235, 184 S.E. 871, answer conformed to, 53 Ga. App. 269, 185 S.E. 386 (1936), aff'd, 183 Ga. 801, 190 S.E. 8 (1937).

Injury by Employment Accident

1. Required Elements

In hernia cases it is necessary for the claimant to definitely prove to the board's satisfaction that: (1) there was an injury resulting in a hernia; (2) the hernia appeared suddenly; (3) it was accompanied by pain; (4) the hernia immediately followed an accident; (5) the hernia did not exist prior to the accident for which compensation is claimed. Williams v. United States Fid. & Guar. Co., 90 Ga. App. 409, 83 S.E.2d 225 (1954).

In order to be entitled to compensation for a hernia, the employee must prove that the hernia resulted from an accident arising out of and in the course of employment, that the resulting hernia did not exist prior to the accident, that it was accompanied by pain, that it appeared suddenly, and that it immediately followed the accident. American Mut. Liab. Ins. Co. v. Dyer, 94 Ga. App. 619, 95 S.E.2d 725 (1956).

- The five requirements of this section were designed as the means to establish clearly and definitely by proof that there was a direct continuity of causal connection between an accidental injury and a hernia; no particular words should be so narrowly construed and applied as to defeat this purpose. Blackshear v. Liberty Mut. Ins. Co., 69 Ga. App. 790, 26 S.E.2d 793 (1943), rev'd on other grounds, 197 Ga. 334, 28 S.E.2d 860 (1944).

2. Accidental Injury

Section excludes injuries not caused by accident.

- This section seemed to recognize that a hernia may occur without an accident or injury in providing for "compensation for hernia resulting from injury by accident," and thereby excluding congenital hernias and hernias acquired without injury or accident. American Life Ins. Co. v. Stone, 78 Ga. App. 98, 50 S.E.2d 231 (1948).

- There is no express statement that the word "accident," as used in this section, or the phrase "injury by accident" shall be construed differently in hernia cases from their meaning in other portions of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.). Hardware Mut. Cas. Co. v. Sprayberry, 195 Ga. 393, 24 S.E.2d 315, answer conformed to, 69 Ga. App. 196, 25 S.E.2d 74 (1943).

"Injury by accident" had the same meaning as the expression used in former Code 1933, §§ 114-101 and 114-102 (see now O.C.G.A. § 34-9-1). Hardware Mut. Cas. Co. v. Sprayberry, 69 Ga. App. 196, 25 S.E.2d 74 (1943).

- Act done by an employee in the ordinary performance of the duties for which the employee is employed, when done in a manner not unusual or unexpected, but in a manner ordinarily required and expected of the employee in the performance of the employee's duties, does not constitute an "injury by accident;" a hernia resulting to the employee from the performance of such an act does not result from an injury by accident. Westbrook v. Highview, Inc., 42 Ga. App. 834, 157 S.E. 362 (1931). But see Hardware Mut. Cas. Co. v. Sprayberry, 195 Ga. 393, 24 S.E.2d 315, answer conformed to, 69 Ga. App. 196, 25 S.E.2d 74 (1943).

- Sudden and violent rupture or break in the physical structure of the body of an employee, caused by some strain or exertion in the employment of the master, is an "accidental injury" within the meaning of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), even though no external unforeseen event, such as slipping, falling, or being struck contributes thereto. Brown v. Lumbermen's Mut. Cas. Co., 49 Ga. App. 99, 174 S.E. 359 (1934).

Hernia sustained as a result of a strain by an employee while performing the employee's work is an "accident," or an "accidental injury" within the meaning of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), although there was no unexpected, unusual, or fortuitous happening, other than the injury. Hardware Mut. Cas. Co. v. Sprayberry, 195 Ga. 393, 24 S.E.2d 315, answer conformed to, 69 Ga. App. 196, 25 S.E.2d 74 (1943).

3. Causation

Compensable hernia occurs when close coincidence between injury and hernia, and no intervening agency.

- Compensable hernia, under this section, was one when there is a relative and reasonably close coincidence between the accidental injury and the hernia, and it was clear that no other agency intervened as to time, place, or action, to cause the hernia, save the accidental injury growing out of and in the course of the employment. Blackshear v. Liberty Mut. Ins. Co., 69 Ga. App. 790, 26 S.E.2d 793 (1943), rev'd on other grounds, 197 Ga. 334, 28 S.E.2d 860 (1944).

- When, in a compensation proceeding, the hearing director (now the administrative law judge) showed conclusively that the director applied strict rules covering compensation for hernia cases whereas the deceased died of coronary occlusion, but did not show the relationship between the accident and the operation on the one hand, and the operation and coronary occlusion on the other hand, the hearing director made a mistake in considering the facts, and it is within the jurisdiction of an appellate court to remand the case to the state board for further consideration. Parks v. American Fid. & Cas. Co., 97 Ga. App. 833, 104 S.E.2d 624 (1958).

Hernia must "immediately" follow an accident to be compensable. Westbrook v. Highview, Inc., 42 Ga. App. 834, 157 S.E. 362 (1931).

