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Garnsey v. Concrete6/28/1996
APODACA, Chief Judge.
{1} Concrete Incorporated and Builder's Trust of New Mexico (referred to collectively as Employer) appeal the workers' compensation Judge's (the Judge) decision granting William Garnsey (Worker) benefits for an injury he sustained as an employee. Employer argues that Worker did not provide timely notice of the accident under NMSA 1978, Section 52-1-29(A) (Repl. Pamp. 1991) (effective Jan. 1, 1991). We disagree with Employer's contention and thus affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
{2} Every employee who drove a truck for Employer was required each morning to open the hood of his assigned truck to check the oil and water of the vehicle's engine. The hood, which weighed approximately eighty pounds, had to be pushed upward manually by the employee. One of the trucks had mud flaps attached to the hood and, when the hood was raised, the mud flaps would sometimes suddenly catch, instantly stopping the hood's upward motion. On July 14, 1994, Worker attempted to open the hood of his assigned truck so he could perform the mandatory check. As he pushed the hood upward, the mud flaps caught, and the hood locked. Worker felt a sharp pain in his neck, not unlike a cramp, and attempted to massage it out. Within a half-hour of the initial discomfort, the pain subsided. Worker told his boss later that morning that one day the hood was going to kill him. However, because his neck no longer hurt, Worker did not formally notify Employer of the incident. That night he told his wife and sister that the hood had caught but did not mention any present neck pain or neck injury .
{3} The next day Worker noticed some numbness and heaviness in his arm. He attributed this sensation to the position of his arm when driving the truck. Over the next several days the pain in his arm gradually intensified and spread into his shoulder and hand. Worker began to take between five and eight aspirin every few hours to help alleviate the pain. He testified that he never associated the pain in his shoulder, arm, and hand with the hood incident because, other than the brief amount of time that his neck hurt immediately after the hood stuck, he had not felt any pain in his neck.
{4} At the urging of his wife, Worker decided to seek medical attention. On August 11, 1994, he saw Dr. DuBose. Worker testified that he complained solely of shoulder and arm pain during the examination, although Dr. DuBose's notes indicate that Worker experienced pain in his right shoulder, radiating to his back and neck. Some tests were performed, and Worker was instructed to return a week later for the results. When Worker returned on August 17, 1994, the doctor indicated that Worker might have a pinched nerve in his neck. Worker, wondering for the first time if perhaps the hood incident could have been the cause of his shoulder and arm pain, voiced his thoughts to the doctor. Dr. DuBose responded that he would defer to an expert on that question and referred Worker to Dr. Heilbronn, a specialist. On August 24, 1994, Dr. Heilbronn diagnosed Worker as suffering from a herniated disk and scheduled him for corrective surgery on August 25, 1994. The surgery was performed as scheduled. On August 29, 1994, Worker provided written notice to Employer of his injury .
{5} After a trial on the merits, the Judge determined that Worker had suffered his accident on July 14, 1994, but that he did not know or should not have known he had a compensable claim until his second visit with Dr. DuBose on August 17, 1994. The Judge held that, because Worker had provided Employer with written notice on August 29, 1994, within fifteen days of August 17, 1994, Employer had timely notice of the July 1
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