Hernia Injuries in Maryland Set to Become Compensable as Occupational Diseases on October 1, 2023

The Maryland General Assembly passed legislation this spring expanding the compensability of hernia work injuries under the Workers’ Compensation Act (“Act”). Hernia injuries in Maryland will now be compensable as occupational diseases when a hernia is the result of repetitive trauma.

Senate Bill 839 was signed into law by Governor Moore on May 3, 2023, along with the identical House Bill 902. The law is effective beginning October 1, 2023, and the specific amendment will be codified at Md. Code, Lab & Empl. § 9-504(c).

Under Maryland Workers’ Compensation law, compensable hernia injuries have historically been treated differently than ‘typical’ work injuries, with a stricter standard of compensability. The statutory standard for compensability of hernias prior to this new law states:

(a) Except as otherwise provided, an employer shall provide compensation in accordance with this title to a covered employee for a hernia caused by an accidental personal injury or by a strain arising out of and in the course of employment if:

(1) the covered employee provides definite proof that satisfies the Commission that:

(i) the hernia did not exist before the accidental personal injury or strain occurred; or

(ii) as a result of the accidental personal injury or strain, a preexisting hernia has become so aggravated, incarcerated, or strangulated that an immediate operation is needed; and

(2) notwithstanding any other provision of this title about notice, the accidental personal injury or strain was reported to the employer within 45 days after its occurrence.

(b) If a covered employee fails to file a claim for compensation for a hernia caused by an accidental personal injury within the time period required under §9-709(a) of this title, the covered employee may file the claim within 2 years after the date the accidental personal injury occurred unless the employer or its insurer has been prejudiced by the failure.

Md. Code, Lab. & Empl. § 9-504 [Effective Until 10/01/2023].

The new law will add the following provision to the statute:

(c) Notwithstanding any other provision of this title, a hernia caused as a result of repetitive trauma may be:

(1) considered an occupational disease; and

(2) compensable subject to §9-502 of this subtitle.

Md. Code, Lab. & Empl. § 9-504 (Amended by 2023 Md. Laws, Ch. 412, Sec. 1, eff. 10/01/2023. Amended by 2023 Md. Laws, Ch. 411, Sec. 1, eff. 10/01/2023) (emphasis added).

The new law essentially now recognizes two separate types of hernia injuries: (1) traditional ones caused by accidental injury or strain, officially called inguinal hernias; and (2) athletic pubalgia hernias, commonly called sports hernias, which develop over time with repetitive trauma. The new law also creates different notice requirements for each type of hernia. Workers will have 45 days after the occurrence to notify their employer about a traditional hernia caused by accidental injury or strain, which contains no change from the existing requirement. However, workers will now have 1 year after the worker knows or has reason to believe the worker has a repetitive trauma hernia (i.e., occupational disease) to notify their employer. See Md. Code, Lab. & Empl. § 9-705(a)(1) (stating notice requirement for occupational diseases).

The new standard for compensable hernia injuries was seemingly passed by the General Assembly in direct response to a 2020 decision by the Maryland Court of Special Appeals on this precise issue. In Greer v. Montgomery County, the Court held that while hernias resulting from a specific injury or strain are compensable, they are not compensable as an occupational disease. Greer v. Montgomery County, 246 Md. App. 245 (Md. App. 2020). In reaching the holding, the Court analyzed the statutory language of § 9-504, along with the Act as a whole, and concluded the legislature’s clear intent was to exclude hernia injuries from compensability as occupational diseases. The General Assembly has now spoken to remedy the Greer decision and render its holding inapplicable beginning on October 1, 2023.

The new standard of compensability for hernia injuries will undoubtedly provide a separate, and perhaps easier, avenue for injured workers with hernia conditions to obtain workers’ compensation coverage. While expanding compensability, it is unclear to what extent the change will increase hernia claims before the Workers’ Compensation Commission (“Commission”). Additionally, it is unclear how the Commission will address occupational disease hernias coming before it. The Commission will now be tasked with analyzing new issues in hernia claims that come with occupational disease compensability, such as causation of the hernia (or hazard) itself and employer/insurer liability under the last injurious exposure standard.

Matthew Harkins