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Tom Growney Equipment Co. v. Jouett5/20/2005
proposed decision, the WCJ indicated that he based this decision on the fact that Mike Whitley, Big Dog's safety representative, testified that Jouett had never mentioned any accident, that a second Big Dog employee had testified that there was no notice of injury made to the company, and that Jouett, although responsible for preparing drilling well logs, did not report an accidental injury to his shoulder on these logs. Based on this explanation, the WCJ appeared to believe that Jouett was required to give notice to Big Dog fifteen days after a specific "accident," rather than the date of Jouett's disability. From a review of the record, and due to Jouett's emphasis on the 1999 accidental injury, it appears that the parties also measured the notice requirement from the date of the initial accident or the subsequent discrete accidents at Patterson Drilling or Big Dog described somewhat inconsistently by Jouett. However, in a case such as the present one, where aggravation of a prior injury results in disability, notice must be measured from the date of disability, as discussed further below.
{32} NMSA 1978, § 52-1-29(A) (1991) provides that workers "shall give notice in writing to [their] employer of the accident within fifteen days after the worker knew, or should have known, of its occurrence." This provision required that Jouett give notice in writing to Big Dog of the accident within fifteen days after he knew, or should have known, of its occurrence. "No written notice is required to be given where the employer or any superintendent or foreman or other agent in charge of the work in connection with which the accident occurred had actual knowledge of its occurrence." Section 52-1-29(A). Thus, if Big Dog or an agent in charge of the work had actual knowledge of Jouett's accidental injury, Jouett is not required to give written notice. The statute of limitations requires Jouett to file a claim within one year after an employer fails or refuses to pay him compensation . See NMSA 1978, § 52-1-31(A) (1987).
{33} Big Dog argues that Jouett failed to give notice, contending that Jouett was required to do so when his injury was aggravated by his work duties, on his daily tour sheets, when he sought medical treatment for his shoulder in April of 2001, and when he had accidental injuries chipping paint, pulling drill collars, or tripping pipe. Big Dog further argues that Jouett knew that, in Dr. Maldonado's opinion, he was temporarily totally disabled in May of 2001, when he briefly stopped working for Big Dog in order to seek treatment for his shoulder. We note that Big Dog, in its discussion of the Court of Appeals' holding that the WCJ's findings and conclusions were to be vacated as premature because the extent of the injury to Jouett's shoulder had not been ascertained, correctly argues that disability triggers liability for compensation and recognizes that Jouett claimed that he could not longer perform his duties due to disability on December 14, 2001. However, Big Dog continues to argue that Jouett was required to give notice, not as measured from December 14, 2001, but from the date of alleged work accidents and the dates when Jouett sought medical care. The date of disability, as determined by the WCJ on remand, will also determine the date from which notice is to be measured.
{34} Establishing the date of the "accident" "is essential to determine whether the employer had written notice or actual knowledge" pursuant to Section 52-1-29(A). Herndon, 92 N.M. at 639, 593 P.2d at 474. In Herndon, the Court of Appeals addressed notice in the context of a work-related accident that later became disabling due to employment activities where the worker did not give written notice of the injury
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