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Tom Growney Equipment Co. v. Jouett5/20/2005
employer on January 31. Id. The hearing officer barred the claim because of his failure to provide timely notice to his employer of the December 14 accident. Id. This Court noted that " he time for giving notice begins to run when the employee knows, or should know by the exercise of reasonable diligence, that [the worker] has sustained a compensable injury." Id. We recognized that " his rule concerns the worker's knowledge of some legal disability or inability to perform work." Id. Although we noted that actual disability is not required, the worker must be "impaired and unable, at least to some percentage extent, to perform the job for which the worker is suited. The period for written notice does not begin to run until the claimant is charged with such knowledge." Id. (citation omitted). " his recognition may become apparent to a worker [such as Jouett] only after loss of the capability to perform regular duties, notwithstanding the fact that some time has elapsed from the date of the original incident during which the worker was able to perform usual tasks while experiencing pain." Id.
{37} In the present matter, although Jouett was told in May of 2001 that he had a compensable disability and should not continue working, Jouett apparently managed to continue to perform the usual tasks required at Big Dog for approximately six more months before he was no longer able to work due to aggravation of his injury, resulting in disability. See Martinez v. Darby Constr. Co., 109 N.M. 146, 150, 782 P.2d 904, 908 (1989) (discussing a worker who failed to give notice regarding an accidental neck injury, despite advised medical treatment, but gave notice following disability, six months later, and concluding that, where "the evidence concerning his ability to perform his regular duties, albeit in pain, indicates that no special accommodations were made for the claimant" and he did not do less work or work fewer hours, the worker's belief was "within the bounds of reason"). Although the workers in Gomez and Martinez were not advised, as Jouett was in May of 2001, that they were temporarily disabled before they continued to work, Big Dog, involved in Jouett's claim by September of 2001, appears to have had much more information regarding his condition while he continued as an employee than the employers in those cases.
{38} Big Dog bases its arguments on a failure to give notice while Jouett was continuing his employment with Big Dog rather than the date of disability. However, the date of disability is the operative date with regard to notice. Big Dog argues that Jouett knew or should have known of his disability by May 15, 2001, when Jouett sought medical treatment for his shoulder and Dr. Maldonado told him that he should not return to work because he was temporarily totally disabled. We agree that it was, from a health standpoint, clearly a mistake for Jouett to continue working with his self-described severe pain and muscle atrophy. However, Jouett, despite the pain he describes as extreme, was apparently able to continue to perform the requirements of heavy labor on drill rigs for Key Drilling and Big Dog for several months to the presumed satisfaction of these employers. Big Dog rehired Jouett in the summer of 2001, and Jouett continued to work in his normal job until December of 2001 when he claimed he could no longer work due to disability. Despite Big Dog's awareness of Jouett's initial shoulder injury and his ongoing claim against all three employers, including Big Dog, during this time, Jouett evidently continued to work for Big Dog performing his strenuous duties. Nothing in this discussion, however, should be viewed as preventing the parties, following remand, from arguing that Jouett was not perfo
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