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Tom Growney Equipment Co. v. Jouett5/20/2005
the employer "at the time of the first accidental injury[,] remain liable for compensation benefits payable for disability resulting therefrom." Id. at 386, 648 P.2d at 1199 (emphasis added). Rather, the question is which employer is liable when the worker suffered an initial non-disabling injury, aggravated the injury through later employment, and became disabled while working for a successive employer. "The employer and compensation carrier at the time of the second accidental injury are initially liable for disability resulting from the second accidental injury, to the full extent of the disability." Id. As discussed further below, this liability on the part of the successive employer may be reduced under Section 52-1-47(D) if the initial injury resulted in disability prior to the subsequent injury. See id.
{27} Thus, under both Salinas-Kendrick and Stanke-Brown, Big Dog is potentially responsible for Jouett's disability claim because disability resulting from the subsequent accident, regardless of the pre-existing condition, that is, Jouett's initial injury 1999 injury, is compensable by the employer and compensation insurer at the time of the subsequent accident. It is undisputed that Jouett suffered a work-related accident while employed with Growney Equipment. It is also undisputed that Jouett was not disabled at the time of his initial injury. Perhaps the confusion in this case is partially the result of whether or not Jouett suffered an "accidental injury" resulting in his 2001 disability while working for Patterson Drilling or Big Dog. The WCJ found that Jouett suffered work-related accidents that resulted in injury while working for his subsequent employers, Patterson Drilling and Big Dog. Further, our precedent does not require a discrete "accident," in the traditional sense, if employment activity itself aggravates a pre-existing injury and results in disability, which is also consistent with the WCJ's finding that Jouett's work with Patterson Drilling and Big Dog aggravated his initial shoulder injury.
{28} The Court of Appeals, in an earlier case, described the rule in New Mexico for what constitutes an accident: " f the stress of labor aggravates or accelerates the development of a pre-existing infirmity causing an internal breakdown of that part of the structure, a personal injury by accident does occur." Herndon v. Albuquerque Pub. Sch., 92 N.M. 635, 640, 593 P.2d 470, 475 (Ct. App. 1978). In Herndon, the worker had a pre-existing back condition caused by non-industrial accidents. Id. at 637, 593 P.2d at 472. The worker suffered an employment-related accident resulting in severe back pain in June; she continued to work for several weeks before becoming disabled in September as a result of the severe pain. Id. at 637-38, 593 P.2d at 472-73. The Court of Appeals summarized that a worker has suffered an accidental injury if he or she has pre-existing pain from a previous work-related accident, continues "normal employment under pain," and subsequently suffers a disability that was "caused or accelerated while working." Id., at 640, 593 P.2d at 475. " malfunction of the body itself . . . caused or accelerated by doing work required or expected in employment is an accidental injury within the meaning and intent of the compensation act." Id. (emphasis omitted) (quoted authority omitted). Under these circumstances, where a work-related accidental injury is aggravated by continued employment activities but the worker continues normal employment under pain resulting in later disability, the Court concluded that the time and place of the "accident," for purposes of "definiteness and certainty" of the Act, is the date the worker became disabled. Id. at 639, 642, 593 P.2d at 474, 477.
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