Hernia Injury Compensation

A hernia is where internal organs or soft tissue protrude through a gap in the muscle or tissue that holds it in place. Hernias generally do not resolve on their own and usually require surgery to provide relief and prevent further complications. In rare cases, they can be life threatening if not treated.

Hernias often develop where there is muscle weakness due to damage from an injury, surgery or old age. Additional factors that may increase your likelihood of developing a hernia include being pregnant, constipated, lifting heavy weights, gaining weight suddenly and persistent coughing or sneezing.

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I have a hernia - can I claim compensation? 

You may be able to claim compensation for a hernia if it resulted because of someone else’s negligence or carelessness, or if it developed over a period of time in the course of your employment.

I developed a hernia from work

If you have acquired a hernia from your work, you may be able to claim compensation from your employer. Employers must provide proper and adequate means for employees to carry out their work. This includes:

• providing safe systems of work;
• maintaining safe machinery and equipment;
• maintaining a safe workplace; and
• providing employees with adequate facilities, training, supervision and instruction.

If you were injured because your employer neglected to provide safe systems of work, equipment or a safe environment, you may be able to sue for personal injury compensation. This includes injuries incurred over a long period of time, late onset injuries, and aggravations of pre-existing injuries.

Examples: Jeff has acquired a double hernia due to frequent pushing and pulling of heavy tools at work. His job requires him to change heavy press tools, however the rails they are mounted on have become damaged meaning considerable physical force is needed to push and pull them into position. This unsafe system of work leads to Jeff’s injury which requires three separate surgeries to fix. Jeff is left with continuing nerve pain in his groin making it painful to walk and lift. Jeff can claim compensation from his employer for his personal injuries. 

Rick is a warehouse worker. His employer has instructed him to use mechanical assistance to lift anything over 25kg and has issued him with a safety harness belt to prevent injury. Despite this, Rick routinely lifts and carries 40kg bags of cement without mechanical assistance and refuses to wear the safety belt. If Rick develops a hernia, he may not be able to claim compensation for his injury as it was due to his own negligence. However, he could apply for Workers Compensation payments while he is off work.

Professions at risk of developing a hernia

Workers most at risk for acquiring a hernia are those with physically demanding jobs that involves frequent heavy lifting or carrying. This increases the pressure in the body and can strain connective tissues. At-risk occupations include: builders, concrete layers, brick layers, nursing-home workers, warehouse workers, landscapers, cleaners and other manual workers.

See also: WorkCover Claims

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Symptoms of a hernia

50 percent of patients with a hernia do not experience symptoms. The 50 percent who do experience symptoms with a hernia commonly notice a bulge or lump in the abdomen or groin area and experience pain and discomfort, weakness or pressure in the abdomen, and a burning or aching sensation at the site of the bulge.

Common types of hernia injuries

• Hiatal hernia: upper portion of the stomach protrudes into the chest cavity through an opening in the diaphragm;
• Inguinal hernia: organs such as the bladder or intestine protrude through the abdominal wall into the groin
• Epigastric hernia: fatty tissue protrudes through the abdominal wall between the naval and sternum;
• Spigelian hernia: part of the bowel protrudes through the abdominal wall below the naval;
• Femoral hernia: intestine or other tissue protrudes through a weak spot in the groin;
• Ventral / Incisional hernia: tissue protrudes through the site of a previous surgical incision.

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Common causes of hernias

Hernias generally result from a combination of muscle weakness and straining. In many cases they can arise without any obvious cause. However there are some risk factors that may increase their likelihood:

• Trauma or injury: Injuries can create weaknesses in the muscle where tissue can bulge;
• Surgery: Incisions from surgery can create weakness in the abdominal wall from which organs may protrude;
• Lifting carrying heavy objects: Undue straining can cause tissue to bulge where weaknesses exist;
• Sporting injuries: Strained abdominal muscles may result from sporting activities that place pressure or strain on abdominal muscles.

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Potential long term impacts of a hernia 

If corrective surgery is carried out early, prospects of recovery from a hernia are excellent and most patients have no ongoing problems or limitations. In rare cases, severe or “double” hernias may result in ongoing pain.

I have a hernia - what can I claim for?

