A worker, in order to be entitled to compensation for a hernia, must clearly prove:

A. that the hernia is of recent origin;

B. that its appearance was accompanied by pain;

C. that it was immediately preceded by some accidental strain suffered in the course of the employment; and

D. that it did not exist prior to the date of the alleged injury. If a worker, after establishing his right to compensation for a hernia as above provided, elects to be operated upon, the operating fee and reasonable hospital expenses shall be paid by the employer or his or its insurer. In case such worker elects not to be operated upon and the hernia becomes strangulated in the future, the results from the strangulation shall not be compensated; provided, before the worker is compelled to prove the facts above mentioned, in order to be entitled to compensation for hernia, the employer must first prove that he caused the worker to be physically examined, previous to his employment, for the existence of a hernia; and, provided further, that where the employer has not made provisions for and does not have at the service of the worker adequate surgical, hospital and medical facilities and attention or fails to offer them during the period necessary, the worker shall have the right to select the surgeon to operate upon him and the hospital where the operation is to be performed and the worker is to be treated therefor.

History: 1953 Comp., § 59-10-18.6, enacted by Laws 1959, ch. 67, § 24; 1963, ch. 269, § 4; 1989, ch. 263, § 27.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

"Occurrence" refers to. — When the act speaks of the occurrence of injury or the occurrence of the hernia, it refers to compensable injuries and these occur when disability appears - in other words, when the injury or hernia becomes manifest. Montell v. Orndorff, 1960-NMSC-063, 67 N.M. 156, 353 P.2d 680.

If employer does not show that he caused workman (worker) to be physically examined prior to employment to determine the possible existence of a hernia, the employee is relieved from proving certain facts specified in the section. There, then, remains only the normal burden of proof to be met by plaintiffs in all workmen's (workers') compensation cases set out in Section 52-1-28 NMSA 1978. Michael v. Bauman, 1966-NMSC-079, 76 N.M. 225, 413 P.2d 888.

To be compensable hernia there must be a protrusion and mere proof of an enlarged ring or potential hernia is not proof that employee sustained a compensable hernia. Flournoy v. E.P. Campbell Drilling Co., 1964-NMSC-141, 74 N.M. 336, 393 P.2d 449.

Actual knowledge of potential hernia not knowledge of compensable hernia. — An employer's actual knowledge of the enlarged ring or relaxation, a potential hernia, did not constitute actual knowledge of a compensable left hernia after it occurred. Flournoy v. E.P. Campbell Drilling Co., 1964-NMSC-141, 74 N.M. 336, 393 P.2d 449.

Conclusive bar to compensation. — The failure to give notice within the allotted time is a conclusive bar to any suit for compensation where plaintiff was timely advised by the treating physician that he had suffered a left direct inguinal hernia. Michael v. Bauman, 1966-NMSC-079, 76 N.M. 225, 413 P.2d 888.

Time for notice or claim does not begin to run until the claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury or disease. Montell v. Orndorff, 1960-NMSC-063, 67 N.M. 156, 353 P.2d 680.

No proof that hernia sustained while working for employer. — Testimony that plaintiff had a slight enlargement of his right inguinal ring which is referred to as a potential hernia, by no means a condition which disabled him from performing any kind of work whatever, and it was only a long period of time after he had severed his employment with this defendant, and had worked at hard labor for another employer, that a doctor testified that he was suffering from a direct inguinal hernia does not constitute proof that his hernia was sustained while he was employed by his previous employer. Flournoy v. E.P. Campbell Drilling Co., 1964-NMSC-141, 74 N.M. 336, 393 P.2d 449.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 82 Am. Jur. 2d Workers's Compensation § 443.

99 C.J.S. Workmen's Compensation § 306.