Anaya v. Big Three Industries, Inc., 1286

• Decision Date: 27 March 1974
• Docket Number: No. 1286,1286
• Citation: 1974 NMCA 27,86 N.M. 168,521 P.2d 130
• Parties: Robert ANAYA, Plaintiff-Appellant, v. BIG THREE INDUSTRIES, INC., and Highlands Insurance Company, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 130

521 P.2d 130

86 N.M. 168

Robert ANAYA, Plaintiff-Appellant, v. BIG THREE INDUSTRIES, INC., and Highlands Insurance Company,

Defendants-Appellees.

No. 1286.

Court of Appeals of New Mexico.

March 27, 1974.

Scotty N. Oliver, Hannett, Hannett, Cornish & Barnhart, Albuquerque, for plaintiff-appellant

Peter G. Prina, Gene C. Walton, Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, for defendants-appellees.

OPINION

WOOD, Chief Judge.

In this workmen's compensation case, the trial court concluded that neither actual notice nor written notice had been given in compliance with § 59--10--13.4, N.M.S.A.1953 (Repl. Vol. 9, pt. 1). Plaintiff appeals from the dismissal of his claim.

Section 59--10--13.4, supra, reads:

'A. Any workman claiming to be entitled to compensation from any employer shall given notice in writing to his employer of the accident and of the injury within thirty (30) days after their occurrence; unless, by reason of his injury or some other cause beyond his control the workman is prevented from giving notice within that time, in which case he shall give notice as soon as may reasonably be done, and at all events not later than sixty (60) days after the occurrence of the accident.

'B. 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.'

Actual notice.

To avoid the requirement of written notice only actual knowledge of the accident is required. Beckwith v. Cactus Drilling Corporation, 84 N.M. 565, 505 P.2d 1241 (Ct.App.1972). Such actual knowledge must be acquired within the time provided for giving written notice. Rohrer v. Eidal International, 79 N.M. 711, 449 P.2d 81 (Ct.App.1968). If there was actual knowledge of the accident in this case, it was timely. The issue is whether the evidence supports the findings of the trial court to the effect that there was no actual knowledge.

The evidence is that on the day of the alleged accident, plaintiff was working with his immediate supervisor in effecting repairs to equipment. The two worked together on the repairs on Friday, Saturday (until noon) and on the following Monday. The dates are January 7, 8 and 10, 1972. On Friday morning, the two lifted a hopper from a generator. According to plaintiff, the accident occurred during this lifting. Also, according to plaintiff, he told the supervisor he had hurt his back at the time it happened on Friday, and also informed him about the accident while they were working together on Saturday and Monday.

The supervisor's testimony differs. The supervisor repeatedly testified that he had no recollection of plaintiff stating that he had hurt his back and no recollection of any complaints of back pain by plaintiff on any of the three days the two worked together.

Plaintiff asserts the supervisor's 'no recollection' testimony does not conflict with plaintiff's positive testimony. See Ratley v. Industrial Commission, 74 Ariz. 347, 248 P.2d 997 (1952). He asserts that apart from the 'no recollection' testimony, there is no evidence which conflicts with plaintiff's testimony concerning actual knowledge. On this basis, he contends the uncontradicted evidence rule applies and requires us to hold that the supervisor had actual knowledge of the accident. See Medler v. Henry, 44 N.M. 275, 101 P.2d 398 (1940).

We need not decide the effect of 'no recollection' testimony in this case. There is other evidence which conflicts with plaintiff's testimony. Because of this conflicting evidence, the uncontradicted evidence rule is not applicable.

The conflicting evidence was testimony of the supervisor and of the employer's plant manager. The supervisor testified he was 'positive' that plaintiff made no statement to him about his back; that he was 'sure' that plaintiff never stated he had hurt his back; that he was 'certain' that plaintiff did not report an injury to him. Asked if a report of injury on Friday, Saturday and Monday could have occurred and he could have failed to remember these reports, the supervisor stated: 'Not three days in a row, no, sir.' Assuming this testimony of the supervisor conflicts with his 'no recollection' testimony, the conflict was to be resolved by the trial court. Rohrer v. Eidal International, supra.

The manager testified that he learned of plaintiff's claim on March 6, 1972, and on that date questioned the supervisor about the claim. According to the manager, the supervisor stated he had no knowledge of plaintiff getting hurt; that plaintiff 'didn't make any report to him at all.'

The foregoing evidence conflicts with plaintiff's testimony and is substantial evidence, if believed, that the supervisor had no actual knowledge of the accident. It was for the trial court to resolve the conflict. Rohrer v. Eidal International, supra. The trial court resolved the conflict in finding an absence of actual knowledge. It did not err in doing so.

Written notice.

Section 59--10--13.4(A), supra, requires written notice 'to his (the workman's) employer of the accident and of the injury within thirty (30) days after their occurrence.' An insurance adjuster for the employer's workmen's compensation insuror received written notice of an accident and injury on February 22, 1972. The trial court found that plaintiff knew or should have known of the accident and injury on January 7, 8 and 10, 1972. We view this finding as a finding that plaintiff knew or should have known of a compensable injury on these dates. The trial court also found that no written notice of the accident and injury was given to the employer or any agent within the time periods provided in § 59--10--13.4(A), supra. The conclusion of no written notice is necessarily based on these findings. Plaintiff asserts the evidence does not support the findings. We agree.

There are two parts to the written notice issue. They are: (1) the time for giving written notice and (2) the person to whom written notice was given.

(1) Time for giving written notice.

The sixty day provision of § 59--10--13.4(A), supra, is not involved. Our concern is with the requirement that written notice of the accident and injury be given within thirty days after their occurrence. This requirement means: 'The period limited for this notice begins to run from the time the workman knows, or should know by the exercise of reasonable diligence, that he has sustained injury by accident in the course of his employment.' Montell v. Orndorff, 67 N.M. 156, 353 P.2d 680 (1960). The knowledge of a workman, with which this rule is concerned, is knowledge of a compensable injury. Langley v. Navajo Freight Lines, Inc., 70 N.M. 34, 369 P.2d 774 (1962). 'The period for written notice does not begin to run until plaintiff is charged with such knowledge.' Rohrer v. Eidal International, supra.

There is no evidence that plaintiff knew or should have known of a compensable injury through January 10, 1972. During that period of time plaintiff worked at his regular job. For a reason unrelated to the workmen's compensation claim, plaintiff was discharged at the end of his work on January 10th. At that time, according to testimony elicited on cross-examination, plaintiff intended to return to work the following day, had no intention of discontinuing his work and had planned to continue his work.

Compensation is paid only when there is a disability. Section 59--10--13.3, N.M.S.A.195...