General damages

General damages compensate you for the pain and suffering you have experienced as well as any permanent loss of enjoyment of life that results from your injury. They are calculated by reference to the ISV Scale which rates the seriousness of any injury between 1 and 100 and accords a monetary value range to that rating. 

For example a severe hernia has an ISV range of 11 to 20 corresponding to a monetary range of $17,310 to $36,250 whereas a minor hernia will attract an ISV of between 0 and 5 with a monetary range of $0 to $6,950.

Medical costs

To diagnose and treat a hernia you may need to consult your general practitioner, consult a specialist, obtain x-rays or other scans, take pain medications and wear special medical apparatus. The expenses you incur to obtain medical treatment including costs of consultations, diagnostic scans, travel costs, medication and medical equipment may be claimed as compensation.

You can also claim for medical costs you will incur in the future as a result of your injury. Hospital and surgical costs. Surgery may be required to repair a hernia. Surgical and hospital costs paid by you can be claimed as compensation as long as the surgery was necessary to treat your condition. Rehabilitation costs. Rehabilitating after a hernia may involve physiotherapy, chiropractic treatments, acupuncture or other therapies. Your reasonable costs of rehabilitation can be claimed back as compensation.

Loss of income and future earning capacity

If you suffer a hernia you may need time off work for several weeks or months. You can claim compensation for this lost income.

If your hernia prevents you from working to the same extent as you did prior to the injury you may also be able to claim loss of future income earning capacity. Occupations that require manual labour may be difficult or impossible for someone who has suffered a hernia previously and their capacity to earn income in the future may be reduced. This is usually estimated as a lump sum figure based on the age of the person, their usual occupation and other skills.

Loss of superannuation

Compensation can be claimed for superannuation that would have been paid on lost income.

Care and assistance

A severe hernia may prevent you from being able to perform tasks such as cleaning, mowing your lawns, caring for the garden or other domestic chores. If you formerly performed these duties but are now unable to due to an injury you can claim compensation for care and assistance provided to you by friends, relatives or paid contractors. 

In Queensland there is a minimum threshold for this type of compensation.

Interest

Interest can generally be claimed on compensation for any out of pocket expenses that are incurred before your claim is resolved.

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How will my compensation be calculated?

In general terms, the amount of compensation is gauged by comparing what your life was like before the injury and what it is like now, as a result of the injury.

Someone whose injury has had a greater impact on their life will be entitled to more compensation than someone whose injury has had only minimal impact.

The amount of compensation payable for a hernia will vary greatly from case to case, depending on a variety of variables such as:

• the severity of the hernia: more severe injuries will attract more compensation;
• the age of the patient: young people are likely to receive greater compensation than older people for a similar injury as it will impact their lifestyle and employment for a longer period of time;
• level of health prior to the incident: an active and healthy person may suffer more from an injury because they are unable to exercise the way they did prior to the accident and may become predisposed to mood disorders and other health conditions they may not have suffered were it not for their injury;
• pre-incident lifestyle: injured claimants who formerly engaged in activities they can no longer participate in may experience greater a impact from their injuries;
• occupation: greater compensation will be payable where a person’s ability to work in their former occupation is impacted severely by their injuries, for example, a warehouse labourer will suffer a greater loss as a result of a hernia than a person who works part-time in an office and will therefore receive greater compensation for their injury.

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What time limits apply to start a hernia compensation claim?

For most personal injury claims, a legal action must be commenced within 3 years of the date of the injury. If you miss this deadline, you will lose the right to claim compensation.

However, depending on where your injury occurred or who you are claiming against, specific pre-court procedures may apply which may have much shorter time limits. If you miss these time limits you may lose your right to claim unless you can provide good reason for delaying and why you should be allowed to proceed with your claim. 

Those aged under 18 will typically have until they are 21 to start the claims process.

In addition, getting accurate records such as CCTV or reliable witness statements for example may be difficult if starting a claim several years after the incident.

In summary, it’s best to seek expert legal advice as soon as possible to ensure you understand your rights and the required evidence to make a strong claim can be gathered. View time limit information article for more detail.

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What to do if you have suffered a hernia

Depending on the nature of your hernia and the circumstances which caused it, compensation may or may not be available. You should always seek expert legal help to see if you are able to make a claim.