- Requirements of this section did not, properly construed, mean that it must be shown that the hernia "instantaneously" appeared and "instantaneously" followed the accident, but it was the intention of the legislature, in using such terms, to prescribe, as between a cause and its effect, an interval of time which, though short, would be sufficient in duration for the effect to follow the putative cause in the usual course of nature and reasonably preclude the intervention of another agency or force. Hardware Mut. Cas. Co. v. Sprayberry, 69 Ga. App. 196, 25 S.E.2d 74 (1943).

Under the provisions of this section, the words ". . . appeared suddenly . . ." and ". . . immediately following . . .," were not to be construed as synonymous with the term "instantaneous," but should be given that construction and application which will effectuate the general intent and purpose of that section. Blackshear v. Liberty Mut. Ins. Co., 69 Ga. App. 790, 26 S.E.2d 793 (1943), rev'd on other grounds, 197 Ga. 334, 28 S.E.2d 860 (1944).

Word "immediately" means only that there must not have been any substantial interval between the accident and the manifestation of the rupture and the appearance of the hernia following in due, natural, and uninterrupted course therefrom. Liberty Mut. Ins. Co. v. Blackshear, 197 Ga. 334, 28 S.E.2d 860 (1944).

- When it certainly could be said in a compensation case that the hernia "appeared" and "followed the injury" within not more than an hour, the director (now administrative law judge) was authorized to find that, within the contemplation of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), it appeared "suddenly" and "immediately followed" the accident, no such interval of time elapsing between the accident and the appearance of the hernia as would suggest that the hernia was produced by a blow or such cause as would place it in the category of a disease. Hardware Mut. Cas. Co. v. Sprayberry, 69 Ga. App. 196, 25 S.E.2d 74 (1943).

- In an indirect hernia caused by an accident accompanied by violence, the blow is the initial cause; the inception of the hernia and the external protrusion is the fruition. Blackshear v. Liberty Mut. Ins. Co., 69 Ga. App. 790, 26 S.E.2d 793 (1943), rev'd on other grounds, 197 Ga. 334, 28 S.E.2d 860 (1944).

- External protrusion is but evidence of the more developed hernia, but is not conclusive evidence of the cause or the time it began; the only conclusive thing the protrusion proves is that it is then existent by visible evidence, not that it then, and then only, occurred along with the protrusion itself. Blackshear v. Liberty Mut. Ins. Co., 69 Ga. App. 790, 26 S.E.2d 793 (1943), rev'd on other grounds, 197 Ga. 334, 28 S.E.2d 860 (1944).

- Term "hernia," as used in this section, meant the protrusion of an internal organ or part projecting through an opening in the walls of the abdominal cavity. The rupture of the tissues of the abdominal walls arising out of an injury in the course of the employment constitutes the actual accidental injury, and the hernia is merely a natural resultant therefrom; the sudden appearance of the rupture, as manifested by accompanying evidences of pain, immediately and without a substantial interval following the accident, constitutes an integral part of the resulting "hernia," within the meaning of that section. Liberty Mut. Ins. Co. v. Blackshear, 197 Ga. 334, 28 S.E.2d 860 (1944).

- When it appeared that an employee in a rock quarry, in the course of employment, was engaged with the use of a heavy crowbar in prying loose a rock which was wedged, and in so doing voluntarily twisted the crowbar and "went with it," but did not slip or fall, and immediately felt a sudden pain in the employee's groin and a hernia suddenly appeared, the award of compensation to the employee under this section was proper. American Mut. Liab. Ins. Co. v. McCarty, 45 Ga. App. 483, 165 S.E. 291 (1932).

- Hernia which was the result of an exercise program the employee undertook as part of the employee's treatment for the work-related back injury did not meet the requirements of O.C.G.A. § 34-9-266 because it neither resulted from nor immediately followed the accident, and could not be considered a "superadded injury." Standridge v. Candlewick Yarns, 202 Ga. App. 553, 415 S.E.2d 10, cert. denied, 202 Ga. App. 907, 415 S.E.2d 10 (1992).

5. Prior Existence

Necessary to prove that hernia not in existence prior to accident.

- Under this section, not only must the hernia have resulted from an injury by accident arising out of and in the course of the employee's employment, but it must be definitely proved to the satisfaction of the board that the resulting hernia did not exist prior to the accident, was accompanied by pain, and appeared suddenly and immediately followed the accident. Liberty Mut. Ins. Co. v. Blackshear, 197 Ga. 334, 28 S.E.2d 860 (1944).

Rule as to a hernia is somewhat different from that applying to other injuries, in that not only must the hernia have resulted from an injury by accident arising out of and in the course of the employee's employment, but it must be definitely proved to the satisfaction of the board that the resulting hernia did not exist prior to the accident, was accompanied by pain, appeared suddenly, and immediately followed the accident. Williams v. United States Fid. & Guar. Co., 90 Ga. App. 409, 83 S.E.2d 225 (1954).

