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 59-10-18.6, enacted by Laws 1959, ch. 67, § 24; 1963, ch. 269, § 4; 1989, ch. 263, § 27.
Notes to Decisions
Generally.
In workmen’s compensation proceedings, employee failed to sustain his burden of proof under former 59-10-13.3, 1953 Comp. (now 52-1-28 NMSA 1978) that his hernia resulted from a work-related accident; where the employer did not cause him to be physically examined, the burden of proof under former 59-10-18.6, 1953 Comp. (now 52-1-45 NMSA 1978) was not applicable. Michael v. Bauman, 1966-NMSC-079, 76 N.M. 225, 413 P.2d 888, 1966 N.M. LEXIS 2635 (N.M. 1966).
In a workmen’s compensation case in which the claimant suffered a hernia in the course of his employment, the claimant’s refusal to submit to recommended surgical treatment was not, as a matter of law, unreasonable. Helms v. New Mexico Ore Processing Co., 1946-NMSC-037, 50 N.M. 243, 175 P.2d 395, 1946 N.M. LEXIS 442 (N.M. 1946).
Evidence.
—Sufficient.
Employee’s hernia was a compensable workers’ compensation injury because it had not existed before the employee began working for the employer. Barela v. ABF Freight Sys., 1993-NMCA-137, 116 N.M. 574, 865 P.2d 1218, 1993 N.M. App. LEXIS 126 (N.M. Ct. App. 1993).
Workers’ compensation.
The provisions of the former Workmen’s Compensation Act apply to a case where death resulted to the workman from the strangulation of a hernia that existed prior to the injury and the claim was made by dependents. Martin v. White Pine Lumber Co., 1930-NMSC-003, 34 N.M. 483, 284 P. 115, 1930 N.M. LEXIS 4 (N.M. 1930).