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Garnsey v. Concrete6/28/1996
t to the time of the surgery, other than a cramping type pain that subsided approximately a half-hour after the initial discomfort. Testimony from both Worker and his wife also indicated that, although he experienced discomfort from the time of the incident, because it was so gradual and because the discomfort was not in his neck, he never made the connection with the hood incident until his second visit with Dr. DuBose on August 17, 1994. Dr. Fogel testified that a "history . . . of having felt some pain first in the neck, associated with stiffness, and then having a gradual or nonprecipitous increase in pain in the arm, is really pretty classical for a disc herniation of the neck."
{20} Employer notes that, when Worker first sought medical attention after the incident, Dr. DuBose had written in his notes that Worker had been experiencing pain in his shoulder radiating to his neck. Employer also contends there was testimony that the shoulder and arm pain immediately after the incident was greater than described by Worker at trial. This was evidenced by the fact that a week after the incident Worker was taking between five and eight aspirin every few hours. Thus, Employer contends, Worker knew he was injured at the time of the incident. The issue on appeal, however, is not whether there is evidence to support an alternative result but whether the result below is supported by substantial evidence. . It is the duty of the fact-finder to weigh the evidence and resolve any conflicts. ), certs. denied, 109 N.M. 262, 284 P.2d 1005 (1990). We determine that there was substantial evidence, specifically the consistent testimony of Worker and his wife that Worker felt no discomfort in his neck after the initial pain, for the Judge to conclude that Worker's injury was a latent injury that could not have been discovered before August 17, 1994.
{21} In his answer brief, Worker claims that Employer had actual knowledge of the accident on the day of the hood incident, which met the notice requirements. Because of our Disposition, however, we need not address this issue.
III. CONCLUSION
{22} We conclude that Section 52-1-29(A) allows a worker to give notice of an accident within fifteen days after the worker knew or should have known by the exercise of reasonable diligence that he had a compensable injury . Because the Judge, as the trier of fact, determined that Worker suffered a latent injury not discoverable until August 17, 1994, the notice given by Worker was timely. The Judge therefore did not abuse his discretion, and we affirm.
{23} IT IS SO ORDERED.
RUDY S. APODACA, Chief Judge
WE CONCUR:
BENNY E. FLORES, Judge
RICHARD C. BOSSON, Judge
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