Tom Growney Equipment Co. v. Jouett

• Decision Date: 20 May 2005
• Docket Number: No. 486., No. 482, No. 28, No. 481
• Citation: 137 N.M. 497,113 P.3d 320,2005 NMSC 15
• Parties: TOM GROWNEY EQUIPMENT CO., Ace USA, Patterson Drilling, Clearnan Insurance Co., Big Dog Drilling and Highland Insurance Co., Employers-Insurers-Petitioners, v. James JOUETT, Worker-Respondent.
• Court: New Mexico Supreme Court

113 P.3d 320

137 N.M. 497

2005 NMSC 15

TOM GROWNEY EQUIPMENT CO., Ace USA, Patterson Drilling, Clearnan Insurance Co., Big Dog Drilling and Highland Insurance Co., Employers-Insurers-Petitioners, v. James JOUETT, Worker-Respondent.

Nos. 28,481, 28,482, 28,486.

Supreme Court of New Mexico.

May 20, 2005.

Hinkle, Hensley, Shanor & Martin, L.L.P., Thomas D. Haines, Jr., Mary Lynn Bogle, Roswell, NM, Miller Stratvert P.A., Timothy R. Briggs, Jennifer L. Stone, Sturges, Houston & Sexton, P.C., Paul L. Civerolo, Christina M. Bartosh, Albuquerque, NM, for Petitioners.

Max Houston Proctor, Hobbs, NM, for Respondent.

OPINION

SERNA, Justice.

{1} This workers' compensation case involves the questions of whether an initial employer or subsequent employers are liable for disability and medical benefits for a non-disabling injury originally sustained during employment that was exacerbated by subsequent employment resulting in disability and whether the initial or subsequent employers can recover a proportionate share of the compensation amount from the other employers. James Jouett, the worker, appealed from the Workers' Compensation Judge's (WCJ) order denying his claims against three successive employers, Tom Growney Equipment Co. and its insurer, Ace USA (Growney Equipment), Patterson Drilling and its insurer, Clearnan Insurance Co. (Patterson Drilling), and Big Dog Drilling Co. and its insurer, Highland Insurance Co. (Big Dog). The Court of Appeals concluded that Jouett's first employer is liable for medical treatment and for the period of temporary total disability. Jouett v. Tom Growney Equip. Co., 2004-NMCA-023, ¶ 15, 135 N.M. 136, 85 P.3d 260. The Court also concluded that the first employer may seek contribution outside the workers' compensation system from the subsequent employers despite the fact that Jouett became disabled while working for a later employer and despite the exclusivity provisions of the Workers' Compensation Act. Id. ¶ 19. This Court granted the employers' petitions for writ of certiorari.

{2} We conclude that the Workers' Compensation Act provides the exclusive remedies for work-related injuries and that contribution outside the Act from subsequent employers to initial employers is not authorized by statute. We also conclude that the initial employer, Growney Equipment, is not liable for the period of temporary total disability caused by aggravation of the initial non-disabling injury related to the subsequent employment which occurred after Jouett's employment with Growney Equipment ended. We conclude that Big Dog, the employer at the time Jouett became disabled, is potentially liable for disability compensation where the initial non-disabling injury is aggravated by subsequent work-related activities resulting in disability, assuming compliance with the Act. We remand this case to the WCJ to determine whether, under an analysis of applicable law, Big Dog is liable for disability and medical compensation dependent on whether Jouett complied with the Act, as well as to consider whether Growney Equipment is responsible for some portion of Jouett's medical expenses related to the initial accidental injury. Thus, we reverse the Court of Appeals. We affirm the WCJ in part, reverse in part, and remand for further proceedings.

I. Facts and Background

{3} The parties stipulated that Jouett sustained an injury to his left shoulder while employed by Growney Equipment on January 9, 1999. Jouett received medical care from Dr. Steve Hood for this injury, described as muscular in origin, including medication, rest in a harness, massage, and range of motion exercises. Because he apparently "forgot," Jouett did not attend a scheduled follow-up appointment for this injury. The parties stipulated that Jouett had no lost time or disability as a result of this initial injury; thus, he received only medical benefits from Growney Equipment at the time of his initial injury. Jouett was not absent from work due to this injury, was not disabled, and continued working for Growney Equipment until May of 2000, when he left in order to earn a higher wage. The WCJ found that the initial injury arose out of and in the course of employment with Growney Equipment and that the employer had notice of the injury.

