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Tom Growney Equipment Co. v. Jouett5/20/2005
{29} Jouett's aggravation of his 1999 non-disabling injury through his employment duties at Patterson Drilling and Big Dog, where he performed his work, albeit in pain, resulting in his 2001 disability, thus constitutes an "accidental injury" within the meaning and intent of the Workers' Compensation Act regardless of whether Jouett had other discrete work-related accidents while employed with Patterson Drilling and Big Dog. See Herndon, 92 N.M. at 640, 593 P.2d at 475 ("The `accident' was the subsequent and continued strain on plaintiff's back that resulted in an accidental injury on September 2, 1975 [when she terminated her employment because of disability due to severe pain]."). Despite any pain he may have suffered due to accidents or aggravation of his injury, Jouett did not become disabled during the two weeks he worked for Patterson Drilling, so this employer is not liable for disability compensation. Big Dog is potentially responsible for Jouett's 2001 disability claim because it was his employer at the time of the second accident or aggravation of his injury resulting in disability, if Jouett complied with other requirements of the Act. See Salinas-Kendrick, 118 N.M. at 166, 879 P.2d at 798, Stanke-Brown, 98 N.M. at 383, 648 P.2d at 1196.
{30} The WCJ did not determine a date of disability for Jouett. The WCJ may have decided that a specific determination was unnecessary because, under the facts of this case, Jouett became disabled in 2001 while employed by Big Dog, either in May, when he was told by Dr. Maldonado that he was temporarily totally disabled and should not continue his work with Big Dog, or as of December 14, 2001, when he quit work with Big Dog because he could no longer perform his duties due to his injury. We do not fault the WCJ; we agree with the WCJ that this is a complex case, both factually and substantively, as also demonstrated by the efforts of the Court of Appeals. However, we believe that the date of disability is an ultimate fact necessary for a determination of liability. See Torres v. Plastech Corp., 1997-NMSC-053, 13, 124 N.M. 197, 947 P.2d 154. "Conclusions of law must be supported by findings of ultimate fact." Id. We assume that Jouett became disabled as of December 14, 2001. This fact appears to be consistent with both the record and the definition of temporary total disability as "the inability of the worker , by reason of accidental injury arising out of and in the course of [the worker's] employment, to perform [the worker's] duties prior to the date of [the worker's] maximum medical improvement." NMSA 1978, ยง 52-1-25.1(A) (1991). Although the medical expert may not have been able to give an opinion as to what percentage of Jouett's disability was the result of work performed at Growney Equipment, Patterson Drilling, and Big Dog, it appears that Jouett became disabled as of December 14, 2001, when he could no longer perform his employment duties. For purposes of this analysis, December 14, 2001, is therefore the operative date for determining liability for Jouett's disability compensation . We recognize that there continues to be argument by some of the employers that Jouett became disabled earlier. Notwithstanding our assumption, on remand we direct the WCJ to determine the date of disability and consider arguments contrary to our assumption.
C. Notice
{31} The date of disability is an ultimate fact necessary to determine not only liability for compensation, but also notice. See Torres, 1997-NMSC-053, 13. The WCJ decided that Jouett failed to give written or actual notice to Big Dog and to Patterson Drilling, which barred Jouett's recovery for disability compensation from these employers. With regard to Big Dog, in his notice of
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