- While, under this section, there may not be a recovery of compensation for disability due to a preexisting hernia, there may be a recovery of compensation due to an aggravation of a preexisting hernia. Manufacturers Cas. Ins. Co. v. Peacock, 97 Ga. App. 26, 101 S.E.2d 898 (1958). But see Boswell v. Liberty Mut. Ins. Co., 77 Ga. App. 556, 49 S.E.2d 117 (1948).

- Denial, because the hernia was found to be preexisting, of medical and hospital expenses incurred by reason of a hernia under this section did not preclude the recovery of compensation for the period of total incapacity of work which was the result of an aggravation of a preexisting hernia by an accident arising out of and in the course of the employee's employment. Boswell v. Liberty Mut. Ins. Co., 77 Ga. App. 556, 49 S.E.2d 117 (1948).

- When, upon the hearing of a claim for compensation for death resulting from an operation for a hernia, brought under this section, the evidence authorized a finding that the deceased employee had been previously afflicted with the hernia for a number of years, as evidenced by a protrusion in the employee's groin, and that, while the employee was performing the usual duties of employment, and without any accident, the old hernia slipped down through the right inguinal ring and became strangulated, necessitating an immediate operation, the denial of compensation was properly affirmed. Littlejohn v. Piedmont Hotel, 62 Ga. App. 695, 9 S.E.2d 688 (1940).

- When, as in this case, the claim is for a complete strangulated hernia, proof merely that, prior to the accident from which the complete hernia arose, the claimant showed a possible sign of a partial hernia a few inches from the place of the complete hernia, but not attended by partial or reduced capacity for work, does not even authorize, much less demand, a finding that the hernia alleged to have resulted from the accident in question previously existed. London Guarantee & Accident Co. v. Shockley, 31 Ga. App. 762, 122 S.E. 99 (1924).

- O.C.G.A. § 34-9-266 created an exception to O.C.G.A. § 34-9-1(4), which allowed employees to obtain medical benefits when they had a pre-existing condition that was aggravated by a work-related injury, and the trial court erred by ordering the Georgia board of workers' compensation, appellate division, to award medical benefits to an employee who obtained treatment for hernias the employee developed before beginning work for the employer, after the employee aggravated the medical condition in a work-related accident. Union City Auto Parts v. Edwards, 263 Ga. App. 799, 589 S.E.2d 351 (2003).

Surgical Operation

Proof that surgical repair tendered and refused question of fact.

- It is not cause for a reversal of the award that the board never specifically ordered the claimant to undergo surgical repair, but proof that it was tendered, and if so, refused, remains a question of fact. Fidelity & Cas. Co. v. Whitehead, 117 Ga. App. 200, 160 S.E.2d 241 (1968).

- When an employee refused to undergo surgery for cure of the hernia, if and when a correction should finally be accepted, compensation would resume from the date of acceptance, and after the correction a determination could be made as to whether it resulted in a removal of all disability resulting from the hernia. If not, an employee would be entitled to further compensation as provided in this section. Fidelity & Cas. Co. v. Whitehead, 114 Ga. App. 630, 152 S.E.2d 706 (1966).

- Provisions of this section which require that all hernia, inguinal, femoral or otherwise, so proven to be the result of an injury by accident arising out of and in the course of employment, shall be treated in a surgical manner by radical operation must be taken as subject to the former provisions which limited the liability of the employer for any such treatment to a period of 30 days following the accident and the sum of $100.00. Southern Sur. Co. v. Byck, 39 Ga. App. 699, 148 S.E. 294 (1929).

- When the surgical award was not the basis of appeal, the injured employee was not required to await an operation pending a final adjudication on the appeal of the merits of the employee's weekly compensation claim; to decide otherwise would in effect place the plaintiff in the unfortunate dilemma of refusing the operation and losing compensation, or accepting the operation and giving up the right to appeal for more adequate and just compensation in the event of the failure of the operation to effect a complete cure. St. Paul Fire & Marine Ins. Co. v. Horton, 103 Ga. App. 171, 118 S.E.2d 597 (1961).

RESEARCH REFERENCES

ALR.

- Workmen's compensation: injury or death to which preexisting physical condition of employee causes or contributes, 19 A.L.R. 95; 28 A.L.R. 204; 60 A.L.R. 1299.

Survival of right to compensation under Workmen's Compensation Acts upon the death of the person entitled to the award, 24 A.L.R. 441; 29 A.L.R. 1426; 51 A.L.R. 1446; 87 A.L.R. 864; 95 A.L.R. 254.

Workmen's compensation: aggravation by particular condition or equipment of plant of injury which in its inception was not connected with the employment, 37 A.L.R. 771.

Hernia as result of sudden strain as accident or accidental injury within Workmen's Compensation Act, 98 A.L.R. 205.

Construction and application of specific provisions of Workmen's Compensation Act relating to hernia, 114 A.L.R. 1337.

ARTICLE 8 COMPENSATION FOR OCCUPATIONAL DISEASE

PART 1 GENERAL PROVISIONS