{4} Jouett described the difference between his work at Growney Equipment and his subsequent oil rig work and stated that his work on the rigs was more strenuous. From May 10 to May 23, 2000, approximately two weeks, Jouett was employed by Patterson Drilling. In regard to Patterson Drilling's employment application question regarding prior work injuries and claims, Jouett conceded that he failed to indicate on his application that he had a previous work-related injury. Jouett stated that he continued to be in a great deal of pain from the time he left Growney Equipment through his employment at Patterson Drilling. Jouett stated that he injured his shoulder "pulling a six-inch collar" in a work-related accident at Patterson Drilling when the tool pusher was running the rig and "came up too fast;" he claimed he told a driller, but Jouett admitted that he did not report the incident according to procedure or fill out the required accident report. Jouett stated that this work-related accident increased and worsened the pain in his shoulder, describing that "it felt like everything just came apart again" and it "popped and pulled." Jouett described two situations in which performing the requirements of the job, chipping paint and "tripping pipe" at Patterson Drilling, also aggravated his shoulder. Jouett did not seek medical attention for these incidents. A Patterson Drilling employee testified that employees sign a drilling report daily indicating whether they had accidents or injuries, and that Jouett never indicated any injury to his shoulder on these reports. The WCJ found that Jouett did not give actual or written notice to Patterson Drilling regarding any work-related accident within fifteen days of its occurrence.

{5} Aside from some short absences, Jouett was employed by Big Dog from June 6, 2000, until December 14, 2001. Jouett claimed that he continued to have shoulder pain while working for Big Dog, stating that he wore his sling to relieve the pain. In response to a question regarding work incidents in which he injured his shoulder at Big Dog, Jouett described several situations in which he was performing his work duties tripping pipe, working derricks, and carrying 100 pound sacks, and agreed that these activities aggravated his shoulder. Jouett stipulated that, on April 7, 2001, he went to the emergency room and received treatment for his left shoulder, stating that he had injured himself while working on a drilling unit. Jouett received pain medication for this injury, and he was restricted from work until April 12. Jouett stated that he stopped working for Big Dog on May 5, 2001, to try to have his shoulder injury treated. He was examined by another doctor on May 10 and referred to Dr. Frank P. Maldonado, an orthopedic surgeon, for three visits beginning May 15, 2001, until May 31, 2001. Jouett did not give Big Dog notice of any specific injury or disability related to the incidents he described and did not request medical expenses from Big Dog at this time; instead, Jouett requested that Growney Equipment continue paying for medical expenses.

{6} In his medical history, Dr. Maldando recounted that Jouett received "appropriate" "non-operative treatment" for his initial injury from Dr. Hood. Regarding his May 15, 2001, examination of Jouett, Dr. Maldonado described his "muscle wasting or loss of muscle mass about the left shoulder," as well as "some atrophy of his left arm and forearm musculature and significant loss of motion in the left shoulder." Dr. Maldonado reviewed diagnostic radiographs taken on January 13, 1999, and May 10, 2001, noting that "[t]he left shoulder films were normal on the 1999 films, and on the 2001 films they were essentially normal except [for a possible] small osteophyte or bone spur," or abnormal growth off of bone, on the tip of his shoulder blade. He stated that a bone spur can be the result of a specific injury or the result of cumulative injury over time. Dr. Maldonado ordered two additional tests, an MRI and a electrical diagnostic test, which were both normal. Finally, he recommended an arthroscopic examination of Jouett's shoulder to determine whether the bone spur was causing an impingement and whether it could be corrected. He diagnosed Jouett's condition as "painful left shoulder" with an unknown cause, but attributed the condition and disability to the 1999 injury to a reasonable degree of medical probability. In Dr. Maldonado's opinion, Jouett never reached maximum medical improvement following the original injury. However, Dr. Maldonado based these opinions on two questions Dr. Maldonado asked Jouett: whether he had shoulder problems prior to the 1999 injury and whether he had any subsequent injuries, both of which Jouett answered in the negative. After being informed about Jouett's testimony regarding his working conditions and work-related injuries sustained while working for subsequent employers, Dr. Maldonado opined that these subsequent employment activities aggravated his initial injury. During his visits in May of 2001, Dr. Maldonado told Jouett that he was temporarily totally disabled, and he recommended that Jouett not return to work. Despite this recommendation, Jouett subsequently returned to work.

{7} In the summer of 2001, Jouett applied again to work at Big Dog. Jouett continued to work for Big Dog until December of 2001, with the exception of a few weeks in July of 2001, when he worked for Key Drilling. Jouett apparently performed all required duties of his work for Big Dog during this time. Big Dog's attorney, during Jouett's deposition, asked Jouett if he had a conversation with Mike Whitley, Big Dog's safety representative, in June of ...